Political Law 2017 Syllabus

Notes and Cases
POLITICAL LAW AND PUBLIC INTERNATIONAL LAW

Attorney EDWIN REY SANDOVAL
January 16 – July 28, 2017
POLITICAL LAW
THE CONSTITUTION
The Doctrine of Constitutional Supremacy
Under the doctrine of constitutional supremacy, if a

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

the Constitution
A provision which lays down a general principle, such

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

Self-executing
Unless it is expressly provided that a legislative act is

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

Legislative or Executive Act
A legislative or executive act that is declared void for

being unconstitutional cannot give rise to any right or
obligation. (Commissioner of Internal Revenue v. San
Roque Power Corporation, G.R. No. 187485, October
8, 2013 cited in Maria Carolina P. Araullo, et al. v.
Benigno Simeon C. Aquino III, et al. G.R. No., 209287,
728 SCRA 1, July 1, 2014, En Banc [Bersamin])
The Operative Fact Doctrine
The doctrine of operative fact recognizes the

existence of the law or executive act prior to the
determination of its unconstitutionality as an operative fact
that produced consequences that cannot always be
erased, ignored or disregarded. In short, it nullifies the
void law or executive act but sustains its effects. It
provides an exception to the general rule that a void or
unconstitutional law produces no effect. But its use must
be subjected to great scrutiny and circumspection, and it
cannot be invoked to validate an unconstitutional law or
executive act, but is resorted to only as a matter of equity

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and fair play. It applies only to cases where extraordinary
circumstances exist, and only when the extraordinary
circumstances have met the stringent conditions that will
permit its application. (Maria Carolina P. Araullo, et al. v.
Benigno Simeon C. Aquino III, et al. G.R. No., 209287,
728 SCRA 1, July 1, 2014, En Banc [Bersamin])
Operative Fact Doctrine Applied in the DAP

(Disbursement Acceleration Program) Case
e find the doctrine of operative fact applicable to the

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adoption and implementation of the DAP. Its application to
the DAP proceeds from equity and fair play. The
consequences resulting from the DAP and its related
issuances could not be ignored or could no longer be
undone.
As already mentioned, the implementation of the DAP

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

adequately shown as to be beyond debate that the
implementation of the DAP yielded undeniably positive
results that enhanced the economic welfare of the country.

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To count the positive results may be impossible, but the
visible ones, like public infrastructure, could easily include
roads, bridges, homes for the homeless, hospitals,
classrooms and the like. Not to apply the doctrine of
operative fact to the DAP could literally cause the physical
undoing of such worthy results by destruction, and would
result in most undesirable wastefulness. (Maria Carolina
P. Araullo, et al. v. Benigno Simeon C. Aquino III, et al.
G.R. No., 209287, 728 SCRA 1, July 1, 2014, En Banc
[Bersamin])
The Doctrine of Operative Fact Extends as well to a

Void or Unconstitutional Executive Act
he term executive act is broad enough to include

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any and all acts of the Executive, including those that are
quasi-legislative and quasi-judicial in nature.
In Commissioner of Internal Revenue v. San Roque

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

It is clear from the foregoing that the adoption and the
implementation of the DAP and its related issuances were
executive acts. The DAP itself, as a policy, transcended a
merely administrative practice especially after the
Executive, through the DBM, implemented it by issuing
various memoranda and circulars. (Maria Carolina P.
Araullo, et al. v. Benigno Simeon C. Aquino III, et al.
G.R. No., 209287, 728 SCRA 1, July 1, 2014, En Banc
[Bersamin])
The Presumption of Good Faith Stands in the DAP

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Case despite the Obiter Pronouncement

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

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

For sure, the Court cannot jettison the presumption of
good faith in this or in any other case. The presumption is
a matter of law. It has had a long history. Indeed, good
faith has long been established as a legal principle even in
the heydays of the Roman Empire. X x x

Relevantly the authors, proponents and implementers
of the DAP, being public officers, further enjoy the
presumption of regularity in the performance of their
functions. This presumption is necessary because they
are clothed with some part of the sovereignty of the State,
and because they act in the interest of the public as
required by law. However, the presumption may be
disputed.
At any rate, the Court has agreed during its

deliberations to extend to the proponents and the
implementers of the DAP the benefit of the doctrine of
operative fact. This is because they had nothing to do at

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all with the adoption of the invalid acts and practices.
(Maria Carolina P. Araullo, et al. v. Benigno Simeon C.
Aquino III, et al., G.R. No. 209287, February 3, 2015, En
Banc [Bersamin], Resolution of the Motion for
Reconsideration)
THE NATIONAL TERRITORY
The national territory comprises the Philippine

archipelago, with all the islands and waters embraced
therein, and all other territories over which the
Philippines has sovereignty or jurisdiction, consisting
of its terrestrial, fluvial, and aerial domains, including
its territorial sea, the seabed, the subsoil, the insular
shelves, and other submarine areas. The waters
around, between, and connecting the islands of the
archipelago, regardless of their breadth and
dimensions, form part of the internal waters of the
Philippines. (Article I, 1987 Constitution)
The Maritime Baselines Law (R.A. No. 9522)
In 1961, Congress passed Republic Act No. 3046 (RA

3046) demarcating the maritime baselines of the
Philippines as an archipelagic State. This law followed the
framing of the Convention on the Territorial Sea and the
Contiguous Zone in 1958 (UNCLOS I), codifying, among
others, the sovereign right of States parties over their
“territorial sea,” the breadth of which, however, was left
undetermined. Attempts to fill this void during the second
round of negotiations in Geneva in 1960 (UNCLOS II)
proved futile. Thus, domestically, RA 3046 remained
unchanged for nearly five decades, save for legislation
passed in 1968 (Republic Act No. 5446 [RA 5446])
correcting typographical errors and reserving the drawing
of baselines around Sabah in North Borneo.
In March 2009, Congress amended RA 3046 by

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enacting RA 9522. The change was prompted by the
need to make RA 3046 compliant with the terms of the
United Nations Convention on the Law of the Sea
(UNCLOS III), which the Philippines ratified on 27
February 1984. Among others, UNCLOS III prescribes the
water-land ratio, length, and contour of baselines of
archipelagic states like the Philippines and sets the
deadline for the filing of application for the extended
continental shelf. Complying with these requirements, RA
9522 shortened one baseline, optimized the location of
some basepoints around the Philippine archipelago and
classified adjacent territories, namely, the Kalayaan Island
Group (KIG) and the Scarborough Shoal, as “regimes of
islands” whose islands generate their own applicable
maritime zones. (Professor Merlin M. Magallona, et al.
v. Hon. Eduardo Ermita, et al., G.R. No. 187167, 655
SCRA 476, August 16, 2011, En Banc [Carpio])
RA 9522 is not unconstitutional. It is a statutory tool

to demarcate the country’s maritime zones and
continental shelf under UNCLOS III, not to delineate
Philippine territory.
NCLOS III has nothing to do with the acquisition (or

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loss) of territory. It is a multilateral treaty regulating,
among others, sea-use rights over maritime zones (i,e.,
the territorial waters [12 nautical miles from the baselines],
contiguous zone [24 nautical miles from the baselines],
exclusive economic zone [200 nautical miles from the
baselines]), and continental shelves that UNCLOS III
delimits. UNCLOS III was the culmination of decades-long
negotiations among United Nations members to codify
norms regulating the conduct of States in the world’s
oceans and submarine areas, recognizing coastal and
archipelagic States’ graduated authority over a limited
span of waters and submarine lands along their coasts.
n the other hand, baselines laws such as RA 9522

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are enacted by UNCLOS III States parties to work-out

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specific basepoints along their coasts from which
baselines are drawn, either straight or contoured, to serve
as geographic starting points to measure the breadth of
the maritime zones and continental shelf.
Thus, baselines laws are nothing but statutory

mechanisms for UNCLOS III States parties to delimit with
precision the extent of their maritime zones and
continental shelves. In turn, this gives notice to the rest of
the international community of the scope of the maritime
space and submarine areas within which States parties
exercise treaty-based rights, namely: the exercise of
sovereignty over territorial waters (Article 2), the
jurisdiction to enforce customs, fiscal, immigration and
sanitation laws in the contiguous zone (Article 33), and the
right to exploit the living and non-living resources in the
exclusive economic zone (Article 56) and continental shelf
(Article 77). (Professor Merlin M. Magallona, et al. v.
Hon. Eduardo Ermita, et al., G.R. No. 187167, 655
UNCLOS III and its ancillary baselines laws play no

role in the acquisition, enlargement or diminution of
territory. Under traditional international law typology,
states acquire (or conversely, lose) territory through
occupation, accretion, cession and prescription, not by
executing multilateral treaties on the regulation of sea-use
rights or enacting statutes to comply with the treaty’s terms
to delimit maritime zones and continental shelves.
Territorial claims to land features are outside UNCLOS
IIII, and are instead governed by the rules on general
international law. (Professor Merlin M. Magallona, et al.
v. Hon. Eduardo Ermita, et al., G.R. No. 187167, 655
RA 9522’s use of the framework of Regime of Islands

to determine the maritime zones of the Kalayaan
Island Group (KIG) and the Scarborough Shoal is not
inconsistent with the Philippines’ claim of sovereignty

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over these areas.
he configuration of the baselines drawn under RA

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3046 and RA 9522 shows that RA 9522 merely followed
the basepoints mapped by RA 3046, save for at least nine
basepoints that RA 9522 skipped to optimize the location
of basepoints and adjust the length of one baseline (and
thus comply with UNCLOS III’s limitation on the maximum
length of baselines). Under RA 3046, as under RA 9522,
the KIG and the Scarborough Shoal lie outside of the
baselines drawn around the Philippine archipelago. This
undeniable cartographic fact takes the wind out of
petitioners’ argument branding RA 9522 as a statutory
renunciation of the Philippines’ claim over the KIG,
assuming that baselines are relevant for this purpose.
etitioners’ assertion of loss of “about 15,000 square

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nautical miles of territorial waters” under RA 9522 is
similarly unfounded both in fact and law. On the contrary,
RA 9522, by optimizing the location of basepoints,
increased the Philippines’ total maritime space (covering
its internal waters, territorial sea and exclusive economic
zone) by 154,216 square nautical miles x x x.
urther, petitioners’ argument that the KIG now lies

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outside Philippine territory because the baselines that RA
9522 draws do not enclose the KIG is negated by RA 9522
itself. Section 2 of the law commits to text the Philippines’
continued claim of sovereignty and jurisdiction over the
KIG and the Scarborough Shoal x x x
Had Congress in RA 9522 enclosed the KIG and the

Scarborough Shoal as part of the Philippine archipelago,
adverse legal effects would have ensued. The Philippines
would have committed a breach of two provisions of
UNCLOS III. X x x
Although the Philippines has consistently claimed

sovereignty over the KIG and the Scarborough Shoal for

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several decades, these outlying areas are located at an
appreciable distance from the nearest shoreline of the
Philippine archipelago, such that any straight baseline
loped around them from the nearest basepoint will
inevitably “depart to an appreciable extent from the
general configuration of our archipelago.”
Xxx
[T]he amendment of the baselines law was necessary

to enable the Philippines to draw the outer limits of its
maritime zones including the extended continental shelf
provided by Article 47 of [UNCLOS III].
Hence, far from surrendering the Philippines’ claim

over the KIG and the Scarborough Shoal, Congress’
decision to classify the KIG and the Scarborough Shoal as
“’Regime[s] of Islands’ under the Republic of the
Philippines consistent with Article 121” of UNCLOS III
manifests the Philippine State’s responsible observance of
its pacta sunt servanda obligation under UNCLOS III.
Under Article 121 of UNCLOS III, any “naturally formed
area of land, surrounded by water, which is above water at
high tide,” such as portions of the KIG, qualifies under the
category of “regime of islands,” whose islands generate
their own applicable maritime zones. (Professor Merlin
M. Magallona, et al. v. Hon. Eduardo Ermita, et al., G.R.
No. 187167, 655 SCRA 476, August 16, 2011, En Banc
[Carpio])
THE DOCTRINE OF STATE IMMUNITY FROM SUIT
The State may not be sued without its consent.

(Section 3, Article XVI, 1987 Constitution)
Discuss the basis of the Doctrine of State Immunity

from Suit

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

sued at all? How may consent of the State to be sued
given?
The rule, in any case, is not really absolute for it does

not say that the state may not be sued under any
circumstances. On the contrary x x x the doctrine only
conveys, “the state may not be sued without its consent;”
its clear import then is that the State may at times be
sued. The State's consent may be given either expressly
or impliedly. Express consent may be made through a
general law (i.e., Commonwealth Act No. 327, as
amended by Presidential Decree No. 1445 [Sections 49-

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50], which requires that all money claims against the
government must first be filed with the Commission on
Audit which must act upon it within sixty days. Rejection
of the claim will authorize the claimant to elevate the
matter to the Supreme Court on certiorari and, in effect,
sue the State thereby) or a special law. In this jurisdiction,
the general law waiving the immunity of the state from suit
is found in Act No. 3083, where the Philippine government
“consents and submits to be sued upon any money claim
involving liability arising from contract, express or implied,
which could serve as a basis of civil action between the
private parties.” Implied consent, on the other hand, is
conceded when the State itself commences litigation, thus
opening itself to a counterclaim or when it enters into a
contract. In this situation, the government is deemed to
have descended to the level of the other contracting party
and to have divested itself of its sovereign immunity.
(Department of Agriculture v. NLRC, 227 SCRA 693,
Nov. 11, 1993 [Vitug])
The rule that when the State enters into a contract

with a private individual or entity, it is deemed to have
descended to the level of that private individual or
entity and, therefore, is deemed to have tacitly given
its consent to be sued, is that without any
qualification? What is the Restrictive Doctrine of
State Immunity from Suit?
This rule is not without qualification. Not all contracts

entered into by the government operate as a waiver of its
non-suability; distinction must still be made between one
which is executed in the exercise of its sovereign function
and another which is done in its proprietary capacity.
In United States of America v. Ruiz (136 SCRA 487),

where the questioned transaction dealt with the
improvements on the wharves in the naval installation at
Subic Bay, we held:

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

Xxx
The restrictive application of State immunity is

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

suit against the State? Discuss.

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The doctrine of state immunity from suit applies to
complaints filed against public officials for acts done in the
performance of their duties. The rule is that the suit must
be regarded as one against the State where the
satisfaction of the judgment against the public official
concerned will require the State itself to perform a positive
act, such as appropriation of the amount necessary to pay
the damages awarded to the plaintiff.
The rule does not apply where the public official is

charged in his official capacity for acts that are unlawful
and injurious to the rights of others. Public officials are not
exempt, in their personal capacity, from liability arising
from acts committed in bad faith.
Neither does it apply where the public official is clearly

being sued not in his official capacity but in his personal
capacity, although the acts complained of may have been
committed while he occupied a public position. (Amado J.
Lansang v. CA, G.R. No. 102667, Feb. 23, 2000, 2 Div. nd
[Quisumbing])
As early as 1954, this Court has pronounced that an

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

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directed against the Commander of the US Pacific Fleet
for the destruction of our corrals in Tubbataha reef (a
protected area system under the NIPAS [National

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Integrated Protected Areas System] and a UN declared
World Heritage Site because of its rich marine bio-
diversity) in the Sulu Sea caused by the USS Guardian, an
American naval vessel when it ran aground there in the
course of its voyage to Indonesia from its base in
Okinawa, Japan, will not prosper for lack of jurisdiction
following the doctrine of sovereign equality of all States.
In effect, the suit is a suit against the US government and,
therefore, should be dismissed.
The waiver of immunity from suit of the US under the

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

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

Garnishment
he funds of the UP are government funds that are

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public in character. They include the income accruing
from the use of real property ceded to the UP that may be
spent only for the attainment of its institutional objectives.
Hence, the funds subject of this action could not be validly
made the subject of writ of execution or garnishment. The
adverse judgment rendered against the UP in a suit to
which it had impliedly consented was not immediately
enforceable by execution against the UP, because

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suability of the State did not necessarily mean its liability.
(UP v. Dizon, G.R. No. 171182, 679 SCRA 54, 23 August
2012, 1 Div. [Bersamin])
st
The Doctrine should not be used to perpetrate an

Injustice on a Citizen
To our mind, it would be the apex of injustice and highly inequitable for us to defeat
petitioners-contractors’ right to be duly compensated for actual work performed and services
rendered, where both the government and the public have, for years, received and accepted
benefits from said housing project and reaped the fruits of petitioners-contractors’ honest toil
and labor.
Incidentally, respondent likewise argues that the State may not be sued in the instant
case, invoking the constitutional doctrine of Non-suability of the State, otherwise known as the
Royal Prerogative of Dishonesty.

Respondent’s argument is misplaced inasmuch as the principle of State immunity finds
no application in the case before us.
Under these circumstances, respondent may not validly invoke the Royal Prerogative of
Dishonesty and conveniently hide under the State’s cloak of invincibility against suit, considering
that this principle yields to certain settled exceptions. True enough, the rule, in any case, is not
absolute for it does not say that the state may not be sued under any circumstances.
Thus, in Amigable v. Cuenca, this Court, in effect, shred the protective shroud which
shields the state from suit, reiterating our decree in the landmark case of Ministerio v. CFI of
Cebu that “the doctrine of governmental immunity from suit cannot serve as an instrument for
perpetrating an injustice on a citizen.” It is just as important, if not more so, that there be fidelity
to legal norms on the part of officialdom if the rule of law were to be maintained.
Although the Amigable and Ministerio cases generously tackled the issue of the State’s
immunity from suit vis a vis the payment of just compensation for expropriated property, this
Court nonetheless finds the doctrine enunciated in the aforementioned cases applicable to the
instant controversy, considering that the ends of justice would be subverted if we were to
uphold, in this particular instance, the State’s immunity from suit.

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

(Article II, 1987 Constitution)

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The Philippines Adherence to the Doctrine of
Incorporation
Section 2, Article II of the 1987 Constitution

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

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become part of the sphere of domestic law either by
transformation or incorporation. The transformation
method requires that an international law be transformed
into a domestic law through a constitutional mechanism
such as local legislation. On the other hand, generally
accepted principles of international law, by virtue of the
incorporation clause of the Constitution, form part of the
laws of the land even if they do not derive from treaty
stipulations. Generally accepted principles of international
law include international customs as evidence of a general
practice accepted as law, and general principles of law
recognized by civilized nations. International customary
rules are accepted as binding as a result from the
combination of two elements: the established, widespread,
and consistent practice on the part of States; and a
psychological element known as the opinion juris sive
necessitates (opinion as to law or necessity). Implicit in the
latter element is a belief that the practice in question is
rendered obligatory by the existence of a rule of law
requiring it. “General principles of law recognized by
civilized nations” are principles “established by a process
of reasoning” or judicial logic, based on principles which
are “basic to legal systems generally,” such as “general
principles of equity, i.e., the general principles of fairness
and justice,” and the “general principles against
discrimination” which is embodied in the “Universal
Declaration of Human Rights, the International Covenant

Page 17 of 196
on Economic, Social and Cultural Rights, the International
Convention on the Elimination of All Forms of Racial
Discrimination, the Convention Against Discrimination in
Education, the Convention (No. 111) Concerning
Discrimination in Respect of Employment and
Occupation.” These are the same core principles which
underlie the Philippine Constitution itself, and embodied in
the due process and equal protection clauses of the Bill of
Rights. (Mary Grace Natividad S. Poe-Llamanzares v.
COMELEC, G R. No. 221697, March 8, 2016, En Banc
[Perez])
The Right to Self-Determination of Peoples
This right to self-determination of peoples has gone

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

generally accepted principle of international law and,
therefore, binding upon the Philippines?
We refer now to the petitioner’s invocation of the

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

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

Page 18 of 196
Justice. X x x

Xxx

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

covering the national economy and patrimony, the
State shall give preference to qualified Filipinos (Sec.
10, 2 par., Art. XII of the Constitution)
nd
Manila Prince Hotel v. GSIS, 267 SCRA 408 (1997)

(Bellosillo)
I n this case, the SC ruled that this provision is self-

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

A
means “heritage.” Thus, when we speak of “national
patrimony,” we refer not only to the natural resources of
the Philippines but as well as the cultural heritage of the
Filipino people.
The Right to Life of the Unborn from Conception

Page 19 of 196
The Philippine national population program has
always been grounded on two cornerstone principles:
“principle of no-abortion” and the “principle of non-
coercion.” These principles are not merely grounded on
administrative policy, but rather, originates from the
constitutional protection which expressly provided to afford
protection to life and guarantee religious freedom.
When Does Life Begin?
Majority of Members of the Court are of the position

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

life begins at fertilization.
Xxx
Textually, the Constitution affords protection to the

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

meaning of the word “conception” which, as described and
defined by all reliable and reputable sources, means that

Page 20 of 196
life begins at fertilization.
Xxx
From the deliberations above-quoted, it is apparent

that the framers of the Constitution emphasized that the
State shall provide equal protection to both the mother and
the unborn child from the earliest opportunity of life,
that is, upon fertilization or upon the union of the male
sperm and the female ovum. X x x
Equally apparent, however, is that the Framers of the

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

Ecology in Accord with the Rhythm and Harmony of
Nature
International Service for the Acquisition of Agri-

Biotech Applications, Inc. v. Greenpeace Southeast
Asia (Philippines), et al., G.R. No. 209271, December 8,
2015, En Banc (Villarama, Jr.)
The Precautionary Principle
The precautionary principle originated in Germany in

the 1960s, expressing the normative idea that
governments are obligated to “foresee and forestall” harm
to the environment. In the following decades, the

Page 21 of 196
precautionary principle has served as the normative
guideline for policymaking by many national governments.
The Rio Declaration on Environment and Development,
the outcome of the 1992 United Nations Conference on
Environment and Development held in Rio de Janeiro,
defines the rights of the people to be involved in the
development of their economies, and the responsibilities
of human beings to safeguard the common environment.
It states that the long term economic progress is only
ensured if it s linked with the protection of the
environment. For the first time, the precautionary
approach was codified under Principle 15, which reads:
In order to protect the environment, the precautionary

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

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

The precautionary principle applies when the
following conditions are met:
1. There exist considerable scientific uncertainties;

2. There exist scenarios (or models) of possible

Page 22 of 196
harm that are scientifically reasonable (that is
based on some scientifically plausible reasoning);
3. Uncertainties cannot be reduced in the short term
without at the same time increasing ignorance of
other relevant factors by higher levels of
abstraction and idealization;
4. The potential harm is sufficiently serious or even
irreversible for present or future generations or
otherwise morally unacceptable;
5. There is a need to act now, since effective
counteraction later will be made significantly
more difficult or costly at any later time.
The Rules (of Procedure for Environmental Cases)

likewise incorporated the principle in Part V, Rule 20,
which states:
PRECAUTIONARY PRINCIPLE
Sec. 1. Applicability. – When there is a lack of full

scientific certainty in establishing a causal link
between human activity and environmental effect, the
court shall apply the precautionary principle in
resolving the case before it.
The constitutional right of the people to a

balanced and healthful ecology shall be given the
benefit of the doubt.
SEC. 2. Standards for application. – In applying

the precautionary principle, the following factors,
among others, may be considered: (1) threats to
human life or health; (2) inequity to preset or future
generations; or (3) prejudice to the environment
without legal consideration of the environmental rights
of those affected.
Under this Rule, the precautionary principle finds

direct application in the evaluation of evidence in cases

Page 23 of 196
before the courts. The precautionary principle bridges the
gap in cases where scientific certainty in factual findings
cannot be achieved. By applying the precautionary
principle, the court may construe a set of facts as
warranting either judicial action or inaction, with the goal of
preserving and protecting the environment. This may be
further evinced from the second paragraph where bias is
created in favor of the constitutional right of the people to
a balanced and healthful ecology. In effect, the
precautionary principle shifts the burden of evidence of
harm away from those likely to suffer harm and onto those
desiring to change the status quo. An application of the
precautionary principle to the rules on evidence will enable
courts to tackle future environmental problems before
ironclad scientific consensus emerges. (Annotation to the
Rules of Procedure for Environmental Cases)

For purposes of evidence, the precautionary principle
should be treated as a principle of last resort, where
application of the regular Rules of Evidence would cause
in an inequitable result for the environmental plaintiff – (a)
settings in which the risks of harm are uncertain; (b)
settings in which harm might be irreversible and what is
lost is irreplaceable; and (c) settings in which the harm
that might result would be serious. When these features –
uncertainty, the possibility of irreversible harm, and
the possibility of serious harm – coincide, the case for
the precautionary principle is strongest. When in doubt,
cases must be resolved in favor of the constitutional right
to a balanced and healthful ecology. Parenthetically,
judicial adjudication is one of the strongest fora in which
the precautionary principle may find applicability.
(International Service for the Acquisition of Agri-
biotech Applications, Inc. v. Greenpeace Southeast
Asia [Philippines], et al., GR No. 209271, December 8,
2015, En Banc [Villarama])
Application of the Precautionary Principle to the Bt

talong Field Trials in the Philippines

Page 24 of 196
ssessing the evidence on record, as well as the
A
current state of GMO research worldwide, the Court finds
all the three conditions present in this case – uncertainty,
the possibility of irreversible harm and the possibility of
serious harm.
X x x
longside the aforesaid uncertainties, the non-

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

field trials – for which an indefinite moratorium was
recommended by a Supreme Court-appointed committee
till the government fixes regulatory and safety aspects –
as relevant because majority of Filipino farmers are also
small-scale farmers. Further, the precautionary approach
entailed inputs from all stakeholders, including the
marginalized farmers, not just the scientific community.

Page 25 of 196
This proceeds from the realization that acceptance of
uncertainty is not only a scientific issue, but is related to
public policy and involves an ethical dimension. For
scientific research alone will not resolve all the problems,
but participation of different stakeholders from scientists to
industry, NGOs, farmers and the public will provide a
needed variety of perspective foci, and knowledge.
Asia (Philippines), et al., GR No. 209271, December 8,
Field Trial Proposal of Bt (Bacillus thuringiensis)

Talong
he crystal toxin genes from the soil bacterium

T
Bacillus thuringiensis (Bt) were incorporated into the
eggplant (talong) genome to produce the protein CrylAc
which is toxic to the target insect pests. CrylAc protein is
said to be highly specific to lepidopteran larvae such as
the fruit and shoot borer (FSB), the most destructive insect
pest of eggplant. (International Service for the
Acquisition of Agri-biotech Applications, Inc. v.
Greenpeace Southeast Asia (Philippines), et al., GR
No. 209271, December 8, 2015, En Banc [Villarama])
Mosqueda, et al. v. Pilipino Banana Growers &
Exporters Association, Inc., et al., G.R. No. 189185,
August 16, 2016, En Banc (Bersamin)
he principle of precaution originated as a social

T
planning principle in Germany. In the 1980’s, the Federal
Republic of Germany used the Vorsogeprinzip (“foresight
principle”) to justify the implementation of vigorous policies
to tackle acid rain, global warming and pollution of the
North Sea. It has since emerged from a need to protect
humans and the environment from increasingly
unpredictable, uncertain, and unquantifiable but possibly

Page 26 of 196
catastrophic risks such as those associated with
Genetically Modified Organisms and climate change. The
oft-cited Principle 15 of the 1992 Rio Declaration on
Environment and Development (1992 Rio Agenda) first
embodied this principle x x x.
I n this jurisdiction, the principle of precaution

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

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

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

Page 27 of 196
apply, thus, it held:
We cannot see the presence of all the elements.

To begin with, there has been no scientific study.
Although the precautionary principle allows lack of
full scientific certainty in establishing a connection
between the serious or irreversible harm and the
human activity, its application is still premised on
empirical studies. Scientific analysis is still a
necessary basis for effective policy choices under the
precautionary principle.
Precaution is a risk management principle

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

of aerial spraying appears to be the Summary Report
on the Assessment and Fact-Finding Activities on the
Issue of Aerial Spraying in Banana Plantations. Yet,
the fact-finding team that generated the report was
not a scientific study that could justify the resort to the
precautionary principle. In fact, the Sangguniang
Bayan ignored the findings and conclusions of the
fact-finding team x x x.

Page 28 of 196
We should not apply the precautionary approach
in sustaining the ban against aerial spraying if little or
nothing is known of the exact or potential dangers that
aerial spraying may bring to the health of the
residents within and near the plantations and to the
integrity and balance of the environment. It is
dangerous to quickly presume that the effects of aerial
spraying would be adverse even in the absence of
evidence. Accordingly, for lack of scientific data
supporting a ban on aerial spraying, Ordinance No.
0309-07 should be struck down for being
unreasonable.
Resident Marine Mammals of the Protected Seascape

Tanon Strait, et al. v. Secretary Angelo Reyes, et al.,
G.R. No. 180771, April 21, 2015, En Banc (Leonardo-De
Castro)
etitioners in this case were marine mammals

P
(toothed whales, dolphins, and other cetacean species)
but were joined by human beings as “stewards of nature.
re these marine mammals the proper parties to file

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

Exploration of Oil and Petroleum Products (Paragraph
4, Section 2, Article XII, 1987 Constitution)

Page 29 of 196
GR Nos. 180771 and 181527, April 21, 2015, En Banc
(Leonardo-De Castro)
I n these consolidated petitions, this Court has

determined that the various issues raised by the
petitioners may be condensed into two primary issues:
rocedural Issue: Locus standi of the Resident

P
Marine Mammals and Stewards x x x; and
Main Issue: Legality of Service Contract No. 46.
Procedural Issue
he Resident Marine Mammals, through the

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

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

Page 30 of 196
Marine Mammals, are therefore declared to possess the
legal standing to file this petition.
On the Legality of Service Contract No. 46 vis-à-vis

Section 2, Article XII of the 1987 Constitution
his Court has previously settled the issue of whether

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

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

ConCom, we established that paragraph 4, with the
safeguards in place, is the exception to paragraph 1,

Page 31 of 196
Section 2 of Article XII. The following are the safeguards
this Court enumerated in La Bugal:
Such service contracts may be entered into only with

respect to minerals, petroleum and other mineral oils. The
grant thereof is subject to several safeguards, among
which are these requirements:
(1) The service contract shall be crafted in accordance

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

government because, supposedly before an
agreement is presented to the President for
signature, it will have been vetted several times
over at different levels to ensure that it conforms to
law and can withstand public scrutiny.
(3) Within thirty days of the executed agreement, the

President shall report it to Congress to give that
branch of government an opportunity to look over
the agreement and interpose timely objections, if
any.
` Adhering to the aforementioned guidelines, this Court

finds that SC-46 is indeed null and void for noncompliance
with the requirements of the 1987 Constitution.
1. The General Law on Oil Exploration
The disposition, exploration, development,

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

Page 32 of 196
Contrary to the petitioners’ argument, Presidential
Decree No. 87, although enacted in 1972, before the
adoption of the 1987 Constitution, remains to be a valid
law unless otherwise repealed x x x.
This Court could not simply assume that while

Presidential Decree No. 87 had not yet been expressly
repealed, it had been impliedly repealed. X x x
Consequently, we find no merit in petitioners’

contention that SC-46 is prohibited on the ground that
there is no general law prescribing the standard or uniform
terms, conditions, and requirements for service contracts
involving oil exploration and extraction.
But note must be made at this point that while

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

same was not submitted to Congress
While the Court finds that Presidential Decree No. 87

is sufficient to satisfy the requirement of a general law, the
absence of the two other conditions, that the President be
a signatory to SC-46, and that Congress be notified of
such contract, renders it null and void.
As SC-46 was executed in 2004, its terms should
have conformed not only to the provisions of Presidential
Decree No. 87, but also those of the 1987 Constitution. X
xx
Paragraph 4, Section 2, Article XII of the 1987

Constitution requires that the President himself enter into

Page 33 of 196
any service contract for the exploration of petroleum. SC-
46 appeared to have been entered into and signed only by
the DOE (Department of Energy) through its then
Secretary, Vicente S. Perez, Jr., contrary to the said
constitutional requirement. Moreover, public respondents
have neither shown nor alleged that Congress was
subsequently notified of the execution of such contract.
ublic respondents’ implied argument that based on

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

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

While the requirements in executing service contracts
in paragraph 4, Section 2 of Article XII of the 1987
Constitution seem like mere formalities, they, in reality,
take on a much bigger role. As we have explained in La
Bugal, they are the safeguards put in place by the framers
of the Constitution to “eliminate or minimize the abuses
prevalent during the martial law regime.” Thus, they are
not just mere formalities, which will render a contract

Page 34 of 196
unenforceable but not void, if not complied with. They are
requirements placed, not just in an ordinary statute, but in
the fundamental law, the non-observance of which will
nullify the contract. X x x

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

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

Even under the provisions of Presidential Decree No.
87, it is required that the Petroleum Board, now the DOE
(Department of Energy), obtain the President’s approval
for the execution of any contract under said statute x x x.

Even if we were inclined to relax the requirement in
La Bugal to harmonize the 1987 Constitution with the
aforementioned provision of Presidential Decree No. 87, it
must be shown that the government agency or
subordinate official has been authorized by the President

Page 35 of 196
to enter into such service contract for the government.
Otherwise, it should be at least shown that the President
subsequently approved of such contract explicitly. None of
these circumstances is evident in the case at bar.
On the legality of Service Contract No. 46 vis-à-vis

Other Laws

Xxx

Moreover, SC-46 was not executed for the mere
purpose of gathering information on the possible energy
resources in the Tanon Strait as it also provides for the
parties’ rights and obligations relating to extraction and
petroleum production should oil in commercial quantities
be found to exist in the area. While Presidential Decree
No. 87 may serve as the general law upon which a service
contract for petroleum exploration and extraction may be
authorized, the exploitation and utilization of this energy
resource in the present case may be allowed only through
a law passed by Congress, since the Tanon Strait is a
NIPAS (National Integrated Protected Areas System) area.
Since there is no such law specifically allowing oil
exploration and/or extraction in the Tanon Strait, no energy
resource exploitation and utilization may be done in said
protected seascape.
Academic Freedom
Academic freedom shall be enjoyed in all institutions of higher learning. (Sec. 5[2], Art.
XIV, 1987 Constitution)
cademic freedom of educational institutions has

A
been defined as the right of the school or college to decide
for itself, its aims and objectives, and how best to attain
them - free from outside coercion or interference save
possibly when the overriding public welfare calls for some
restraint. It has a wide sphere of autonomy certainly
extending to the choice of students. Said constitutional
provision is not to be construed in a niggardly manner or in
a grudging fashion. That would be to frustrate its purpose

Page 36 of 196
and nullify its intent. (University of San Agustin, Inc. v.
Court of Appeals, 230 SCRA 761, 774-775, March 7,
1994 [Nocon])
What are the essential freedoms subsumed in the term “academic freedom”?
In Ateneo de Manila University v. Capulong (G.R. No.

99327, 27 May 1993), this Court cited with approval the
formulation made by Justice Felix Frankfurter of the
essential freedoms subsumed in the term “academic
freedom” encompassing not only “the freedom to
determine x x x on academic grounds who may teach,
what may be taught (and) how it shall be taught,” but
likewise “who may be admitted to study.” We have thus
sanctioned its invocation by a school in rejecting students
who are academically delinquent, or a laywoman seeking
admission to a seminary, or students violating “School
Rules on Discipline.” (Isabelo, Jr. v. Perpetual Help
College of Rizal, Inc., 227 SCRA 595-597, Nov. 8, 1993,
En Banc [Vitug])
THE STRUCTURE OF GOVERNMENT
The main distinction between a presidential form of

government and a parliamentary form of government
I n a presidential form of government, there is the

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

In order to determine whether there is undue
delegation of legislative power, the Court has adopted two
tests: the completeness test and the sufficient standard
test. Under the first test, the law must be complete in all

Page 37 of 196
its terms and conditions when it leaves the legislature
such that when it reaches the delegate, the only thing he
will have to do is to enforce it. The second test mandates
adequate guidelines or limitations in the law to determine
the boundaries of the delegate’s authority and prevent the
delegation from running riot. (Jose Jesus M. Disini, Jr.,
et al. v. The Secretary of Justice, et al., G.R. No,.
203335, Feb. 11, 2014, En Banc [Abad])
The Legislative Department (Article VI, 1987

Constitution)
The legislative power shall be vested in the

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

Congress?
R.A. No. 6735 (The Initiative and Referendum Law)
The Principle of Bicameralism
The Bicameral Conference Committee
I t is a mechanism for compromising differences

between the Senate and the House of Representatives.
By the nature of its function, a Bicameral Conference
Committee is capable of producing unexpected results –
results which sometimes may even go beyond its own
mandate. (Tolentino v. Secretary of Finance)
The Bills That Are Required to Originate Exclusively in

the House of Representatives (Section 24, Article VI of
the 1987 Constitution)

Page 38 of 196
The Party-List System
The 1987 Constitution provides the basis for the

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

Party-List Elections
In determining who may participate in the coming

13 May 2013 and subsequent party-list elections, the
COMELEC shall adhere to the following parameters:
1. Three different groups may participate in the party-

list system: (1) national parties or organizations, (2)
regional parties or organizations, and (3) sectoral
parties or organizations.
2. National parties or organizations and regional

parties or organizations do not need to organize
along sectoral lines and do not need to represent
any “marginalized and underrepresented” sector.
3. Political parties can participate in party-list elections

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

Page 39 of 196
independent sectoral party, and is linked to a
political party through a coalition.
4. Sectoral parties or organizations may either be

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

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

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

Page 40 of 196
[Carpio])
Based on the foregoing, it can be inferred that

although the party-list system is a social justice tool
designed to have the marginalized and underrepresented
sectors of society represented in the House of
Representatives, nonetheless, the dominant political
parties are not totally prohibited from participating in party-
list elections.
Although, as a rule, they may not participate in party-

list elections if they field candidates in district elections,
however, by way of an exception, they may still participate
through their sectoral wing, provided that the sectoral wing
is registered separately as a political party in the
COMELEC and is linked to the dominant political party
through a coalition. (Atong Paglaum, Inc., et al. v.
COMELEC, G.R. No. 203766, 694 SCRA 477, April 2,
2013, En Banc [Carpio])
Ang Bagong Bayani – OFW Labor Party v. COMELEC
he religious sector is expressly prohibited from

T
participating in party-list elections (Sec. 5, 2 par., Art. VI, nd
1987 Constitution). Religious denominations and sects

are even prohibited from being registered as political
parties in the COMELEC (Sec. 2, par. 5, Art. IX-C, 1987
Constitution).
owever, the Supreme Court clarified, based on the

H
intent of the framers of the 1987 Constitution, that what is
prohibited is the registration of a religious sect as a
political party; there is no prohibition against a priest
running as a candidate.
Ang Ladlad-LGBT Party v. Commission on Elections,

G.R. No. 190582, 618 SCRA 32, April 8, 2010, En Banc
(Del Castillo)

Page 41 of 196
he act of the COMELEC of not allowing the
T
registration of Ang Ladlad-LGBT Party as a political party
to participate in party-list elections on the ground that its
members are “immoral,” citing verses from the Bible and
the Koran, is tainted with grave abuse of discretion as it
violated the non-establishment clause of freedom of
religion and, therefore, should be nullified.
nder this non-establishment clause of freedom of

U
religion, the COMELEC, as an agency of the government,
is not supposed to use religious standards in its decisions
and actions.
Veterans Federation Party v. COMELEC
nder Sec. 5, 2 par., Art. VI of the Constitution, the

U nd
party-list representatives shall constitute twenty (20)

percent of the total number of representatives, including
those under the party-list. Based on this, the ratio is 4:1,
i.e., for every four (4) district representatives, there should
be one (1) party-list representative.
I n the computation of the number of seats allocated to

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

Party-list Elections are:
1. the twenty (20) percent allocation;

2. the two (2) percent threshold;
3. the three (3) - seat limit; and
4. proportional representation
Barangay Association for National Advancement and

Transparency (BANAT) v. COMELEC, G.R. No. 179271,

Page 42 of 196
586 SCRA 210, July 2, 2009, En Banc (Carpio)
What was declared unconstitutional in this case was
not the two (2) percent threshold itself; but rather, the
continued application of the two (2) percent threshold in
determining the additional seats that will be allocated to
winners in party-list elections. Thus, the SC clarified:
“We rule that, in computing the allocation of
additional seats, the continued operation of the two
percent threshold for the distribution of the additional
seats as found in the second clause of Section 11(b)
of R.A. No. 7941 is unconstitutional. This Court finds
that the two percent threshold makes it
mathematically impossible to achieve the maximum
number of available party list seats when the number
of available party list seats exceeds 50. The
continued operation of the two percent threshold in
the distribution of the additional seats frustrates the
attainment of the permissive ceiling that 20% of the
members of the House of Representatives shall
consist of party-list representatives.
“X x x
“We therefore strike down the two percent
threshold only in relation to the distribution of the
additional seats as found in the second clause of
Section 11(b) of R.A. No. 7941. The two percent
threshold presents an unwarranted obstacle to the full
implementation of Section 5(2), Article VI of the
Constitution and prevents the attainment of “the
broadest possible representation of party, sectoral or
group interests in the House of Representatives.”
Party-list Representatives and District
Representatives have the same Rights, Salaries, and
Emoluments
nce elected, both the district representatives and the

O
party-list representatives are treated in like manner. They
have the same deliberative rights, salaries, and
emoluments. They can participate in the making of laws
that will directly benefit their legislative districts or sectors.

Page 43 of 196
They are also subject to the same term limitation of three
years for a maximum of three consecutive terms. (Daryl
Grace J. Abayon v. The Honorable House of
Representatives Electoral Tribunal, et al., G.R. Nos.
189466 and 189506, 612 SCRA 375, 11 February 2010,
En Banc [Abad])
Oversight Powers and Functions of Congress
MakalIntal v. COMELEC (Justice Reynato S. Puno’s

Separate Concurring Opinion; ABAKADA Guro Party
List v. Secretary Purisima)
ost-enactment measures undertaken by Congress to

P
enhance its understanding of, and influence over, the
legislation it has enacted.
his is intrinsic in the grant of legislative power itself

T
to Congress, and integral to the system of checks and
balances inherent in a democratic system of government.
Categories of Oversight Powers and Functions
1. Legislative Scrutiny
2. Legislative Investigation
3. Legislative Supervision
What is a Legislative Veto?
disapproval by Congress, or by an oversight

A
committee of Congress, of an administrative regulation
promulgated by an administrative body or agency.
The Power of Appropriation
No money shall be paid out of the Treasury

except in pursuance of an appropriations made by
law. (Section 29 [1], Article VI, 1987 Constitution)
Under the Constitution, the power of appropriation is

Page 44 of 196
vested in the Legislature, subject to the requirement that
appropriations bills originate exclusively in the House of
Representatives with the option of the Senate to propose
or concur with amendments. While the budgetary process
commences from the proposal submitted by the President
to Congress, it is the latter which concludes the exercise
by crafting an appropriation act it may deem beneficial to
the nation, based on its own judgment, wisdom and
purposes. Like any other piece of legislation, the
appropriation act may then be susceptible to objection
from the branch tasked to implement it, by way of a
Presidential veto. Thereafter, budget execution comes
under the domain of the Executive branch which deals
with the operational aspects of the cycle including the
allocation and release of funds earmarked for various
projects. Simply put, from the regulation of fund releases,
the implementation of payment schedules and up to the
actual spending of the funds specified in the law, the
Executive takes the wheel. The DBM (Department of
Budget and Management) lays down the guidelines for the
disbursement of the fund. This demonstrates the power
given to the President to execute appropriation laws and
therefore, to exercise the spending per se of the budget.
(Lawyers against Monopoly and Poverty [LAMP] v.
The Secretary of Budget and Management, G.R. No.
164987, Apr. 24, 2012, En Banc [Mendoza])
The “Pork Barrel” System
onsidering petitioners’ submission and in reference

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

Page 45 of 196
is herein defined as a kind of lump-sum, discretionary
fund wherein legislators, either individually or
collectively organized into committees, are able to
effectively control certain aspects of the fund’s
utilization through various post-enactment measures
and/or practices; and
Second, there is the Presidential Pork Barrel which
is herein defined as a kind of lump-sum, discretionary
fund which allows the President to determine the
manner of its utilization. X x x the Court shall delimit the
use of such term to refer only to the Malampaya Funds
and the Presidential Social Fund. (Belgica v. Ochoa, G.R.
No. 208566, 710 SCRA 1, 105-106, Nov. 19, 2013, En
Banc [Perlas-Bernabe])
The “Pork Barrel” System Declared Unconstitutional:
Reasons
The Court renders this Decision to rectify an error
which has persisted in the chronicles of our history. In the
final analysis, the Court must strike down the Pork Barrel
System as unconstitutional in view of the inherent
defects in the rules within which it operates. To recount,
insofar as it has allowed legislators to wield, in varying
gradations, non-oversight, post-enactment authority in vital
areas of budget execution, the system has violated the
principle of separation of powers; insofar as it has
conferred unto legislators the power of appropriation by
giving them personal, discretionary funds from which they
are able to fund specific projects which they themselves
determine, it has similarly violated the principle of non-
delegability of legislative power; insofar as it has
created a system of budgeting wherein items are not
textualized into the appropriations bill, it has flouted the
prescribed procedure of presentment and, in the
process, denied the President the power to veto items;
insofar as it has diluted the effectiveness of congressional
oversight by giving legislators a stake in the affairs of
budget execution, an aspect of governance which they
may be called to monitor and scrutinize, the system has
equally impaired public accountability; insofar as it has

Page 46 of 196
authorized legislators, who are national officers, to
intervene in affairs of purely local nature, despite the
existence of capable local institutions, it has likewise
subverted genuine local autonomy; and again, insofar as
it has conferred to the President the power to appropriate
funds intended by law for energy-related purposes only to
other purposes he may deem fit as well as other public
funds under the broad classification of “priority
infrastructure development projects,” it has once more
transgressed the principle of non-delegability. (Belgica,
et al. v. Exec. Sec. Paquito N. Ochoa, et al., G.R. No.
208566, 710 SCRA 1, 160-161, Nov. 19, 2013, En Banc
[Perlas-Bernabe])
The Power of Augmentation
No law shall be passed authorizing any transfer

of appropriations; however, the President, the
President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme
Court, and the heads of Constitutional Commissions
may, by law, be authorized to augment any item in the
general appropriations law for their respective offices
from savings in other items in their respective
appropriations. (Section 25 [5], Article VI, 1987
Constitution)
Requisites for the valid transfer of appropriated funds

under Section 25(5), Article VI of the 1987 Constitution
The transfer of appropriated funds, to be valid under
Section 25(5), Article VI of the Constitution, must be made
upon a concurrence of the following requisites, namely:
(1) There is a law authorizing the President, the
President of the Senate, the Speaker of the House
of Representatives, the Chief Justice of the
Supreme Court, and the heads of the Constitutional
Commissions to transfer funds within their
respective offices;
(2) The funds to be transferred are savings generated
from the appropriations of their respective offices;

Page 47 of 196
and
(3) The purpose of the transfer is to augment an item
in the general appropriations law for their respective
offices. (Maria Carolina P. Araullo, et al. v.
Benigno Simeon C. Aquino III, et al. G.R. No.,
209287, 728 SCRA 1, July 1, 2014, En Banc
[Bersamin])
Congressional Investigations
(PHILCOMSAT Holdings Corporation v. Senate, G.R.

No. 180308, June 19, 2012 En Banc [Perlas-Bernabe])
The Senate Committees’ power of inquiry relative to
PSR No. 455 has been passed upon and upheld in the
consolidated cases of In the Matter of the Petition for
Habeas Corpus of Camilo L. Sabio which cited Article VI,
Section 21 of the Constitution.
The Court explained that such conferral of the
legislative power of inquiry upon any committee of
Congress must carry with it all powers necessary and
proper for its effective discharge. On this score, the
Senate Committee cannot be said to have acted with
grave abuse of discretion amounting to lack or in excess
of jurisdiction when it submitted Committee Resolution No.
312, given its constitutional mandate to conduct legislative
inquiries. Nor can the Senate Committee be faulted for
doing so on the very same day that the assailed resolution
was submitted. The wide latitude given to Congress with
respect to these legislative inquiries has long been settled,
otherwise, Article VI, Section 21 would be rendered
pointless.
Bengzon, Jr. v. Senate Blue Ribbon Committee
Senate v. Ermita
Neri v. Senate Committee on Accountability of Public

Officers and Investigations, 564 SCRA 152, Sept. 4,
2008, En Banc (Leonardo-De Castro)

Page 48 of 196
There is a Recognized Presumptive Presidential
Communications Privilege
The Court, in the earlier case of Almonte v. Vasquez,
affirmed that the presidential communications privilege
is fundamental to the operation of government and
inextricably rooted in the separation of powers under the
Constitution. Even Senate v. Ermita reiterated this
concept. There, the Court enumerated the cases in which
the claims of executive privilege was recognized, among
them Almonte v. Chavez, Chavez v. Presidential
Commission on Good Government (PCGG), and Chavez
v. PEA. The Court articulated in these cases that “there
are certain types of information which the government may
withhold from the public,” that there is a “government
privilege against public disclosure with respect to state
secrets regarding military, diplomatic and other national
security matters”; and that “the right to information does
not extend to matters recognized as ‘privileged
information’ under the separation of powers, by which
the Court meant Presidential conversations,
correspondences, and discussions in closed-door
Cabinet meetings.
X x x
The constitutional infirmity found in the blanket
authorization to invoke executive privilege granted by the
President to executive officials in Sec. 2(b) of E.O. No. 464
does not obtain in this case.
In this case, it was the President herself, through
Executive Secretary Ermita, who invoked executive
privilege on a specific matter involving an executive
agreement between the Philippines and China, which was
the subject of the three (3) questions propounded to
petitioner Neri in the course of the Senate Committees’
investigation. Thus, the factual setting of this case
markedly differs from that passed upon in Senate v.
Ermita.
Moreover x x x the Decision in this present case hews
closely to the ruling in Senate v. Ermita, to wit:
Executive Privilege

Page 49 of 196
The phrase “executive privilege is not new in
this jurisdiction. It has been used even prior to the
promulgation of the 1986 Constitution. Being of
American origin, it is best understood in light of how it
has been defined and used in the legal literature of
the United States.
Schwartz defines executive privilege as “the
power of the Government to withhold information
from the public, the courts, and the Congress.”
Similarly, Rozell defines it as “the right of the
President and high-level executive branch officers to
withhold information from Congress, the courts, and
ultimately the public.” X x x In this jurisdiction, the
doctrine of executive privilege was recognized by this
Court in Almonte v. Vasquez. Almonte used the term
in reference to the same privilege subject of Nixon. It
quoted the following portion of the Nixon decision
which explains the basis for the privilege:
“The expectation of a President to the
confidentiality of his conversations and
correspondences, like the claim of
confidentiality of judicial deliberations, for
example, he has all the values to which we
accord deference for the privacy of all citizens
and, added to those values, is the necessity for
protection of the public interest in candid,
objective, and even blunt or harsh opinions in
Presidential decision-making. A President and
those who assist him must be free to explore
alternatives in the process of shaping policies
and making decisions and to do so in a way
many would be unwilling to express except
privately. These are the considerations
justifying s presumptive privilege for
Presidential communications. The privilege
is fundamental to the operation of
government and inextricably rooted in the
separation of powers under the Constitution x
x x.”

Page 50 of 196
learly, therefore, even Senate v. Ermita adverts to “a
C
presumptive privilege for Presidential communication,”
which was recognized early in Almonte v. Vasquez. To
construe the passage in Senate v. Ermita to x x x referring
to the non-existence of a “presumptive authorization” of an
executive official, to mean that the “presumption” in favor
of executive privilege “inclines heavily against executive
secrecy and in favor of disclosure” is to distort the ruling in
the Senate v. Ermita and make the same engage in self-
contradiction.
Senate v. Ermita expounds on the constitutional
underpinning of the relationship between the Executive
Department and the Legislative Department to explain why
there should be no implied authorization or presumptive
authorization to invoke executive privilege by the
President’s subordinate officials, as follows:
“When Congress exercises its power of
inquiry, the only way for department heads to
exempt themselves therefrom is by a valid claim
of privilege. They are not exempt by the mere fact
that they are department heads. Only one
executive official may be exempted from this power –
the President on whom executive power is vested,
hence, beyond the reach of Congress except through
the power of impeachment. It is based on he being
the highest official of the executive branch, and the
due respect accorded to a co-equal branch of
government which is sanctioned by a long-standing
custom.”
Thus, if what is involved is the presumptive privilege
of presidential communications when invoked by the
President on a matter clearly within the domain of the
Executive, the said presumption dictates that the same be
recognized and be given preference or priority, in the
absence of proof of a compelling or critical need for
disclosure by the one assailing such presumption. Any
construction to the contrary will render meaningless the
presumption accorded by settled jurisprudence in favor of
executive privilege. In fact, Senate v. Ermita reiterates

Page 51 of 196
jurisprudence citing “the considerations justifying a
presumptive privilege for Presidential communications.”
The Electoral Tribunals in Congress
The House of Representatives Electoral Tribunal

(HRET) has Jurisdiction over Election Contests
involving Party-List Representatives
I t is for the HRET to interpret the meaning of this

particular qualification of a nominee – the need for him or
her to be a bona fide member or a representative of his
party-list organization – in the context of the facts that
characterize Abayon and Palparan’s relation to Aangat
Tayo and Bantay, respectively, and the marginalized and
underrepresented interests that they presumably embody.
Section 17, Article VI of the Constitution provides that
the HRET shall be the sole judge of all contests relating to,
among other things, the qualifications of the members of
the House of Representatives. Since party-list nominees
are “elected members” of the House of Representatives,
the HRET has jurisdiction to hear and pass upon their
qualifications. By analogy with the cases of district
representatives, once the party or organization of the
party-list nominee has been proclaimed and the nominee
has taken his oath and assumed office as member of the
House of Representatives, the COMELEC’s jurisdiction
over election contests relating to his qualification ends and
the HRET’s own jurisdiction begins. (Daryl Grace J.
Abayon v. The Honorable House of Representatives
Electoral Tribunal, et al., G.R. Nos. 189466 and 189506,
612 SCRA 375, 11 February 2010, En Banc [Abad])
The Executive Department (Article VII, 1987

Constitution)
The executive power shall be vested in the

President of the Philippines. (Section 1, Article VII,
1987 Constitution)

Page 52 of 196
I t has already been established that there is one
repository of executive powers, and that is the President of
the Republic. This means that when Section 1, Article VII
of the Constitution speaks of executive power, it is granted
to the President and no one else. Corollarily, it is only the
President, as Chief Executive, who is authorized to
exercise emergency powers as provided under Section
23, Article VI, of the Constitution, as well as what became
known as the calling-out powers under Section 18, Article
VII thereof. (Jamar Kulayan v. Gov. Abdusakur Tan,
G.R. No. 187298, July 3, 2012, En Banc [Sereno, CJ]),
The Doctrine of Qualified Political Agency
nder this doctrine, which recognizes the

U
establishment of a single executive, all executive and
administrative organizations are adjuncts of the Executive
Department, the heads of the various executive
departments are assistants and agents of the Chief
Executive, and, except in cases where the Chief Executive
is required by the Constitution or law to act in person or
the exigencies of the situation demand that he act
personally, the multifarious executive and administrative
functions of the Chief Executive are performed by and
through the executive departments, and the acts of the
Secretaries of such departments, performed and
promulgated in the regular course of business, are, unless
disapproved or reprobated by the Chief Executive
presumably the acts of the Chief Executive. (Resident
Marine Mammals of the Protected Seascape Tanon Strait,
et al. v. Secretary Angelo Reyes, et al., GR Nos. 180771
and 181527, April 21, 2015, En Banc [Leonardo-De
Castro])
G.R. No. 180771, April 21, 2015, En Banc (Leonardo-De
Castro)
The constitutionality of the Service Contract

Page 53 of 196
Agreement for the large-scale exploration, development
and utilization of oil and petroleum gasses in Tanon Strait
entered into between a Japanese petroleum corporation
and the Philippine Government was challenged in this
case. The one who signed this Agreement on behalf of
the Philippine government was the Secretary of Energy.
Was the Agreement valid?
he SC said “No.” It violated Section 2, 4 par.,

T th
Article XII of the Constitution (National Economy and

Patrimony) which states that it is the President who should
enter into that kind of contract with foreign corporations.
Public respondents, in trying to justify their action,
however, invoked the doctrine of qualified political agency
since the Secretary of Energy is an alter-ego of the
President. The SC clarified that this doctrine of qualified
political agency may not be validly invoked if it is the
Constitution itself that provides that the act should be
performed by the President no less, especially since what
are involved are natural resources.
The Appointing Power of the President
Not All Officers Appointed by the President under

Section 16, Article VII of the 1987 Constitution Shall
Require Confirmation by the Commission on
Appointments
Conformably, as consistently interpreted and ruled in

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

ambassadors, other public ministers and consuls,
officers of the armed forces from the rank of colonel or

Page 54 of 196
naval captain, and other officers whose appointments
are vested in him in this Constitution;
Second, all other officers of the Government

whose appointments are not otherwise provided for
by law;
Third, those whom the President may be

authorized by law to appoint;
Fourth, officers lower in rank whose

appointments the Congress may by law vest in the
President alone.
It is well-settled that only presidential appointees

belonging to the first group require the confirmation by the
Commission on Appointments. (Manalo v. Sistoza, 312
SCRA 239, Aug. 11, 1999, En Banc [Purisima])
The Nature of an Ad Interim Appointment
An ad interim appointment is a permanent appointment because it takes effect

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

More than half a century ago, this Court had already ruled that an ad interim
appointment is permanent in character. In Summers v. Ozaeta, decided on October 25, 1948,
we held that:
“x x x an ad interim appointment is one made in pursuance of paragraph (4), Section 10,

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

Page 55 of 196

The Constitution imposes no condition on the effectivity of an ad interim appointment,
and thus an ad interim appointment takes effect immediately. The appointee can at once
assume office and exercise, as a de jure officer, all the powers pertaining to the office. X x x
Thus, the term “ad interim appointment”, as used in letters of appointment signed by the
President, means a permanent appointment made by the President in the meantime that
Congress is in recess. It does not mean a temporary appointment that can be withdrawn or
revoked at any time. The term, although not found in the text of the Constitution, has acquired a
definite legal meaning under Philippine jurisprudence. The Court had again occasion to explain
the nature of an ad interim appointment in the more recent case of Marohombsar v. Court of
Appeals, where the Court stated:
“We have already mentioned that an ad interim appointment is not descriptive of the
nature of the appointment, that is, it is not indicative of whether the appointment is
temporary or in an acting capacity, rather it denotes the manner in which the
appointment was made. In the instant case, the appointment extended to private
respondent by then MSU President Alonto, Jr. was issued without condition nor limitation
as to tenure. The permanent status of private respondent’s appointment as Executive
Assistant II was recognized and attested to by the Civil Service Commission Regional
Office No. 12. Petitioner’s submission that private respondent’s ad interim appointment
is synonymous with a temporary appointment which could be validly terminated at any
time is clearly untenable. Ad interim appointments are permanent appointment but their
terms are only until the Board disapproves them.”
An ad interim appointee who has qualified and assumed office becomes at that moment
a government employee and therefore part of the civil service. He enjoys the constitutional
protection that “[n]o officer or employee in the civil service shall be removed or suspended
except for cause provided by law.” (Section 2[3], Article IX-B of the Constitution) Thus, an ad
interim appointment becomes complete and irrevocable once the appointee has qualified into
office. X x x Once an appointee has qualified, he acquires a legal right to the office which is
protected not only by statute but also by the Constitution. He can only be removed for cause,
after notice and hearing, consistent with the requirements of due process. (Matibag v.
Benipayo, 380 SCRA 49, April 2, 2002, En Banc [Carpio])
Limitations on the Appointing Power of the President
Two months immediately before the next

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

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The Calling-out Power of the President as
Commander-in-Chief of the Armed Forces
While the President is still a civilian, Article II, Section

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

187298, July 3, 2012, En Banc (Sereno, CJ), the Court
held:
Given the foregoing, Governor Tan is not endowed

with the power to call upon the armed forces at his own
bidding. In issuing the assailed proclamation, Governor
Tan exceeded his authority when he declared a state of
emergency and called upon the Armed Forces, the police,
and his own civilian Emergency Force. The calling-out
powers contemplated under the Constitution is exclusive
to the President. An exercise by another official, even if
he is the local chief executive, is ultra vires, and may not
be justified by the invocation of Section 465 of the Local
Government Code.
IBP v. Zamora
Professor Randolph David v. GMA

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The Pardoning Power of the President
Except in cases of impeachment, or as otherwise

provided in this Constitution, the President may grant
reprieves, commutations, and pardons, and remit
fines and forfeitures, after conviction by final
judgment.
He shall also have the power to grant amnesty

with the concurrence of all the Members of the
Congress. (Section 19, 1987 Constitution)
Was the Pardon granted to former President Estrada

an Absolute Pardon?
Former President Estrada was granted an absolute
pardon that fully restored all his civil and political rights,
which naturally includes the right to seek public office.
The wording of the pardon extended to former President
Estrada is complete, unambiguous, and unqualified. It is
likewise unfettered by Articles 36 and 41 of the Revised
Penal Code. The only reasonable, objective, and
constitutional interpretation of the language of the pardon
is that the same in fact conforms to Articles 36 and 41 of
the Revised Penal Code. (Atty. Alicia Risos-Vidal v.
COMELEC, G.R. No. 206666, January 21, 2015, En Banc
[Leonardo-De Castro])
The 1987 Constitution specifically Section 19 of
Article VII and Section 5 of Article IX-C, provides that the
President of the Philippines possesses the power to grant
pardons, along with other acts of executive clemency.
It is apparent that the only instances in which the
President may not extend pardon remain to be: (1)
impeachment cases; (2) cases that have not yet resulted
in a final conviction; and (3) cases involving violations of
election laws, rules and regulations in which there was no
favorable recommendation coming from the COMELEC.
Therefore, it can be argued that any act of Congress by
way of statute cannot operate to delimit the pardoning
power of the President.

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It is unmistakably the long-standing position of this
Court that the exercise of the pardoning power is
discretionary in the President and may not be interfered
with by Congress or the Court, except only when it
exceeds the limits provided for by the Constitution.
This doctrine of non-diminution or non-impairment of
the President’s power of pardon by acts of Congress,
specifically through legislation, was strongly adhered to by
an overwhelming majority of the framers of the 1987
Constitution when they finally rejected a proposal to carve
out an exception from the pardoning power of the
President in the form of “offenses involving graft and
corruption” that would be enumerated and defined by
Congress through the enactment of a law. (Atty. Alicia
Risos-Vidal v. COMELEC, G.R. No. 206666, January 21,
2015, En Banc [Leonardo-De Castro])
The foregoing pronouncements solidify the thesis that
Articles 36 and 41 of the Revised Penal Code cannot, in
any way, serve to abridge or diminish the exclusive power
and prerogative of the President to pardon persons
convicted of violating penal laws.
X x x
A rigid and inflexible reading of the above provisions
of law is unwarranted, especially so if it will defeat or
unduly restrict the power of the President to grant
executive clemency.
It is well-entrenched in this jurisdiction that where the
words of a statute are clear, plain, and free from ambiguity,
it must be given its literal meaning and applied without
attempted interpretation. Verba legis non est
recedendum. From the words of a statute there should be
no departure (Republic v. Camacho, G.R. No. 185604,
June 13, 2013, 698 SCRA 380, 398). It is this Court’s firm
view that the phrase in the presidential pardon at issue
which declares that former President Estrada “is hereby
restored to his civil and political rights” substantially
complies with the requirement of express restoration.
X x x
For this reason, Articles 36 and 41 of the Revised

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Penal Code should be construed in a way that will give full
effect to the executive clemency granted by the President,
instead of indulging in an overly strict interpretation that
may serve to impair or diminish the import of the pardon
which emanated from the Office of the President and duly
signed by the Chief Executive himself/herself. The said
codal provisions must be construed to harmonize the
power of Congress to define crimes and prescribe
penalties for such crimes and the power of the President
to grant executive clemency. All that said provisions
impart is that the pardon of the principal penalty does not
carry with it the remission of the accessory penalties
unless the President expressly includes said accessory
penalties in the pardon. It still recognizes the Presidential
prerogative to grant executive clemency and, specifically,
to decide to pardon the principal penalty while excluding
its accessory penalties or to pardon both. Thus, Articles
36 and 41 only clarify the effect of the pardon so decided
upon by the President on the penalties imposed in
accordance with law.
A close scrutiny of the text of the pardon to former
President Estrada shows that both the principal penalty of
reclusion perpetua and its accessory penalties are
included in the pardon. The first sentence refers to the
executive clemency extended to former President Estrada
who was convicted by the Sandiganbayan of plunder and
imposed a penalty of reclusion perpetua. The latter is the
principal penalty pardoned which relieved him of
imprisonment. The sentence that followed, which states
that “(h)e is hereby restored to his civil and political rights,”
expressly remitted the accessory penalties that attached
to the principal penalty of reclusion perpetua. Hence,
even if we apply Articles 36 and 41 of the Revised Penal
Code, it is indubitable from the text of the pardon that the
accessory penalties of civil interdiction and perpetual
absolute disqualification were expressly remitted together
with the principal penalty of reclusion perpetua.
In this jurisdiction, the right to seek public elective
office is recognized by law as falling under the whole

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gamut of civil and political rights.
X x x
No less than the International Covenant on Civil and
Political Rights, to which the Philippines is a signatory,
acknowledges the existence of said rights. X x x
Recently, in Sobejana-Condon v. Commission on
Elections (G.R. No. 198742, August 10, 2012, 678 SCRA
267, 292), the Court unequivocally referred to the right to
seek public elective office as a political right x x x.
Thus, from both law and jurisprudence, the right to
seek public elective office is unequivocally considered as a
political right. Hence, the Court reiterates its earlier
statement that the pardon granted to former President
Estrada admits no other interpretation other than to mean
that, upon acceptance of the pardon granted to him, he
regained his FULL civil and political rights – including the
right to seek elective office. (Atty. Alicia Risos-Vidal v.
COMELEC, G.R. No. 206666, January 21, 2015, En
Banc [Leonardo-De Castro])
Contrary to Risos-Vidal’s declaration, the third
preambular clause of the pardon, i.e., “[w]hereas, Joseph
Ejercito Estrada has publicly committed to no longer seek
any elective position or office,” neither makes the pardon
conditional, nor militates against the conclusion that
former President Estrada’s rights to suffrage and to seek
public elective office have been restored. This is
especially true as the pardon itself does not explicitly
impose a condition or limitation, considering the
unqualified use of the term “civil and political rights” as
being restored.
Jurisprudence educates that a preamble is not an
essential part of an act as it is an introduction or
preparatory clause that explains the reasons for the
enactment, usually introduced by the word “whereas.”
(People v. Balasa, 356 Phil. 362, 396 [1998]) Whereas
clauses do not form part of a statute because, strictly
speaking, they are not part of the operative language of
the statute (Llamado v. Court of Appeals, 256 Phil. 328,
339 [1989]). In this case, the whereas clause at issue is

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not an integral part of the decree of the pardon, and
therefore, does not by itself alone operate to make the
pardon conditional or to make its effectivity contingent
upon the fulfillment of the aforementioned commitment nor
to limit the scope of the pardon. (Atty. Alicia Risos-Vidal
v. COMELEC, G.R. No. 206666, January 21, 2015, En
Banc [Leonardo-De Castro])
The Diplomatic and Treaty-Making Power of the
President
No treaty or international agreement shall be

valid and effective unless concurred in by at least two-
thirds of all the Members of the Senate. (Section 21,
Article VII, 1987 Constitution)
After the expiration in 1991 of the Agreement

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

President and not, as commonly believed, in the
legislature. The role of the Senate is limited only to giving
or withholding its consent, or concurrence, to the
ratification. (BAYAN [Bagong Alyansang Makabayan] v.
Executive Secretary Ronaldo Zamora, G.R. No.
138570, Oct. 10, 2000, En Banc [Buena])
With respect to the Visiting Forces Agreement (VFA) entered into between the Philippines
and the USA in 1998, Section 25, Article XVIII of the Constitution applies, it being a
special provision

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ection 21, Article VII deals with treaties or
S
international agreements in general, in which case, the
concurrence of at least two-thirds (2/3) of all the Members
of the Senate is required to make the subject treaty, or
international agreement, valid and binding on the part of
the Philippines. This provision lays down the general rule
on treaties or international agreements and applies to any
form of treaty with a wide variety of subject matter, such
as, but not limited to, extradition or tax treaties or those
economic in nature. All treaties or international
agreements entered into by the Philippines, regardless of
subject matter, coverage, or particular designation or
appellation, requires the concurrence of the Senate to be
valid and effective.
I n contrast, Section 25, Article XVIII is a special

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

the treatment of United States troops and personnel
visiting the Philippines. It provides for the guidelines to
govern such visits of military personnel, and further
defines the rights of the United States and the Philippine
government in the matter of criminal jurisdiction,

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movement of vessels and aircraft, importation and
exportation of equipment, materials and supplies.
ndoubtedly, Section 25, Article XVIII, which

U
specifically deals with treaties involving foreign military
bases, troops, or facilities, should apply in the instant
case. To a certain extent and in a limited sense, however,
the provisions of Section 21, Article VII will find
applicability with regard to the issue and for the sole
purpose of determining the number of votes required to
obtain the valid concurrence of the Senate x x x.
I t is a finely-imbedded principle in statutory

construction that a special provision or law prevails over a
general one. Lex specialis derogat generali. (BAYAN
[Bagong Alyansang Makabayan] v. Executive
Secretary Ronaldo Zamora, G.R. No. 138570 and
Companion Cases, Oct. 10, 2000, 342 SCRA 449, 481-
492, En Banc [Buena])
Discuss the binding effect of treaties and executive

agreements in international law.
In international law, there is no difference between

treaties and executive agreements in their binding effect
upon states concerned, as long as the functionaries have
remained within their powers. International law continues
to make no distinction between treaties and executive
agreements: they are equally binding obligations upon
nations. (BAYAN [Bagong Alyansang Makabayan] v.
Executive Secretary Ronaldo Zamora, G.R. No.
138570, Oct. 10, 2000, En Banc [Buena])
Rene A.V. Saguisag, et al. v. Executive Secretary

Paquito N. Ochoa, Jr., G.R. No. 212426, January 12,
2016, En Banc (Sereno, CJ)
Powers relative to Appropriation measures

Page 64 of 196
The President shall submit to the Congress within
thirty days from the opening of every regular session,
as the basis of the general appropriations bill, a
budget of expenditures and sources of financing,
including receipts from existing and proposed revenue
measures. (Sec. 22, Art. VII, 1987 Constitution)
The Congress may not increase the
appropriations recommended by the President for the
operation of the Government as specified in the
budget. The form, content, and manner of
preparation of the budget shall be prescribed by law.
(Sec. 25[1], Art. VI, 1987 Constitution)
Emergency Power
In times of war or other national emergency, the

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

Constitution)
The judicial power shall be vested in one

Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the courts of

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

Page 65 of 196
hus, the Constitution vests judicial power in the Court and
T
in such lower courts as may be established by law. In creating a
lower court, Congress concomitantly determines the jurisdiction
of that court, and that court, upon its creation, becomes by
operation of the Constitution one of the repositories of judicial
power. However, only the Court is a constitutionally created
court, the rest being created by Congress in its exercise of the
legislative power.
The Constitution states that judicial power includes the
duty of the courts of justice not only “to settle actual
controversies involving rights which are legally demandable and
enforceable” but also “to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Government.” It has thereby expanded the concept of judicial
power, which up to then was confined to its traditional ambit of
settling actual controversies involving rights that were legally
demandable and enforceable.
The background and rationale of the expansion of judicial
power under the 1987 Constitution were laid out during the
deliberations of the 1986 Constitutional Commission by
Commissioner Roberto R. Concepcion (a former Chief Justice
of the Philippines) in his sponsorship of the proposed provisions
on the Judiciary.
Our previous Constitutions equally recognized the extent of
the power of judicial review and the great responsibility of the
Judiciary in maintaining the allocation of powers among the
three great branches of the Government. (Maria Carolina P.
Araullo, et al. v. Benigno Simeon C. Aquino III, et al. G.R.
No., 209287, July 1, 2014, En Banc [Bersamin])
Judicial Power and the Political Question Doctrine
The Political Question Doctrine

Baker v. Carr remains the starting point for analysis
under the political question doctrine.
In Tanada v. Cuenco, we held that political questions
refer “to those questions which, under the Constitution, are
to be decided by the people in their sovereign capacity, or

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in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the
government. It is concerned with issues dependent upon
the wisdom, not legality of a particular measure.” (Vinuya,
et al. v. The Honorable Executive Secretary Alberto G.
Romulo, et al., G.R. No. 162230, April 28. 2010, En
Banc [Del Castillo])
Saturnino C. Ocampo, et al. v. Rear Admiral Ernesto C.
Enriquez, et al., G.R. No. 225973, November 8, 2016,
En Banc (Peralta)
he petitioners failed to show that President Duterte

T
committed grave abuse of discretion when he allowed the
burial of former President Ferdinand E. Marcos at the
“Libingan ng mga Bayani (LNMB).”
Held:
In sum, there is no clear constitutional or legal

basis to hold that there was a grave abuse of
discretion amounting to lack or excess of jurisdiction
which would justify the Court to interpose its authority
to check and override an act entrusted to the
judgment of another branch. Truly, the President’s
discretion is not totally unfettered. X x x. At bar,
President Duterte x x x acted within the bounds of the
law and jurisprudence, Notwithstanding the call of
human rights advocate, the Court must uphold what is
legal and just. And that is not to deny Marcos of his
rightful place at the LNMB. For even the Framers of
our Constitution intend that full respect for human
rights is available at any stage of a person’s
development, from the time he or she becomes a
person to the time he or she leaves this earth.
There are certain things that are better left for

history – not this Court – to adjudge. The Court could
only do so much in accordance with clearly
established rules and principles. Beyond that, it is

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ultimately for the people themselves, as the
sovereign, to decide, a task that may require the
better perspective that the passage of time provides.
Vinuya, et. al. v. The Honorable Executive Secretary

Alberto G. Romulo, et. al., G.R. No. 162230, April 28.
2010, En Banc (Del Castillo)
he SC may not compel the President to take up the

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

Judiciary must speak with just one voice to avoid serious
embarrassments and strained relations with foreign
countries. Elaborating, the Court held:
“To be sure, not all cases implicating foreign

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

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“In the seminal case of US v. Curtiss-Wright
Export Corp., the US Supreme Court held that ‘[t]he
President is the sole organ of the nation in its external
relations, and its sole representative with foreign
relations.’
“It is quite apparent that if, in the maintenance of

our international relations, embarrassment – perhaps
serious embarrassment – is to be avoided and
success for our aims achieved, congressional
legislation which is to be made effective through
negotiation and inquiry within the international field
must often accord to the President a degree of
discretion and freedom from statutory restriction
which would not be admissible where domestic affairs
alone involved. Moreover, he, not Congress, has the
better opportunity of knowing the conditions which
prevail in foreign countries, and especially is this true
in times of war. He has his confidential sources of
information. He has his agents in the form of
diplomatic, consular and other officials.
“X x x
“The Executive Department has determined that

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

Power of Judicial Review

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

A
a conflict of legal rights, an assertion of opposite legal
claims, susceptible of judicial resolution as distinguished
from a hypothetical or abstract difference or dispute.
There must be contrariety of legal rights that can be
interpreted and enforced on the basis of existing law or

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jurisprudence. Related to the requisite of an actual case
or controversy is the requisite of “ripeness,” which means
that something had been accomplished or performed by
either branch before a court may come into the picture,
and the petitioner must allege the existence of an
immediate or threatened injury to itself as a result of the
challenged action. Moreover, the limitation on the power
of judicial review to actual cases and controversies carries
the assurance that the courts will not intrude into areas
committed to the other branches of the government.
Those areas pertain to questions which, under the
Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary
authority has been delegated to the legislative or
executive branch of the government. As they are
concerned with questions of policy and issues dependent
upon the wisdom, not legality of a particular measure,
political questions used to be beyond the ambit of judicial
review. However, the scope of the political question
doctrine has been limited by Section 1 of Article VIII of the
1987 Constitution when it vested in the judiciary the power
to determine whether or not there has been grave abuse
of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the
Government. (Saturnino C. Ocampo, et al. v. Rear
Admiral Ernesto C. Enriquez, et al., G.R. No. 225973,
November 8, 2016, En Banc [Peralta])
n actual case or controversy means an existing case

A
or controversy that is appropriate or ripe for determination,
not conjectural or anticipatory, lest the decision of the court
would amount to an advisory opinion. (Republic
Telecommunications Holding, Inc. v. Santiago, 556 Phil.
83, 91-92 [2001]) The rule is that courts do not sit to
adjudicate mere academic questions to satisfy scholarly
interest, however intellectually challenging. The
controversy must be justiciable – definite and concrete,
touching on the legal relations of parties having adverse
legal interests. In other words, the pleadings must show

Page 71 of 196
an active antagonistic assertion of a legal right, on the one
hand, and a denial thereof, on the other; that is, it must
concern a real, tangible and not merely a theoretical
question or issue. There ought to be an actual and
substantial controversy admitting of specific relief through
a decree conclusive in nature, as distinguished from an
opinion advising what the law would be upon a
hypothetical state of facts. (Information Technology
Foundation of the Philippines v. Commission on Elections,
499 Phil. 281, 304-305 [2005])
Corollary to the requirement of an actual case or
controversy is the requirement of ripeness (Lawyers
against Monopoly and Poverty [LAMP] v. The Secretary of
Budget and Management, GR No. 164987, April 24, 2012,
670 SCRA 373, 383). A question is ripe for adjudication
when the act being challenged has had a direct adverse
effect on the individual challenging it. For a case to be
considered ripe for adjudication, it is a prerequisite that
something has then been accomplished or performed by
either branch before a court may come into the picture,
and the petitioner must allege the existence of an
immediate or threatened injury to himself as a result of the
challenged action. He must show that he has sustained or
is immediately in danger of sustaining some direct injury
as a result of the act complained of (The Province of North
Cotabato v. The Government of the Republic of the
Philippines, 589 Phil. 387, 481 [2008]). (James M.
Imbong, et al. v. Hon. Paquito N. Ochoa, Jr., et al., GR
No. 204819, April 8, 2014,
The Moot and Academic Principle
An action is considered “moot” when it no longer
presents a justiciable controversy because the issued
involved have become academic or dead, or when the
matter in dispute has already been resolved and hence,
one is not entitled to judicial intervention unless the issue
is likely to be raised again between the parties (Santiago v.
Court of Appeals, 348 Phil. 792, 800 [1998]). Time and
again, courts have refrained from even expressing an
opinion in a case where the issues have become moot

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and academic, there being no more justiciable controversy
to speak of, so that a determination thereof would be of no
practical use or value (Barbieto v. Court of Appeals, GR
No. 184646, October 30, 2009, 604 SCRA 825, 840).
Exceptions to the Moot and Academic Principle
Even on the assumption of mootness, jurisprudence
dictates that “the ‘moot and academic’ principle is not a
magical formula that can automatically dissuade the Court
in resolving a case.” The Court will decide cases,
otherwise moot, if first, there is a grave violation of the
Constitution; second, the exceptional character of the
situation and the paramount public interest is involved;
third, when the constitutional issue raised requires
formulation of controlling principles to guide the bench, the
bar, and the public; and fourth, the case is capable of
repetition yet evading review. (Belgica, et al. v. Exec.
Sec. Paquito N. Ochoa, et al., G.R. No. 208566, 710
SCRA 1, 93, Nov. 19, 2013, En Banc [Perlas-Bernabe])
Locus Standi
efined as a right of appearance in a court of justice

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

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justice on a given question (Bayan Muna v. Romulo, G.R.
No. 159618, February 1, 2011, 641 SCRA 244, 254, citing

Page 73 of 196
David v. Macapagal-Arroyo, 522 Phil. 705, 755 [2006]).
Specifically, it is “a party’s personal and substantial
interest in a case where he has sustained or will sustain
direct injury as a result” of the act being challenged, and
“calls for more than just a generalized grievance.” (Id.,
citing Jumamil v. Café, 507 Phil. 455, 465 [2005], citing
Integrated Bar of the Philippines v. Zamora, 392 Phil. 618,
632-633 [2000]) However, the rule on standing is a
procedural matter which this Court has relaxed for non-
traditional plaintiffs like ordinary citizens, taxpayers and
legislators when the public interest so requires, such as
when the subject matter of the controversy is of
transcendental importance, of overreaching significance to
society, or of paramount public interest. (Biraogo v.
Philippine Truth Commission of 2010, G.R. Nos. 192935 &
193036, December 7, 2010, 637 SCRA 78, 151 citing
Social Justice Society [SJS] v. Dangerous Drugs Board, et
al., 591 Phil. 393404 [2008]; Tatad v. Secretary of the
Department of Energy, 346 Phil. 321 [1997] and De Guia
v. COMELEC, G.R. No. 104712, May 6, 1992, 208 SCRA
420, 422.)
In the landmark case of Oposa v. Factoran, Jr., G.R.
No. 101083, July 30, 1993, 224 SCRA 792, we recognized
the “public right” of citizens to “a balanced and healthful
ecology which, for the first time in our constitutional
history, is solemnly incorporated in the fundamental law.”
We declared that the right to a balanced and healthful
ecology need not be written in the Constitution for it is
assumed, like other civil and political rights guaranteed in
the Bill of Rights, to exist from the inception of mankind
and it is an issue of transcendental importance with
intergenerational implications. Such right carries with it
the correlative duty to refrain from impairing the
environment. (Id. At 804-805) (Most Rev. Pedro D. Arigo, et
al. v. Scott H. Swift, et al., G.R. No. 206510, September 16,
2014, En Banc [Villarama, Jr.])
Taxpayers’ Suit
Taxpayers have been allowed to sue where there is a

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claim that public funds are illegally disbursed or that public
money is being deflected to any improper purpose, or that
public funds are wasted through the enforcement of an
invalid or unconstitutional law. (Saturnino C. Ocampo, et
al. v. Rear Admiral Ernesto C. Enriquez, et al., G.R. No.
Suits Filed by Concerned Citizens
s concerned citizens, petitioners are also required to

A
substantiate that the issues are of transcendental
significance, or of paramount public interest. In cases
involving such issues, the imminence and clarity of the
threat to fundamental constitutional rights outweigh the
necessity for prudence. (Saturnino C. Ocampo, et al. v.
Rear Admiral Ernesto C. Enriquez, et al., G.R. No.
Suits Filed by Members of Congress
I n the absence of a clear showing of any direct injury

to their person or the institution to which they belong, their
standing as members of the Congress cannot be upheld.
(Saturnino C. Ocampo, et al. v. Rear Admiral Ernesto
C. Enriquez, et al., G.R. No. 225973, November 8, 2016,
En Banc [Peralta])
The Liberalization of the Rules on Legal Standing
he liberalization of standing first enunciated in

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

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September 16, 2014, En Banc [Villarama, Jr.])
Facial Challenge
James M. Imbong, et al. v. Hon. Paquito N. Ochoa, Jr.,
et al., (GR No. 204819, April 8, 2014, En Banc
[Mendoza])
In United States (US) constitutional law, a facial
challenge, also known as a First Amendment Challenge,
is on that is launched to assail the validity of statutes
concerning not only protected speech, but also all other
rights in the First Amendment (See United States v.
Salerno, 481 U.S. 739 [1987]). These include religious
freedom, freedom of the press, and the right of the
people to peaceably assemble, and to petition the
Government for a redress of grievances. After all, the
fundamental right to religious freedom, freedom of the
press and peaceful assembly are but component rights of
the right to one’s freedom of expression, as they are
modes which one’s thoughts are externalized.
In this jurisdiction, the application of doctrines
originating from the U.S. has been generally maintained,
albeit with some modifications. While this Court has
withheld the application of facial challenges to strictly
penal statutes (Romualdez v. Commission on Elections,
576 Phil. 357 [2008]; Romualdez v. Sandiganbayan, 479
Phil. 265 [2004]; Estradfa v. Sandiganbayan, 421 Phil. 290
[2001]), it has expanded its scope to cover statutes not
only regulating free speech, but also those involving
religious freedom, and other fundamental rights
(Resolution, Romualdez v. Commission on Elections, 594
Phil. 305, 316 [2008]). The underlying reason for this
modification is simple. For unlike its counterpart in the
U.S., this Court, under its expanded jurisdiction, is
mandated by the Fundamental Law not only to settle
actual controversies involving rights which are legally
demandable and enforceable, but also to determine
whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the
Government. Verily, the framers of Our Constitution

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envisioned a proactive Judiciary, ever vigilant with its duty
to maintain the supremacy of the Constitution.
Consequently, considering that the foregoing petitions
have seriously alleged that the constitutional human rights
to life, speech and religion and other fundamental rights
mentioned above have been violated by the assailed
legislation, the Court has authority to take cognizance of
these kindred petitions and to determine if the RH
(Reproductive Health) Law can indeed pass constitutional
scrutiny. To dismiss these petitions on the simple
expedient that there exist no actual case or controversy,
would diminish this Court as a reactive branch of
government, acting only when the Fundamental Law has
been transgressed, to the detriment of the Filipino people.
Jose Jesus M. Disini, Jr., et al. v. The Secretary of
Justice, et al., G.R. No,. 203335, Feb. 11, 2014, En Banc
(Abad)
When a penal statute encroaches upon the freedom
of speech, a facial challenge grounded on the void-for-
vagueness doctrine is acceptable. The inapplicability of
the doctrine must be carefully delineated. As Justice
Antonio T. Carpio explained in his dissent in Romualdez v.
Commission on Elections, “we must view these
statements of the Court on the inapplicability of the
overbreadth and vagueness doctrines to penal statutes as
appropriate only insofar as these doctrines are used to
mount “facial” challenges to penal statutes not involving
free speech.”
In an “as applied” challenge, the petitioner who claims
a violation of his constitutional right can raise any
constitutional ground – absence of due process, lack of
fair notice, lack of ascertainable standards, overbreadth,
or vagueness. Here, one can challenge the
constitutionality of a statute only if he asserts a violation of
his own rights. It prohibits one from assailing the
constitutionality of the statute based solely on the violation
of the rights of third persons not before the court. This
rule is also known as the prohibition against third-party
standing.

Page 77 of 196
The Void-for-vagueness Doctrine and the Doctrine of
Overbeadth
Southern Hemisphere Engagement Network, Inc., et
al. v. Anti-Terrorism Council, et al. (G.R. Nos. 178552,
178581, 178890, 179157, & 179461, 5 October 2010, En
Banc (Carpio-Morales)
In addition, a statute or act suffers from the defect of
vagueness when it lacks comprehensible standards that
men of common intelligence must necessarily guess at its
meaning and differ as to its application. The overbreadth
doctrine, meanwhile, decrees that a governmental
purpose to control or prevent activities constitutionally
subject to state regulations may not be achieved by
means which sweep unnecessarily broadly and thereby
invade the area of protected freedoms. Distinguished
from an as-applied challenge which considers only extant
facts affecting real litigants, a facial invalidation is an
examination of the entire law, pinpointing its flaws and
defects, not only on the basis of its actual operation to the
parties, but also on the assumption or prediction that its
very existence may cause others not before the court to
refrain from constitutionally protected speech or activities.
The most distinctive feature of the overbreadth
technique is that it marks an exception to some of the
usual rules of constitutional litigation. Ordinarily, a
particular litigant claims that a statute is unconstitutional
as applied to him or her. Moreover, challengers to a law
are not permitted to raise the rights of third parties and can
only assert their own interests. In overbreadth analysis,
those rules give way; challenges are permitted to raise the
rights of third parties; and the court invalidates the entire
statute “on its fact,” not merely “as applied for” so that the
overbreadth law becomes unenforceable until a properly
authorized court construes it more narrowly. The factor
that motivates courts to depart from the normal
adjudicatory rules is the concern with the “chilling”
deterrent effect of the overbreadth statute on third parties
not courageous enough to bring suit. The Court assumes
that an overbreadth law’s “very existence may cause

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others not before the court to refrain from constitutionally
protected speech or expression.” An overbreadth ruling is
designed to remove that deterrent effect on the speech of
those third parties.
The rule established in our jurisdiction is, only statutes
on free speech, religious freedom, and other fundamental
rights may be facially challenged. Under no case may
ordinary penal statutes be subjected to a facial challenge.
Criminal statutes have general in terrorem effect resulting
from their very existence, and, if facial challenge is
allowed for this reason alone, the State may well be
prevented from enacting laws against socially harmful
conduct. In the area of criminal law, the law cannot take
chances as in the area of free speech.
X x x
Utterances not elemental but inevitably incidental to
the doing of the criminal conduct alter neither the intent of
the law to punish socially harmful conduct nor the essence
of the whole act as conduct and not free speech. It is true
that the agreements and course of conduct were in most
instances brought about through speaking or writing. But
it has never been deemed an abridgement of freedom of
speech or press to make a course of conduct illegal
merely because that conduct was, in part, initiated,
evidenced, or carried out by means of language, either
spoken, written, or printed. Such an expansive
interpretation of the constitutional guarantees of speech
and press would make it practically impossible ever to
enforce laws against agreements in restraint of trade as
well as many other agreements and conspiracies deemed
injurious to society.
The Rule-Making Power of the Supreme Court
The Supreme Court shall have the following powers:
X x x
(5) Promulgate rules concerning the protection

and enforcement of constitutional rights, pleading,

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practice, and procedure in all courts, the admission to
the practice of law, the Integrated Bar, and legal
assistance to the underprivileged. Such rules shall
provide a simplified and inexpensive procedure for the
speedy disposition of cases, shall be uniform for all
courts of the same grade, and shall not diminish,
increase, or modify substantive rights. Rules of
procedure of special courts and quasi-judicial bodies
shall remain effective unless disapproved by the
Supreme Court. (Section 5[5], 1987 Constitution)
In In Re: Petition for Recognition of the Exemption of

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

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Section 9 that “private property shall not be taken for
public use without just compensation.” The provision is
the most important protection of property rights in the
Constitution. This is a restriction on the general power of

Page 80 of 196
the government to take property. The constitutional
provision is about ensuring that the government does not
confiscate the property of some to give it to others. In part
too, it is about loss spreading. If the government takes
away a person’s property to benefit society, the society
should pay. The principal purpose of the guarantee is “to
bar the Government from forcing some people alone to
bear public burdens which, in all fairness and justice,
should be borne by the public as a whole.” (City of Manila
v. Laguio, Jr., G.R. No. 118127, April 12, 2005; cited in
August 16, 2016, En Banc [Bersamin])
The Two (2) Types of “Taking” under the Power of

Eminent Domain
here are two different types of taking that can be

T
identified. A “possessory” taking occurs when the
government confiscates or physically occupies property. A
“regulatory” taking occurs when the government’s
regulation leaves no reasonable economically viable use
of the property. (City of Manila v. Laguio, Jr., G.R. No.
118127, April 12, 2005)

Exporters Association, Inc., et al. (G.R. No. 189185,
August 16, 2016), it was argued that the requirement of
maintaining a buffer zone in all agricultural entities under
Section 6 of an ordinance of Davao City prohibiting aerial
spraying unduly deprives all agricultural landowners in that
City of the beneficial use of their property amounting to
taking without just compensation. The Supreme Court did
not agree. Citing City of Manila v. Laguio, Jr. (G.R. No.
118127, April 12, 2005), it clarified that taking only
becomes confiscatory if it substantially divests the owner
of the beneficial use of its property. According to the
Court:

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The establishment of the buffer zone is required
for the purpose of minimizing the effects of aerial
spraying within and near the plantations. Although
Section 3(e) of the ordinance requires the planting of
diversified trees within the identified buffer zone, the
requirement cannot be construed and deemed as
confiscatoy requiring payment of just compensation.
A landowner may only be entitled to compensation if
the taking amounts to a permanent denial of all
economically beneficial or productive uses of the land.
The respondents cannot be said to be permanently
and completely deprived of their landholdings
because they can still cultivate or make other
productive uses of the areas to be identified as the
buffer zones.
THE BILL OF RIGHTS
The Right to Due Process of Law
ection 1 of the Bill of Rights lays down what is

S
known as the “due process clause” of the Constitution.
In order to fall within the aegis of this provision, two

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

Page 82 of 196
he due process clauses in the American and
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Philippine Constitutions are not only worded in exactly
identical language and terminology, but more importantly,
they are alike in what their respective Supreme Courts
have expounded as the spirit with which the provisions are
informed and impressed, the elasticity in their
interpretation, their dynamic and resilient character which
make them capable of meeting every modern problem,
and their having been designed from earliest time to the
present to meet the exigencies of an undefined and
expanding future. The requirements of due process are
interpreted in both, the United States and the Philippines
as not denying to the law the capacity for progress and
improvement. Toward this effect and in order to avoid the
confines of a legal straitjacket, the courts instead prefer to
have the meaning of the due process clause “generally
ascertained by the process of inclusion and exclusion in
the course of the decisions of cases as they arise (Twining
v. New Jersey, 211 U.S. 78). Capsulized, it refers to “the
embodiment of the sporting idea of fair play” (Ermita-
Malate Hotel and Motel Owner’s Association v. City Mayor
of Manila, 20 SCRA 849 [1967]). It relates to certain
immutable principles of justice which inhere in the very
idea of free government (Holden v. Hardy, 169 U.S. 366).
ue process is comprised of two components –

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

True to the mandate of the due process clause, the
basic rights of notice and hearing pervade not only in
criminal and civil proceedings, but in administrative
proceedings as well. Non-observance of these rights will
invalidate the proceedings. Individuals are entitled to be

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notified of any pending case affecting their interests, and
upon notice, they may claim the right to appear therein
and present their side and to refute the position of the
opposing parties (Cruz, Philippine Administrative Law,
1996 ed., p. 64). (Secretary of Justice v. Lantion, 322
SCRA 160, 186-188, Jan. 18, 2000, En Banc [Melo])
Instances when Prior Notice or Hearing may be

Dispensed with
These twin rights may, however, be considered

dispensable in certain instances, such as:
. In proceedings where there is an urgent need for

1
immediate action, like the summary abatement of a
nuisance per se (Article 704, Civil Code), the preventive
suspension of a public servant facing administrative
charges (Section 63, Local Government Code, B.P. Blg.
337), the padlocking of filthy restaurants or theaters
showing obscene movies or like establishments which are
immediate threats to public health and decency, and the
cancellation of a passport of a person sought for criminal
prosecution;
2. Where there is tentativeness of administrative
action, that is, where the respondent is not precluded from
enjoying the right to notice and hearing at a later time
without prejudice to the person affected, such as the
summary distraint and levy of the property of a delinquent
taxpayer, and the replacement of a temporary appointee;
and
3. Where the twin rights have previously been offered
but the right to exercise them had not been claimed.
(Secretary of Justice v. Lantion, 322 SCRA 160, 186-
188, Jan. 18, 2000, En Banc [Melo])
The Void-for-vagueness Doctrine
he law should be declared void as it is vague, i.e., it

T
lacks comprehensible standards so that men of ordinary

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intelligence will probably have to guess as to its meaning
and differ in its application.
uch vague law is repugnant to the Constitution in

S
two (2) respects: one, it violates due process as it fails to
afford persons fair notice of the conduct to avoid and;
second, it gives law enforcers unbridled discretion in
carrying out provisions and, therefore, in effect, it becomes
an arbitrary flexing of the government’s muscle.
owever, for this to be validly invoked, the act or law

H
must be utterly vague on its face that it cannot be clarified
either by a saving clause or by statutory construction.

An Ordinance enacted by the City of Davao

prohibiting aerial spraying in all agricultural entities in that
City and requiring affected parties to shift to other modes
of pesticide application within a three-month period under
pain of penalty was declared unconstitutional as it violates
due process for being oppressive.
Held:
The impossibility of carrying out a shift to another

mode of pesticide application within three months can
readily be appreciated given the vast area of the
affected plantations and the corresponding resources
required therefor. X x x
X x x
The required civil works for the conversion to

truck-mounted boom spraying alone will consume
considerable time and financial resources given the
topography and geographical features of the

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plantations. As such, the completion could not be
completed within the short timeframe of three months.
Requiring the respondents and other affected
individuals to comply with the consequences of the
ban within the three-month period under pain of
penalty like fine, imprisonment and even cancellation
of business permits would definitely be oppressive as
to constitute abuse of police power.”
Extradition and Due Process
Secretary of Justice v. Honorable Ralph Lantion,

October 17, 2000 Resolution of the Motion for
Reconsideration
uring the initial evaluation stage at the Department

D
of Justice of an extradition proceeding, an extraditee is not
yet entitled to the documents he was requesting (like copy
of request for his extradition from the requesting
government, and supporting documents and evidences)
so that he may be able to prepare for his defense. That is
because an extradition is “sui generis;” it is not similar to a
criminal proceeding which will call into operation all of the
rights of an accused as guaranteed by the Bill of Rights.
He may be given copies of those documents once the

petition for his extradition is filed in the RTC. This is but a
“soft restraint” on his right to due process at that stage.
There is no denial of due process for as long as
fundamental fairness is assured a party.
The Right to the Equal Protection of the Laws
The constitutional right to equal protection requires

that all persons or things similarly situated should be
treated alike, both as to rights conferred and
responsibilities imposed. It requires public bodies and
institutions to treat similarly situated individuals in a similar

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manner. The guarantee of equal protection secures
every person within the State’s jurisdiction against
intentional and arbitrary discrimination, whether
occasioned by the express terms of a statute or by its
improper execution through the State’s duly constituted
authorities. The concept of equal justice under the law
demands that the State governs impartially and not to
draw distinctions between individuals solely on differences
that are irrelevant to the legitimate governmental objective.
qual protection neither requires universal application

E
of laws to all persons or things without distinction, nor
intends to prohibit legislation by limiting the object to which
it is directed or by the territory in which it is to operate.
The guaranty of equal protection envisions equality
among equals determined according to a valid
classification. If the groupings are characterized by
substantial distinctions that make real differences, one
class may be treated and regulated differently from
another. In other words, a valid classification must be: (1)
based on substantial distinctions; (2) germane to the
purposes of the law; (3) not limited to existing conditions
only; and (4) equally applicable to all members of the
class. (Mosqueda, et al. v. Pilipino Banana Growers &
The Three (3) Levels of Scrutiny to Determine the

Propriety of the Classification under the Equal
Protection Clause
he reasonability of a distinction and sufficiency of the

T
justification given by the Government for its conduct is
gauged by using the means-end test. This test requires
analysis of: (1) the interests of the public that generally
requires its exercise, as distinguished from those of a
particular class; and (2) the means employed that are
reasonably necessary for the accomplishment of the
purpose and are not unduly oppressive upon individuals.

Page 87 of 196
To determine the propriety of the classification, courts
resort to three levels of scrutiny, viz: the rational scrutiny,
intermediate scrutiny and strict scrutiny.
he rational basis scrutiny (also known as the rational

T
relation test or rational basis test) demands that the
classification reasonably relate to the legislative purpose.
The rational basis test often applies in cases involving
economics or social welfare, or to any other case not
involving a suspect class.
hen the classification puts a quasi-suspect class at

W
a disadvantage, it will be treated under intermediate or
heightened review. Classifications based on gender or
illegitimacy receives intermediate scrutiny. To survive
intermediate scrutiny, the law must not only further an
important governmental interest and be substantially
related to that interest, but the justification for the
classification must be genuine and must not depend on
broad generalizations.
he strict scrutiny review applies when a legislative

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

Exporters Association, Inc., et al., (G.R. No. 189185,
August 16, 2016, En Banc [Bersamin]), the Court,
applying the rational basis test, ruled that the ordinance of
Davao City prohibiting aerial spraying in all agricultural
entities therein as the practice produces pesticide drift
causing inconvenience and harm to the residents and

Page 88 of 196
degrades the environment, violates the equal protection
clause, hence, should be declared unconstitutional. The
Court Held:
The occurrence of pesticide drift is not limited to

aerial spraying but results from the conduct of any
mode of pesticide application. Even manual spraying
or truck-mounted boom spraying produces drift that
may bring about the same inconvenience, discomfort
and alleged health risks to the community and to the
environment. A ban against aerial spraying does not
weed out the harm that the ordinance seeks to
achieve. In the process, the ordinance suffers from
being “underinclusive” because the classification does
not include all individuals tainted with the same
mischief that the law seeks to eliminate. A
classification that is drastically underinclusive with
respect to the purpose or end appears as an irrational
means to the legislative end because it poorly serves
the intended purpose of the law.
Xxx
Aside from its being underinclusive, the assailed

ordinance also tends to be “overinclusive” because its
impending implementation will affect groups that have
no relation to the accomplishment of the legislative
purpose. Its implementation will unnecessarily
impose a burden on a wider range of individuals than
those included in the intended class based on the
purpose of the law.
It can be noted that the imposition of the ban is

too broad because the ordinance applies irrespective
of the substance to be aerially applied and
irrespective of the agricultural activity to be
conducted. The respondents admit that they aerially
treat their plantations not only with pesticides but also
vitamins and other substances. The imposition of the

Page 89 of 196
ban against aerial spraying of substances other than
fungicides and regardless of the agricultural activity
being performed becomes unreasonable inasmuch as
it patently bears no relation to the purported
inconvenience, discomfort, health risk and
environmental danger which the ordinance seeks to
address. The burden now will become more onerous
to various entities, including the respondents and
even others with no connection whatsoever to the
intended purpose of the ordinance.”
X x x
The overinclusiveness of Ordinance No. 0309-07

may also be traced to its Section 6 by virtue of its
requirement for the maintenance of the 30-meter
buffer zone. This requirement applies regardless of
the area of the agricultural landholding, geographical
location, topography, crops grown and other
distinguishing characteristics that ideally should bear
a reasonable relation to the evil sought to be avoided.
As earlier stated, only large banana plantations could
rely on aerial technology because of the financial
capital required therefor.
The establishment and maintenance of the buffer

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

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root crops and vegetables are then to be planted. It is
seriously to be doubted whether such circumstance
will prevent the occurrence of the drift to the nearby
residential areas.
Section 6 also subjects to the 30-meter buffer

zone requirement agricultural entities engaging in
organic farming, and do not contribute to the
occurrence of pesticide drift. The classification
indisputably becomes arbitrary and whimsical.
A substantially overinclusive or underinclusive

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

large farmholdings that are the only ideal venues for
the investment of machineries and equipment capable
of aerial spraying. It effectively denies the affected
individuals the technology aimed at efficient and cost-
effective operations and cultivation not only of banana
but of other crops as well. The prohibition against
aerial spraying will seriously hamper the operations of
the banana plantations that depend on aerial
technology to arrest the spread of the Black Sigatoka
disease and other menaces that threaten their
production and harvest. X x x the effect of the ban will
not be limited to Davao City in view of the significant
contribution of banana export trading to the country’s
economy.

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

Seizures
Abdula v. Guiani
I n a criminal proceeding, there are two (2)

determinations of probable cause, i.e., one is made by the
prosecutor during preliminary investigation for the purpose
of filing the criminal information in court; and the other is
made by the judge for the purpose of issuing a warrant of
arrest, or of a search warrant.
he determination of probable cause for the purpose

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

Page 92 of 196
rior notice or hearing is not required before a judge
P
issues a warrant of arrest of an extraditee once the
petition for extradition is filed in court on two (2) basis, i.e.,
statutory (Sec. 6, P.D. No. 1069); and constitutional (Sec.
2, Art. III of the Bill of Rights).
On statutory basis
Section 6, P.D. No. 1069 (Extradition Law) provides

that the moment the petition for extradition is filed in the
RTC, the judge shall cause the immediate issuance of a
warrant of arrest. Hearing entails sending of notices to
opposing parties, and receiving facts and arguments from
them. Arrest subsequent to a hearing can no longer be
considered “immediate.” The law could not have intended
the use of the word “immediate” a superfluity.
On constitutional basis
ven Section 2, Article III of the Bill of Rights does not

E
require notice or hearing before a judge issues a warrant
of arrest. On the contrary, what the Constitution provides
is “after examination under oath or affirmation of the
complainant (not of the accused) and the witnesses he
may produce.”
Search Incidental to a Lawful Arrest (Section 13, Rule

126, Rules of Court)
his is the most common among the instances of

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valid warrantless searches. The object of this kind of
warrantless search is to obtain object or effect of a crime,
like the stolen wallet or the knife used in hold-up.
he three (3) important features of this kind of

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warrantless search are:
1. In this kind if warrantless search, the arrest always

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precedes the search; the process cannot be
reversed;
2. The precedent arrest must always be lawful
because, if the precedent arrest is unlawful, the
subsequent search, although it may have yielded
positive results, may never validate the unlawful
arrest that preceded it; and
3. The search must be limited or confined only to the
immediate vicinity of the place of the arrest. It may
not be extended beyond that.
Valmonte v. De Villa
or searches at checkpoints to be valid, the following

F
must be observed:
1. The checkpoint must be pre-announced;

2. It must be stationary; and
3. The search at checkpoint must be limited to visual
search only. An intrusive search is not allowed
Social Justice Society v. Dangerous Drugs Board
he Mandatory Drug Testing under R.A. No. 9165

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(The Comprehensive Dangerous Drugs Act) does not
constitute unreasonable search prohibited by the
Constitution. It falls under the category of an
administrative search. In administrative searches, the
strict probable cause requirement is not applied.
People v. Leila Johnson
hen one is at the nation’s airport and wanted to

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travel by air, he has no reasonable expectation of privacy
and can be subject to warrantless search. This is in view
of increased concern over airplane hijacking and terrorism.
In the later case of People v. Susan Canton, the SC

held that this is now another instance of valid warrantless

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search – warrantless searches at airports.
People v. Doria
he requisites for the “plain view” doctrine to be

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validly invoked are:
1. The law enforcement officer must have a valid

justification for an intrusion, or is in a position where
he can view a particular area;
2. The discovery of the evidence in plain view must be
inadvertent; and
3. It is immediately apparent to him that the thing he
sees is object of a crime, contraband, or subject to
seizure.
It is clear that if the object is inside a closed container,

“plain view” may not be invoked. However, even if it inside
a closed container but if due to the configuration of the
container, or due to its transparency, it can still be seen
from the outside what is inside, “plain view” may still be
invoked.
The Right to Privacy
Is there a constitutional right to privacy?
The essence of privacy is the “right to be let alone.”

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

Page 95 of 196
Indeed, if we extend our judicial gaze we will find that
the right of privacy is recognized and enshrined in several
provisions of our Constitution. (Morfe v. Mutuc, 22 SCRA
424, 444 [1968]; Cortes, The Constitutional Foundations of
Privacy, p. 18 [1970]). It is expressly recognized in
Section 3(1) of the Bill of Rights x x x. Other facets of the
right to privacy are protected in various provisions of the
Bill of Rights (viz: Secs. 1, 2, 6, 8, and 17. (Ople v.
Torres, G.R. No. 127685, July 23, 1998 [Puno])
What are the zones of privacy recognized and

protected in our laws?
The Civil Code provides that “[e]very person shall

respect the dignity, personality, privacy and peace of mind
of his neighbors and other persons” and punishes as
actionable torts several acts by a person of meddling and
prying into the privacy of another. It also holds a public
officer or employee or any private individual liable for
damages for any violation of the rights and liberties of
another person, and recognizes the privacy of letters and
other private communications. The Revised Penal Code
makes a crime the violation of secrets by an officer, the
revelation of trade and industrial secrets, and trespass to
dwelling. Invasion of privacy is an offense in special laws
like the Anti-Wiretapping Law (R.A. 4200), the Secrecy of
Bank Deposits (R.A. 1405) and the Intellectual Property
Code (R.A. 8293). The Rules of Court on privileged
communication likewise recognize the privacy of certain
information (Section 24, Rule 130[c], Revised Rules on
Evidence). (Ople v. Torres, G.R. No. 127685, July 23,
1998 [Puno])
Jose Jesus M. Disini, Jr., et al. v. The Secretary of
Justice, et al., G.R. No,. 203335, Feb. 11, 2014, En Banc
(Abad)
The right to privacy, or the right to be let alone, was

institutionalized in the 1987 Constitution as a facet of the
right protected by the guarantee against unreasonable

Page 96 of 196
searches and seizures. But the Court acknowledged its
existence as early as 1968 in Morfe v. Mutuc, it ruled that
the right to privacy exists independently of its identification
with liberty; it is in itself fully deserving of constitutional
protection.
Relevant to any discussion of the right to privacy is

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

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

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privacy: (a) the right against unreasonable searches and
seizures, which is the basis of the right to be let alone, and
(b) the right to privacy of communication and
correspondence.
In assessing the challenge that the State has

impermissibly intruded into these zones of privacy, a court
must determine whether a person has exhibited a
reasonable expectation of privacy and, if so, whether that
expectation has been violated by unreasonable
government intrusion.

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Freedom of Expression
Content-based restrictions on free speech, and

content-neutral regulations
Content-based restrictions are imposed because of

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

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

for the restriction of speech is that content-based
restrictions distort public debate, have improper
motivation, and are usually imposed because of fear of
how people will react to a particular speech. No such

Page 98 of 196
reasons underlie content-neutral regulations, like
regulation of time, place and manner of holding public
assemblies under B.P. Blg. 880, the Public Assembly Act
of 1985. (Osmena v. COMELEC, 288 SCRA 447, March
31, 1998 [Mendoza])
What is the most influential test for distinguishing

content-based from content-neutral regulations?
The United States Supreme Court held in United

States v. O’ Brien:
[A] a governmental regulation is sufficiently justified

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

content-based from content-neutral regulations and is said
to have “become canonical in the review of such laws.” (G.
Gunther & K. Sullivan, Constitutional Law 1217 [13 ed. th
1997]). It is noteworthy that the O’ Brien test has been

applied by this Court in at least two cases (Adiong v.
Comelec, 207 SCRA 712 [1992]; Osmena v. Comelec,
supra.).
Under this test, even if a law furthers an important or

substantial governmental interest, it should be invalidated
if such governmental interest is “not unrelated to the
suppression of free expression.” Moreover, even if the
purpose is unrelated to the suppression of free speech,
the law should nevertheless be invalidated if the restriction
on freedom of expression is greater than is necessary to

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achieve the governmental purpose in question. (Social
Weather Stations, Inc. v. Comelec, G.R. No. 147571,
May 5, 2001, En Banc [Mendoza])
Chavez v. Secretary Gonzales
The Diocese of Bacolod, Represented by the Most

Rev. Bishop Vicente M. Navarra, et al. v. COMELEC,
GR No. 205728, January 21, 2015, En Banc (Leonen)
his case defines the extent that our people may

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shape the debates during elections. It is significant and of
first impression. We are asked to decide whether the
Commission on Elections (COMELEC) has the
competence to limit expressions made by the citizens –
who are not candidates – during elections.
efore us is a special civil action for certiorari and

B
prohibition under Rule 65 of the Rules of Court seeking to
nullify COMELEC’s Notice to Remove Campaign
Materials.
SUBSTANTIVE ISSUES
A. COMELEC had no legal basis to regulate

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

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Constitution x x x.

Page 100 of 196
x x We held that the “evil sought to be prevented by
X
this provision is the possibility that a franchise holder may
favor or give any undue advantage to a candidate in terms
of advertising space or radio or television time.” (Sanidad
v. COMELEC, 260 Phil. 565 [1990]) This Court found that
“[m]edia practitioners exercising their freedom of
expression during plebiscite periods are neither the
franchise holders nor the candidates[,]” thus, their right to
expression during this period may not be regulated by
COMELEC.
imilar to the media, petitioners in the case at bar are

S
neither franchise holders nor candidates.
espondents likewise cite Article IX-C, Section 2(7) of

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the Constitution x x x.
ased on the enumeration made on acts that may be

B
penalized, it will be inferred that this provision only affects
candidates.
etitioners assail the “Notice to Remove Campaign

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

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material in their issuances. The above provisions
regulating the posting of campaign materials only apply to
candidates and political parties, and petitioners are neither
of the two.
Section 3 of Republic Act No. 9006 on “Lawful

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

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refers to matter done by or on behalf of and in
coordination with candidates and political parties. Some
level of coordination with the candidates and political
parties for whom the election propaganda are released
would ensure that these candidates and political parties
maintain within the authorized expenses limitation.
he tarpaulin was not paid for by any candidate or

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political party. There was no allegation that petitioners
coordinated with any of the persons named in the tarpaulin
regarding its posting. On the other hand, petitioners
posted the tarpaulin as part of their advocacy against the
RH Law.
X x x
I n this case, the tarpaulin contains speech on a matter

of public concern, that is, a statement of either
appreciation or criticism on votes made in the passing of
the RH law. Thus, petitioners invoke their right to freedom
of expression.
B. The violation of the constitutional right to

freedom of speech and expression
No law. . .
While it is true that the present petition assails not a

law but an opinion by the COMELEC Law Department,

Page 102 of 196
this Court has applied Article III, Section 4 of the
Constitution even to governmental acts.
. . . shall be passed abridging. . .
ll regulations will have a impact directly or indirectly

A
on expression. The prohibition against the abridgment of
speech should not mean an absolute prohibition against
regulation. The primary and incidental burden on speech
must be weighed against a compelling state interest
clearly allowed in the Constitution. The test depends on
the relevant theory of speech implicit in the kind of society
framed by our Constitution.
ur Constitution has also explicitly included

O the
freedom of expression, separate and in addition to the
freedom of speech and of the press provided in the US
Constitution. The word “expression” was added in the
1987 Constitution x x x for having a wider scope x x x.
peech may be said to be inextricably linked to

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freedom itself as “[t]he right to think is the beginning of
freedom, and speech must be protected from the
government because speech is the beginning of thought.”
(Freedom of Speech and Expression, 116 Harv. L. Rev.
272, 277 [2002], quoting Justice Kennedy in Ashcroft v.
Free Speech Coalition, 122 S. Ct. 1389, 1403 [2002])
X x x
ommunication is an essential outcome of protected

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speech.
ommunication exists when “(1) a speaker, seeking

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to signal others, uses conventional actions because he or
she reasonably believes that such actions will be taken by
the audience in the manner intended; and (2) the audience
so takes the actions.” (Heidi M. Hurd, Sovereignty in
Silence, 99 Yale L. J. 945, 954 [1990]) “[I]n communicative

Page 103 of 196
action[,] the hearer may respond to the claims by x x x
either accepting the speech act’s claims or opposing them
with criticism or requests for justification.” (Hugh Baxter,
System and Lifeworld in Haberma’s Theory of Law, 23
Cardozo L. Rev. 473, 499 [2002])
peech is not limited to vocal communication.

S
“[C]onduct is treated as a form of speech sometimes
referred to as ‘symbolic speech[,]’ (Joshua Waldman,
Symbolic Speech and Social Meaning, 97 Colum. L. Rev.
1844, 1847 [1997]) such that “’when ‘speech’ and
‘nonspeech’ elements are combined in the same course of
conduct,’ the ‘communicative element’ of the conduct may
be ‘sufficient to bring into play the [right to freedom of
expression].’” (Id., citing US v. O’Brien, 391 U.S. 367, 376
[1968])
he right to freedom of expression, thus, applies to

T
the entire continuum of speech from utterances made to
conduct enacted, and even to inaction itself as a symbolic
manner of communication.
ven before freedom “of expression” was included in

E
Article III, Section 4 of the present Constitution, this court
has applied its precedent version to expressions other
than verbal utterances.
Freedom of expression and equality
The possibility of abuse
he guarantee of freedom of expression to individuals

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

Page 104 of 196
effective enforcement will be the least restrictive means to
the fundamental freedom.
X x x
OMELEC”s general role includes a mandate to

C
ensure equal opportunities and reduce spending among
candidates and their registered political parties. It is not to
regulate or limit speech of the electorate as it strives to
participate in the electoral exercise.
he tarpaulin in question may be viewed as producing

T
a caricature of those who are running for public office.
Their message may be construed generalizations of very
complex individuals and party-list organizations. They are
classified into black and white: as belonging to “Team
Patay” or “Team Buhay.”
ut this caricature, though not agreeable to some, is

B
still protected speech.
X x x
ome may have thought that there should be more

S
room to consider being more broad-minded and non-
judgmental. Some may have expected that the authors
would give more space to practice forgiveness and
humility.
ut, the Bill of Rights enumerated in our Constitution

B
is an enumeration of our fundamental liberties. It is not a
detailed code that prescribes good conduct. It provides
space for all to be guided by their conscience, not only in
the act that they do to others but also in judgment of the
acts of others.
reedom for the thought we can disagree with can be

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wielded not only by those in the minority. This can often
be expressed by dominant institutions, even religious

Page 105 of 196
ones. That they made their point dramatically and in a
large way does not necessarily mean that their statements
are true, or that they have basis, or that they have been
expressed in good taste.
mbedded in the tarpaulin, however, are opinions

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

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elections.
hat is involved in this case is the most sacred of

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speech forms: expression by the electorate that tends to
rouse the public to debate contemporary issues. This is
not speech by candidates or political parties to entice
votes. It is a portion of the electorate telling candidates
the conditions for their election. It is the substantive
content of the right to suffrage.
his is a form of speech hopeful of a quality of

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democracy that we should all deserve. It is protected as a
fundamental and primordial right by our Constitution. The
expression in the medium chosen by petitioners deserves
our protection.
Freedom of the Press
Four (4) Aspects of Press Freedom
Philippine jurisprudence, even as early as the period

under the 1935 Constitution, has recognized four aspects
of freedom of the press. These are (1) freedom from prior
restraint; (2) freedom from punishment subsequent to

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publication; (3) freedom of access to information; and (4)
freedom of circulation. (Francisco Chavez v. Raul M.
Gonzales, et. al., G.R. No. 168338, 15 February 2008,
En Banc [Puno, CJ])
Freedom of Assembly
he first point to mark is that the right to peaceably

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assemble and petition for redress of grievances is,
together with freedom of speech, of expression, and of the
press, a right that enjoys primacy in the realm of
constitutional protection. For these rights constitute the
very basis of a functional democratic polity, without which
all the other rights would be meaningless and unprotected.
(BAYAN, et al. v. Ermita, et al., G.R. No. 169838, April
25, 2006, En Banc [Azcuna])
Batas Pambansa Blg. 880 – The Public Assembly Act

of 1985
Meaning of Public Assembly
“ Public assembly” means any rally, demonstration,

march, parade, procession or any other form of mass or
concerted action held in a public place for the purpose of
presenting a lawful cause, or expressing an opinion to the
general public on any particular issue; or protesting or
influencing any state of affairs whether political, economic
or social; or petitioning the government for redress of
grievances.
he processions, rallies, parades, demonstrations,

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public meetings and assemblages for religious purposes
shall be governed by local ordinances; Provided, however,
That the declaration of policy as provided in Section 2 of
this Act shall be faithfully observed.
he definition herein contained shall not include

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picketing and other concerted action in strike areas by

Page 107 of 196
workers and employees resulting from a labor dispute as
defined by the Labor Code, its implementing rules and
regulations, and by the Batas Pambansa Bilang 227.
(Section 3[a], B.P. Blg. 880)
Permit when required and when not required
written permit shall be required for any person or

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

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six months after the effectivity of this Act establish or
designate at least one suitable “freedom park” or mall in
their respective jurisdictions which, as far as practicable,
shall be centrally located within the poblacion where
demonstrations and meetings may be held at any time
without the need of any prior permit. (Section 5, B.P. Blg.
880)
Action to be taken on the application (Section 6, B.P.

Blg. 880)
(a) It shall be the duty of the mayor or any official

acting in his behalf to issue or grant a permit unless
there is clear and convincing evidence that the
public assembly will create a clear and present

Page 108 of 196
danger to public order, public safety, public
convenience, public morals or public health.
(b) The mayor or any official acting in his behalf shall

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

and grave danger of a substantive evil warranting
the denial or modification of the permit, he shall
immediately inform the applicant who must be
heard on the matter.
(d) The action on the permit shall be in writing and

served on the applicant within twenty-four hours.
(e) If the mayor or any official acting in his behalf

denies the application or modifies the terms thereof
in his permit, the applicant may contest the decision
in an appropriate court of law.
Integrated Bar of the Philippines v. Hon. Mayor Jose

“Lito” Atienza, G.R. No. 175241, 24 February 2010, 1st
Div. (Carpio Morales)
he Integrated Bar of the Philippines (IBP) applied for

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a permit to rally at Mendiola Bridge. However, then Manila
Mayor Jose “Lito” Atienza issued a permit to rally at Plaza
Miranda instead.
Issue: Whether or not the appellate court erred in

holding that the modification of the venue in IBP’s rally
permit does not constitute grave abuse of discretion.

Page 109 of 196
Held: Section 6(c) of the Public Assembly Act (BP
880) provides that “If the mayor is of the view that there is
imminent and grave danger of a substantive evil
warranting the denial or modification of the permit, he shall
immediately inform the applicant who must be heard on
the matter.”
In modifying the permit outright, Atienza gravely

abused his discretion when he did not immediately inform
the IBP who should have been heard first on the matter of
his perceived imminent and grave danger of a substantive
evil that may warrant the changing of the venue. Atienza
failed to indicate how he had arrived at modifying the
terms of the permit against the standard of a clear and
present danger test which x x x is an indispensable
condition to such modification. Nothing in the issued
permit adverts to an imminent and grave danger of a
substantive evil, which “blank” denial or modification
would, when granted imprimatur as the appellate court
would have it, render illusory any judicial scrutiny thereof.
It is true that the licensing official is not devoid of

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

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“ Maximum tolerance” means the highest degree of
restraint that the military, police and other peace keeping
authorities shall observe during a public assembly or in the
dispersal of the same. (Section 3[c], B.P. Blg. 880)
B.P. No. 880 is merely a “content-neutral” regulation
I t is very clear that B.P. No. 880 is not an absolute ban

of public assemblies but a restriction that simply regulates
the time, place and manner of the assemblies. This was
adverted to in Osmena v. Comelec (G.R. No. 132231,
March 31, 1998, 288 SCRA 447), where the Court referred
to it as a “content-neutral” regulation of the time, place,
and manner of holding public assemblies (Ibid, p. 478).
fair and impartial reading of B.P. No. 880 thus

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readily shows that it refers to all kinds of public
assemblies (except picketing and other concerted action in
strike areas by workers and employees resulting from a
labor dispute, which are governed by the Labor Code and
other labor laws, political meeting or rallies held during
election campaign period, which are governed by the
Election Code and other election related laws, and public
assemblies in the campus of a government-owned and
operated educational institution, which shall be subject to
the rules and regulations of said educational institution
[Sec. 3(a) and Sec. 4 of B.P. No. 880]) that would use
public places. The reference to “lawful cause” does not
make it content-based because assemblies really have to
be for lawful causes, otherwise they would not be
“peaceable” and entitled to protection. Neither are the
words “opinion,” “protesting” and “influencing” in the
definition of public assembly content-based, since they
can refer to any subject. The words “petitioning the
government for redress of grievances” come from the
wording of the Constitution, so its use cannot be avoided.
Finally, maximum tolerance is for the protection and
benefits of all rallyists and is independent of the content of

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the expressions in the rally.
urthermore, the permit can only be denied on the

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ground of clear and present danger to public order, public
safety, public convenience, public morals or public health.
This is a recognized exception to the exercise of the right
even under the Universal Declaration of Human Rights
and the International Covenant on Civil and Political
Rights x x x. (BAYAN, et al. v. Ermita, et al., G.R. No.
169838, April 25, 2006, En Banc [Azcuna])
The Calibrated Pre-emptive Response (CPR) Policy

adopted by the Arroyo Administration in dealing with
public assemblies
he Court now comes to the matter of the CPR. As

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

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maximum tolerance mandated by B.P. No. 880, CPR
serves no valid purpose if it means the same thing as
maximum tolerance and is illegal if it means something
else. Accordingly, what is to be followed is and should be
that mandated by the law itself, namely, maximum
tolerance.
I n sum, this Court reiterates its basic policy of

upholding the fundamental rights of our people, especially
freedom of expression and freedom of assembly.
or this reason, the so-called calibrated preemptive

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response policy has no place in our legal firmament and
must be struck down as a darkness that shrouds freedom.
It merely confuses our people and is used by some police

Page 112 of 196
agents to justify abuses. On the other hand, B.P. No. 880
cannot be condemned as unconstitutional; it does not
curtail or unduly restrict freedoms; it merely regulates the
use of public places as to the time, place and manner of
assemblies. Far from being insidious, “maximum
tolerance” is for the benefit of rallyists, not the
government., The delegation to the mayors of the power
to issue rally “permits” is valid because it is subject to the
constitutionally-sound “clear and present danger”
standard. (BAYAN, et al. v. Ermita, et al., G.R. No.
169838, April 25, 2006, En Banc [Azcuna])
Freedom of Religion
Ang Ladlad-LGBT Party v. Commission on Elections,

G.R. No. 190582, 618 SCRA 32, April 8, 2010, En Banc
(Del Castillo)
he decision of the COMELEC not to allow the Ang

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Ladlad-LGBT Party to participate in party-list elections
because its members are “immoral,” citing verses from the
Bible and the Koran, was ruled by the SC to be tainted
with grave abuse of discretion and, therefore, nullified, as
it violated the non-establishment clause of freedom of
religion. In effect, the COMELEC used religious standard
in its decision by using verses from the Bible and the
Koran. The COMELEC, as a government agency, is not
supposed to be guided by religious standards in its
decisions and actions.
Held:
“Our Constitution provides in Article III, Section 5

that”[n]o law shall be made respecting an
establishment of religion, or prohibiting the free
exercise thereof.” At bottom, what our non-
establishment clause calls for is “government
neutrality in religious matters.” Clearly, “governmental

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reliance on religious justification is inconsistent with
this policy of neutrality.” We thus find that it was
grave violation of the non-establishment clause for the
COMELEC to utilize the Bible and the Koran to justify
the exclusion of Ang Ladlad.
“Rather than relying on religious belief, the

legitimacy of the Assailed Resolutions should depend,
instead, on whether the COMELEC is able to advance
some justification for its rulings beyond mere
conformity to religious doctrine. Otherwise stated,
government must act for secular purposes and in
ways that have primarily secular effects. X x x.”
What is a purely ecclesiastical affair to which the State

can not meddle following the Separation of Church
and State Doctrine?
An ecclesiastical affair is “one that concerns doctrine,

creed, or form of worship of the church, or the adoption
and enforcement within a religious association of needful
laws and regulations for the government of the
membership, and the power of excluding from such
associations those deemed not worthy of membership.”
Based on this definition, an ecclesiastical affair involves
the relationship between the church and its members and
relate to matters of faith, religious doctrines, worship and
governance of the congregation. To be concrete,
examples of this so-called ecclesiastical affairs to which
the State cannot meddle are proceedings for
excommunication, ordinations of religious ministers,
administration of sacraments and other activities with
attached religious significance. (Pastor Dionisio V.
Austria v. NLRC, G.R. No. 124382, Aug. 16, 1999, 1 st
Div. [Kapunan])
Iglesia Ni Cristo v. Court of Appeals
Under the non-establishment clause of freedom of

Page 114 of 196
religion, when it comes to religious differences, the State
enjoys no banquet of options – neutrality alone is its fixed
and immovable stance. It is not its task to defend one
religion against an attack by another religion. After all, the
remedy against bad theology is better theology. Let them
duel in the market place of ideas. The marketplace of
ideas demands that speech should be met by more
speech, for it is the spark of opposite speech, the heat of
colliding ideas, that can fan the embers of truth.
James M. Imbong, et al. v. Hon. Paquito N. Ochoa, Jr.,

et al., GR No. 204819, April 8, 2014, En Banc
(Mendoza)
herefore, THE PETITIONS ARE partially granted.

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Accordingly, the Court declares R.A. No. 10354 as NOT
UNCONSTITUTIONAL, except with respect to the
following provisions which are declared
UNCONSTITUTIONAL:
1) Section 7 and the corresponding provision in RH-

IRR insofar as they: a) require private health
facilities And non-maternity specialty hospitals and
hospitals owned and operated by a religious group
to refer patients, not in an emergency or life-
threatening case, as defined under Republic Act no.
8344, to another health facility which is
conveniently accessible; and b) allow minor-parents
or minors who have suffered a miscarriage access
to modern methods of family planning without
written consent from their parents or guardian/s;
2) Section 23(a)(1) and the corresponding provision in

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

Page 115 of 196
3) Section 23(a)(2)(i) and the corresponding provision
in the RH-IRR insofar as they allow a married
individual, not in an emergency or life-threatening
case, as defined under Republic Act No. 8344, to
undergo reproductive health procedures without the
consent of the spouse;
4) Section 23(a)(2)(ii) and the corresponding provision

in the RH-IRR insofar as they limit the requirement
of parental consent only to elective surgical
procedures;
5) Section 23(a)(3) and the corresponding provision in

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

insofar as they punish any public officer who
refuses to support reproductive health programs or
shall do any act that hinders the full implementation
of a reproductive health program, regardless of his
or her religious beliefs;
7) Section 17 and the corresponding provision in the

RH-IRR regarding the rendering of pro bono
reproductive health service in so far as they affect
the conscientious objector in securing Philhealth
accreditation; and
8) Section 3.01(a) and Section 3.01(j) of the RH-IRR,

which added the qualifier “primarily” in defining

Page 116 of 196
abortifacients and contraceptives, as they are ultra
vires and, therefore, null and void for contravening
Section 4(a) of the RH Law and violating Section
12, Article II of the Constitution.
Liberty of Abode and Freedom of Movement
The liberty of abode and of changing the same

within the limits prescribed by law shall not be
impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in
the interest of national security, public safety, or public
health, as may be provided by law. (Sec. 6, Art. III,
1987 Constitution)
Limitation on the Right to Travel
The right to travel is guaranteed by the Constitution.

However, the exercise of such right is not absolute.
Section 6, Article III of the 1987 Constitution allows
restrictions on one’s right to travel provided that such
restriction is in the interest of national security, public
safety or public health as may be provided by law. This,
however, should by no means be construed as limiting the
Court’s inherent power of administrative supervision over
lower courts.
CA Circular No. 49-2003 does not restrict but merely

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regulates, by providing guidelines to be complied by
judges and court personnel, before they can go on leave
to travel abroad. To “restrict” is to restrain or prohibit a
person from doing something; to “regulate” is to govern or
direct according to rule. To ensure management of court
dockets and to avoid disruption in the administration of
justice, OCA Circular No. 49-2003 requires a judge who
wishes to travel abroad to submit, together with his
application for leave of absence duly recommended for
approval by his Executive Judge, a certification from the

Page 117 of 196
Statistics Division, Court Management Office of the OCA.
The said certification shall state the condition of his
docket based on his Certificate of Service for the month
immediately preceding the date of his intended travel, that
he has decided and resolved all cases or incidents within
three (3) months from date of submission, pursuant to
Section 15(1) and (2), Article VIII of the 1987 Constitution.
Thus, for traveling abroad without having been

officially allowed by the Court, Judge Macarine is guilty of
violation of OCA Circular No. 49-2003. (Office of
Administrative Services–Office of the Court
Administrator v. Judge Ignacio B. Macarine, A.M. No.
MTJ-10-1770, 18 July 2012, 2 Div. [Brion]) nd
The Right of the People to Information on Matters of

Public Concern
In Valmonte v. Belmonte, Jr., the Court emphasized

that the information sought must be “matters of public
concern,” access to which may be limited by law.
Similarly, the state policy of full public disclosure extends
only to “transactions involving public interest” and may
also be “subject to reasonable conditions prescribed by
law.” As to the meanings of the terms “public interest” and
“public concern,” the Court, in Legaspi v. Civil Service
Commission, elucidated:
“In determining whether or not a particular

information is of public concern, there is no rigid test
which can be applied. ‘Public concern’ like ‘public
interest’ is a term that eludes exact definition. Both
terms embrace a broad spectrum of subjects which
the public may want to know, either because these
directly affect their lives, or simply because such
matters naturally arouse the interest of an ordinary
citizen. In the final analysis, it is for the courts to
determine on a case by case basis whether the

Page 118 of 196
matter at issue is of interest or importance, as it
relates to or affects the public.”
Considered a public concern in the above-mentioned

case was the “legitimate concern of citizens to ensure that
government positions requiring civil service eligibility are
occupied only by persons who are eligibles.” So was the
need to give the general public adequate notification of
various laws that regulate and affect the actions and
conduct of citizens, as held in Tanada. Likewise did the
“public nature of the loanable funds of the GSIS and the
public office held by the alleged borrowers (members of
the defunct Batasang Pambansa)” qualify the information
sought in Valmonte as matters of public interest and
concern. In Aquino-Sarmiento v. Morato, the Court also
held that official acts of public officers done in pursuit of
their official functions are public in character; hence, the
records pertaining to such official acts and decisions are
within the ambit of the constitutional right of access to
public records.
Under Republic Act No. 6713, public officials and

employees are mandated to “provide information on their
policies and procedures in clear and understandable
language, [and] ensure openness of information, public
consultations and hearing whenever appropriate x x x,”
except when “otherwise provided by law or when required
by the public interest.” In particular, the law mandates free
public access, at reasonable hours, to the annual
performance reports of offices and agencies of
government and government-owned or controlled
corporations; and the statements of assets, liabilities and
financial disclosures of all public officials and employees.
In general, writings coming into the hands of public officers

in connection with their official functions must be
accessible to the public, consistent with the policy of
transparency of governmental affairs. This principle is
aimed at affording the people an opportunity to determine

Page 119 of 196
whether those to whom they have entrusted the affairs of
the government are honestly, faithfully and competently
performing their functions as public servants. Undeniably,
the essence of democracy lies in the free-flow of thought;
but thoughts and ideas must be well-informed so that the
public would gain a better perspective of vital issues
confronting them and, thus, be able to criticize as well as
participate in the affairs of the government in a
responsible, reasonable and effective manner. Certainly, it
is by ensuring an unfettered and uninhibited exchange of
ideas among a well-informed public that a government
remains responsive to the changes desired by the people.
(Chavez v. PCGG, 299 SCRA 744, Dec. 9, 1998,
[Panganiban])
Recognized Restrictions to the Right of the People to

Information on Matters of Public Concern
1) National security matters and intelligence

information. This jurisdiction recognizes the
common law holding that there is a governmental
privilege against public disclosure with respect to
state secrets regarding military, diplomatic and
other national security matters. Likewise,
information on inter-government exchanges prior to
the conclusion of treaties and executive
agreements may be subject to reasonable
safeguards for the sake of national interest;
2) Trade or industrial secrets (pursuant to the

Intellectual Property Code [R.A. No. 8293,
approved on June 6, 1997] and other related laws)
and banking transactions (pursuant to the Secrecy
of Bank Deposits Act [R.A. No. 1405, as
amended]);
3) Criminal matters, such as those relating to the

apprehension, the prosecution and the detention of
criminals, which courts may not inquire into prior to

Page 120 of 196
such arrest, detention and prosecution;
4) Other confidential information. The Ethical

Standards Act (R.A. No. 6713, enacted on February
20, 1989) further prohibits public officials and
employees from using or divulging “confidential or
classified information officially known to them by
reason of their office and not made available to the
public.” (Sec. 7[c], ibid.) Other acknowledged
limitations to information access include diplomatic
correspondence, closed door Cabinet meetings and
executive sessions of either house of Congress, as
well as the internal deliberations of the Supreme
Court. (Chavez v. PCGG, 299 SCRA 744, Dec. 9,
1998, [Panganiban])
Re: Request for Copy of 2008 Statement of Assets,

Liabilities and Networth (SALN) and Personal Data
Sheet or Curriculum Vitae of the Justices of the
Supreme Court and Officers and Employees of the
Judiciary (A.M. No. 09-8-6-SC, June 13, 2012, En Banc
[Mendoza])
Section 7 of Article III of the Constitution is relevant in

the issue of public disclosure of SALN and other
documents of public officials.
mphasizing the import and meaning of the foregoing

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constitutional provision, the Court, in the landmark case of
Valmonte v. Belmonte, Jr., elucidated that the right to
information goes hand in hand with the constitutional
policies of full public disclosure and honesty in the public
service. It is meant to enhance the widening role of the
citizenry in governmental decision-making as well as in
checking abuse in government. The importance of the
said right was pragmatically explicated that the
incorporation of this right in the Constitution is a
recognition of the fundamental role of free exchange of
information in a democracy. There can be no realistic

Page 121 of 196
perception by the public of the nation’s problems nor a
meaningful democratic decision-making if they are denied
access to information of general interest. Information is
needed to enable the members of society to cope with the
exigencies of the times. However, restrictions on access
to certain records may be imposed by law.
hus, while “public concern” like “public interest”

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

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

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R.A. No. 7438 (An Act Defining Certain Rights of
Person Arrested, Detained or Under Custodial
Investigation as well as the Duties of the Arresting,
Detaining and Investigating Officers and Providing
Penalties for Violations Thereof)
The Right to Bail
In bail application where the accused is charged with

a capital offense, will it be proper for the judge to
grant bail without conducting hearing if the
prosecutor interposes no objection to such
application?
Jurisprudence is replete with decisions compelling

judges to conduct the required hearings in bail
applications, in which the accused stands charged with a
capital offense. The absence of objection from the
prosecution is never a basis for the grant of bail in such
cases, for the judge has no right to presume that the
prosecutor knows what he is doing on account of
familiarity with the case. “Said reasoning is tantamount to
ceding to the prosecutor the duty of exercising judicial
discretion to determine whether the guilt of the accused is
strong. Judicial discretion is the domain of the judge
before whom the petition for provisional liberty will be
decided. The mandated duty to exercise discretion has
never been reposed upon the prosecutor.”
Imposed in Baylon v. Sison was this mandatory duty

to conduct a hearing despite the prosecution's refusal to
adduce evidence in opposition to the application to grant
and fix bail. (Joselito V. Narciso v. Flor Marie Sta.
Romana-Cruz, G.R. No. 134504, March 17, 2000, 3 Div. rd
[Panganiban])
Is a condition in an application for bail that accused

Page 123 of 196
be first arraigned before he could be granted bail
valid?
In the first place x x x in cases where it is authorized,

bail should be granted before arraignment, otherwise the
accused may be precluded from filing a motion to quash.
For if the information is quashed and the case is
dismissed, there would then be no need for the
arraignment of the accused. In the second place, the trial
court could ensure the presence of petitioner at the
arraignment precisely by granting bail and ordering his
presence at any stage of the proceedings, such as
arraignment. Under Rule 114, Sec. 2(b) of the Rules on
Criminal Procedure, one of the conditions of bail is that
“the accused shall appear before the proper court
whenever so required by the court or these Rules,” while
under Rule 116, Sec. 1(b) the presence of the accused at
the arraignment is required.
On the other hand, to condition the grant of bail to an

accused on his arraignment would be to place him in a
position where he has to choose between (1) filing a
motion to quash and thus delay his release on bail
because until his motion to quash can be resolved, his
arraignment cannot be held, and (2) foregoing the filing of
a motion to quash so that he can be arraigned at once and
thereafter be released on bail. These scenarios certainly
undermine the accused’s constitutional right not to be put
on trial except upon valid complaint or information
sufficient to charge him with a crime and his right to bail.
(Lavides v. CA, 324 SCRA 321, Feb. 1, 2000, 2 Div. nd
[Mendoza])
Government of Hongkong Special Administrative

Region v. Judge Olalia
he decision of the SC in Government of the USA v.

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Judge Purganan which says that “no bail rule applies in
extradition since bail is available only to one who had

Page 124 of 196
arrested and detained for violation of Philippine criminal
laws” was re-examined and, after re-examination, the rule
now is that an extraditee may be allowed to post bail
during the pendency of an extradition proceeding.
However, for him to be allowed to post bail, still he must
prove that (1) once granted bail he will not be a flight risk
or a danger to the community; and (2) that there exists
special, humanitarian and compelling circumstances that
will justify the grant of bail to him, by a clear and
convincing evidence.
he reason why the Purganan ruling was re-

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examined is because of the modern trend in public
international law where an individual person is no longer
considered a mere object of international law but rather as
a subject thereof, and the primacy given to human rights,
among which is the right to liberty.
Juan Ponce Enrile v. Sandiganbayan (3 Div.), G.R. No. rd
213847, August 18, 2015, En Banc (Bersamin)
close reading of the ruling of the SC in this case

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allowing former Senator Juan Ponce Enrile to post bail
although he was charged of plunder, a non-bailable
offense, was because of the Olalia ruling.
In this case, former Senator Enrile was shown not to

be a flight risk or a danger to the community (his voluntary
surrender to the authorities and his record of respect for
court processes in earlier cases), and that there exist
special, humanitarian and compelling circumstances (his
advanced age, fragile state of health and medical
predicament that will require the services of doctors of his
choice) that will justify the grant of bail to him. After all,
the main purpose of bail is to assure the presence of an
accused during the trial of the case as required by the
court. Thus, the Court held:
“Nonetheless, in now granting Enrile’s petition for

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certiorari, the Court is guided by the earlier mentioned
principal purpose of bail, which is to guarantee the
appearance of the accused at the trial, or whenever
so required by the court. The Court is further mindful
of the Philippine’s responsibility in the international
community arising from the national commitment
under the Universal Declaration of Human Rights x x
x.
“This national commitment to uphold the

fundamental human rights as well as value the worth
and dignity of every person has authorized the grant
of bail not only to those charged in criminal
proceedings but also to extraditees upon a clear and
convincing showing: (1) that the detainee will not be a
flight risk or a danger to the community; and (2) that
there exist special, humanitarian and compelling
circumstances.
“In our view, his social and political standing and

his having immediately surrendered to the authorities
upon his having been charged in court indicate that
the risk of his flight or escape from this jurisdiction is
highly unlikely. His personal disposition from the
onset of his indictment for plunder, formal or
otherwise, has demonstrated his utter respect for the
legal processes of this country. We also do not ignore
that at an earlier time many years ago when he had
been charged with rebellion with murder and multiple
frustrated murder, he already evinced a similar
personal disposition of respect for the legal
processes, and was granted bail during the pendency
of his trial because he was not seen as a flight risk.
With his solid reputation in both his public and his
private lives, his long years of public service, and
history’s judgment of him being at stake, he should be
granted bail.
“The currently fragile state of Enrile’s health

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presents another compelling justification for his
admission to bail x x x.
“X x x
“Bail for the provisional liberty to the accused,

regardless of the crime charged, should be allowed
independently of the merits of the charge, provided
his continued incarceration is clearly shown to be
injurious to his health or to endanger his life. Indeed,
denying him bail despite imperiling hid health and life
would not serve the true objective of preventive
incarceration during the trial.
“Granting bail to Enrile on the foregoing reasons

is not unprecedented. X x x
“It is relevant to observe that granting provisional

liberty to Enrile will then enable him to have his
medical condition be properly addressed and better
attended to by competent physicians in the hospitals
of his choice. This will not only aid in his adequate
preparation of his defense but, more importantly, will
guarantee his appearance in court for the trial.
“On the other hand, to mark time in order to wait

for the trial to finish before a meaningful consideration
of the application for bail can be had is to defeat the
objective of bail, which is to entitle the accused to
provisional liberty pending the trial. There may be
circumstances decisive of the issue of bail x x x that
the courts can already consider in resolving the
application for bail without awaiting the trial to finish.
The Court thus balances the scales of justice by
protecting the interest of the People through ensuring
his personal appearance at the trial, and at the same
time realizing for him the guarantees of due process
as well as to be presumed innocent until proven
guilty.”

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The Right against Self-incrimination
I t bears emphasis, however, that under the above-

quoted provisions, what is actually proscribed is the use of
physical or moral compulsion to extort communication
from the accused-appellant and not the inclusion of his
body in evidence when it may be material. For instance,
substance emitted from the body of the accused may be
received as evidence in prosecution for acts of
lasciviousness (US v. Tan Teng, 23 Phil. 145 [1912]) and
morphine forced out of the mouth of the accused may also
be used as evidence against him (US v. Ong Siu Hong, 36
Phil. 735 [1917]). Consequently, although accused-
appellant insists that hair samples were forcibly taken from
him and submitted to the NBI for forensic examination, the
hair samples may be admitted in evidence against him, for
what is proscribed is the use of testimonial compulsion or
any evidence communicative in nature acquired from the
accused under duress. (People v. Rondero, 320 SCRA
383, 399-401, Dec. 9, 1999, En Banc [Per Curiam])
Does the right against self-incrimination extend to

administrative proceedings?
In Pascual v. Board of Medical Examiners (28 SCRA

344 [1969]), we held that the right against self-
incrimination under Section 17, Article III of the 1987
Constitution which is ordinarily available only in criminal
prosecutions, extends to administrative proceedings which
possess a criminal or penal aspect, such as an
administrative investigation of a licensed physician who is
charged with immorality, which could result in his loss of
the privilege to practice medicine if found guilty. The
Court, citing the earlier case of Cabal v. Kapunan (6 SCRA
1059 [1962]), pointed out that the revocation of one’s
license as a medical practitioner, is an even greater
deprivation than forfeiture of property. (Secretary of

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Justice v. Lantion, 322 SCRA 160, 184, Jan. 18, 2000,
En Banc [Melo])
May the Right against Self-incrimination be validly

invoked during Inquiries in Aid of Legislation?
[I]t has been held that “a congressional committee’s

right to inquire is ‘subject to all relevant limitations placed
by the Constitution on governmental action,’ including ‘the
relevant limitations of the Bill of Rights’.”
ne of the basic rights guaranteed by the Constitution

O
to an individual is the right against self-incrimination.
(Bengzon, Jr. v. Senate Blue Ribbon Committee, 203
SCRA 767, Nov. 20, 1991, En Banc [Padilla])
What are the two types of immunity statutes? Which

has broader scope of protection?
Our immunity statutes are of American origin. In the

United States, there are two types of statutory immunity
granted to a witness. They are the transactional immunity
and the use-and-derivative-use immunity. Transactional
immunity is broader in the scope of its protection. By its
grant, a witness can no longer be prosecuted for any
offense whatsoever arising out of the act or transaction. In
contrast, by the grant of use-and-derivative-use immunity,
a witness is only assured that his or her particular
testimony and evidence derived from it will not be used
against him or her in a subsequent prosecution. (Mapa,
Jr. v. Sandiganbayan, 231 SCRA 783, 797-798, April 26,
1994, En Banc [Puno])
Is the grant of immunity to an accused willing to

testify for the government a special privilege and,
therefore, must be strictly construed against the
accused?
[W]e reject respondent court’s ruling that the grant of

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section 5 immunity must be strictly construed against the
petitioners. It simplistically characterized the grant as a
special privilege, as if it was gifted by the government, ex
gratia. In taking this posture, it misread the raison d’ etre
and the long pedigree of the right against self-incrimination
vis-à-vis immunity statutes.
The days of inquisition brought about the most

despicable abuses against human rights. Not the least of
these abuses is the expert use of coerced confessions to
send to the guillotine even the guiltless. To guard against
the recurrence of this totalitarian method, the right against
self-incrimination was ensconced in the fundamental laws
of all civilized countries. Over the years, however, came
the need to assist government in its task of containing
crime for peace and order is a necessary matrix of public
welfare. To accommodate the need, the right against self-
incrimination was stripped of its absoluteness. Immunity
statutes in varying shapes were enacted which would
allow government to compel a witness to testify despite his
plea of the right against self-incrimination. To insulate
these statutes from the virus of unconstitutionality, a
witness is given what has come to be known as
transactional or a use-derivative-use immunity x x x. Quite
clearly, these immunity statutes are not a bonanza from
government. Those given the privilege of immunity paid a
high price for it – the surrender of their precious right to be
silent. Our hierarchy of values demands that the right
against self-incrimination and the right to be silent should
be accorded greater respect and protection. Laws that
tend to erode the force of these preeminent rights must
necessarily be given a liberal interpretation in favor of the
individual. The government has a right to solve crimes but
it must do it, rightly. (Mapa, Jr. v. Sandiganbayan, 231
SCRA 783, 805-806, April 26, 1994, En Banc [Puno])
The Right against Double Jeopardy

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The Two (2) Kinds of Double Jeopardy:
Our Bill of Rights deals with two (2) kinds of double

jeopardy. The first sentence of Clause 20, Section 1(now
Sec. 21), Article III of the Constitution ordains that “no
person shall be twice put in jeopardy of punishment for the
same offense.” The second sentence of said clause
provides that “if an act is punishable by a law and an
ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act.”
Thus, the first sentence prohibits double jeopardy of
punishment for the same offense whereas, the second
contemplates double jeopardy of punishment for the same
act. Under the first sentence, one may be twice put in
jeopardy of punishment of the same act, provided that he
is charged with different offenses, or the offense charged
in one case is not included in, or does not include, the
crime charged in the other case. The second sentence
applies, even if the offense charged are not the same,
owing to the fact that one constitutes a violation of an
ordinance and the other a violation of statute. If the two
charges are based on one and the same act, conviction or
acquittal under either the law or the ordinance shall bar a
prosecution under the other. Incidentally, such conviction
or acquittal is not indispensable to sustain the plea of
double jeopardy of punishment or the same offense. So
long as jeopardy has been attached under one of the
informations charging said offense, the defense may be
availed of in the other case involving the same offense,
even if there has been neither conviction nor acquittal in
either case.
Elsewhere stated, where the offense charged are
penalized either by different sections of the same statute
or by different statutes, the important inquiry relates to the
identity of offenses charged. The constitutional protection
against double jeopardy is available only where an identity
is shown to exist between the earlier and the subsequent
offenses charged. The question of identity or lack of
identity of offenses is addressed by examining the

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essential elements of each of the two offenses charged, as
such elements are set out in the respective legislative
definitions of the offenses involved. (People v. Quijada,
259 SCRA 191, July 24, 1996)
To substantiate a claim of double jeopardy, the

following must be proven:
(1) A first jeopardy must have attached prior to the

second; (2) the first jeopardy must have been validly
terminated; (3) the second jeopardy must be for the same
offense, or the second offense includes or is necessarily
included in the offense charged in the first information, or
is an attempt to commit the same or is a frustration
thereof.
Legal jeopardy attaches only: (1) upon a valid

indictment; (b) before a competent court; (c) after
arraignment; (d) when a valid plea has been entered; and
(e) the case was dismissed or otherwise terminated
without the express consent of the accused. (Cuison v.
CA, 289 SCRA 159, April 15, 1998 [Panganiban])
The Right against Ex Post Facto Law and Bill of Attainder
What is a bill of attainder? Is P.D. 1866 a bill of

attainder?
[T]he Court, in People v. Ferrer, defined a bill of

attainder as a legislative act which inflicts punishment on
individuals or members of a particular group without a
judicial trial. Essential to a bill of attainder are a
specification of certain individuals or a group of
individuals, the imposition of a punishment, penal or
otherwise, and the lack of judicial trial. This last element,
the total lack of court intervention in the finding of guilt and
the determination of the actual penalty to be imposed, is
the most essential. P.D. No. 1866 does not possess the

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elements of a bill of attainder. It does not seek to inflict
punishment without a judicial trial. Nowhere in the
measure is there a finding of guilt and an imposition of a
corresponding punishment. What the decree does is to
define the offense and provide for the penalty that may be
imposed, specifying the qualifying circumstances that
would aggravate the offense. There is no encroachment
on the power of the court to determine after due hearing
whether the prosecution has proved beyond reasonable
doubt that the offense of illegal possession of firearms has
been committed and that the qualifying circumstances
attached to it has been established also beyond
reasonable doubt as the Constitution and judicial
precedents require. (Misolas v. Panga, 181 SCRA 648,
659-660, Jan. 30, 1990, En Banc [Cortes])
What is an ex post facto law? Is R.A. No. 8249 an ex

post facto law?
Ex post facto law, generally, prohibits retrospectivity of

penal laws. R.A. 8249 is not a penal law. It is a
substantive law on jurisdiction which is not penal in
character. Penal laws are those acts of the Legislature
which prohibit certain acts and establish penalties for their
violations; or those that define crimes, treat of their nature,
and provide for their punishment. R.A. 7975, which
amended P.D. 1606 as regards the Sandiganbayan’s
jurisdiction, its mode of appeal and other procedural
matters, has been declared by the Court as not a penal
law, but clearly a procedural statute, i.e., one which
prescribes rules of procedure by which courts applying
laws of all kinds can properly administer justice. Not being
a penal law, the retroactive application of R.A. 8249
cannot be challenged as unconstitutional.
Petitioner’s and intervenors’ contention that their right

to a two-tiered appeal which they acquired under R.A.
7975 has been diluted by the enactment of R.A. 8249, is
incorrect. The same contention has already been rejected

Page 133 of 196
by the court several times considering that the right to
appeal is not a natural right but statutory in nature that can
be regulated by law. The mode of procedure provided for
in the statutory right of appeal is not included in the
prohibition against ex post facto laws. R.A. 8249 pertains
only to matters of procedure, and being merely an
amendatory statute it does not partake the nature of an ex
post facto law. It does not mete out a penalty and,
therefore, does not come within the prohibition. Moreover,
the law did not alter the rules of evidence or the mode of
trial. It has been ruled that adjective statutes may be
made applicable to actions pending and unresolved at the
time of their passage.
At any rate, R.A. 8249 has preserved the accused’s

right to appeal to the Supreme Court to review questions
of law. On the removal of the intermediate review of facts,
the Supreme Court still has the power of review to
determine if the presumption of innocence has been
convincingly overcome. (Panfilo M. Lacson v. The
Executive Secretary, et. al., G.R. No. 128096, Jan. 20,
1999 [Martinez])
CITIZENSHIP
Citizenship is not a matter of convenience. It is a

badge of identity that comes with attendant civil and
political rights accorded by the State to its citizens. It
likewise demands the concomitant duty to maintain
allegiance to one’s flag and country. (Casan Macode
Maquiling v. COMELEC, et al., G.R. No. 195649, April
16, 2013, En Banc [Sereno, CJ])
The Jus Sanguinis Principle on Citizenship
The Philippine law on citizenship adheres to the

principle of jus sanguinis. Thereunder, a child follows the
nationality or citizenship of the parents regardless of the

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place of his/her birth, as opposed to the doctrine of jus soli
which determines nationality or citizenship on the basis of
place of birth. (Valles v. COMELEC, 337 SCRA 543, Aug.
9, 2000, En Banc [Purisima])
Ways of acquiring Citizenship
There are two ways of acquiring citizenship: (1) by

birth, and (2) by naturalization. These ways of acquiring
citizenship correspond to the two kinds of citizens: the
natural-born citizen, and the naturalized citizen. A person
who at the time of his birth is a citizen of a particular
country, is a natural-born citizen thereof.
As defined in the Constitution, natural-born citizens

“are those citizens of the Philippines from birth without
having to perform any act to acquire or perfect his
Philippine citizenship.”
On the other hand, naturalized citizens are those who

have become Filipino citizens through naturalization,
generally under Commonwealth Act No. 473, otherwise
known as the Revised Naturalization Law, which repealed
the former Naturalization Law (Act No. 2927), and by
Republic Act No. 530. (Antonio Bengson III v. HRET,
G.R. No. 142840, May 7, 2001, En Banc [Kapunan])
Natural-born Citizens
Natural-born citizens are those who are citizens

of the Philippines from birth without having to perform
any act to acquire or perfect their Philippine
citizenship. Those who elect Philippine citizenship in
accordance with paragraph (3), Section 1 hereof shall
be deemed natural-born citizens. (Section 2, Article
IV, 1987 Constitution)
In general, there are only two (2) kinds of Filipino

citizens, i.e., natural-born and naturalized. There is no

Page 135 of 196
third category. If one did not have to undergo the
cumbersome process of naturalization, it means that he is
natural-born. (Antonio Bengson III v. HRET, G.R. No.
142840, May 7, 2001, En Banc [Kapunan])
Is a Foundling a Natural-born Citizen?
o deny full Filipino citizenship to all foundlings and

T
render them stateless just because there may be a
theoretical chance that one among the thousands of these
foundlings might be the child of not just one, but two,
foreigners is downright discriminatory, irrational, and
unjust. It just doesn’t make any sense. Given the
statistical certainty 99.9% - that any child born in the
Philippines would be a natural-born citizen, a decision
denying foundlings such status is effectively a denial of
their birthright. There is no reason why this Honorable
Court should use an improbable hypothetical to sacrifice
the fundamental political rights of an entire class of human
beings. Your Honor, constitutional interpretation and the
use of common sense are not separate disciplines.
s a matter of fact, foundlings are as a class, natural-

A
born citizens. While the 1935 Constitution’s enumeration
is silent as to foundlings, there is no restrictive language
which would definitely exclude foundlings either. Because
of silence and ambiguity in the numeration with respect to
foundlings, there is a need to examine the intent of the
framers. X x x
[ T]he deliberations of the 1934 Constitutional

Convention show that the framers intended foundlings to
be covered by the enumeration. X x x
Though the Rafols amendment was not carried out, it

was not because there was any objection to the notion
that persons of “unknown parentage” are not citizens but
only because their number was not enough to merit
specific mention. X x x

Page 136 of 196
I n other words, the constitutional silence is fully
explained in terms of linguistic efficiency and the
avoidance of redundancy. The policy is clear: it is to
recognize foundlings, as a class, as Filipinos, under Article
IV, Section 1(3) of the 1935 Constitution. This inclusive
policy is carried over into the 1973 and 1987 Constitutions.
Xxx
Domestic laws on adoption also support the principle

that foundlings are Filipinos. These laws do not provide
that adoption confers citizenship upon the adoptee.
Rather, the adoptee must be a Filipino in the first place to
be adopted. X x x
Foundlings are likewise citizens under international

law. Under the 1987 Constitution, an international law can
become part of the sphere of domestic law either by
transformation or incorporation. X x x
he common thread of the UDHR (Universal

T
Declaration of Human Rights), UNCRC (UN Convention
on the Rights of the Child) and ICCPR (International
Covenant on Civil and Political Rights) is to obligate the
Philippines to grant nationality from birth and ensure that
no child is stateless. This grant of nationality must be at
the time of birth, and it cannot be accomplished by the
application of our present naturalization laws,
Commonwealth Act No. 473, as amended, and R.A. No.
9139, both of which require the applicant to be at least
eighteen (18) years old.
he principles found in two conventions, while yet

T
ungratified by the Philippines, are generally accepted
principles of international law. The first is Article 14 of the
1930 Hague Convention on Certain Questions Relating to
the Conflict of Nationality Laws under which a foundling is
presumed to have the “nationality of the country of birth,” x
x x.

Page 137 of 196
foundling is, until the contrary is proved, presumed
A
to have been born on the territory of the State in which it
was found.
he second is the principle that a foundling is

T
presumed born of citizens of the country where he is
found, contained in Article 2 of the 1961 United Nations
Convention on the Reduction of Statelessness x x x.
X x x
I n sum, all of the international law conventions and

instruments on the matter of nationality of foundlings were
designed to address the plight of a defenseless class
which suffers from a misfortune not of their making. We
cannot be restrictive as to their application if we are a
country which calls itself civilized and a member of the
community of nations. X x x (Mary Grace Natividad S.
Poe-Llamanzares v. COMELEC, G R. No. 221697,
March 8, 2016, En Banc [Perez])
Loss or Reacquisition of Philippine Citizenship
Philippine citizenship may be lost or reacquired in

the manner provided by law (Section 3, Article IV,
1987 Constitution)
here are three (3) ways by which Philippine

T
citizenship may be reacquired, namely: (1) by
naturalization; (2) by repatriation; and (3) by direct act of
Congress.
The Effect of Marriage
Citizens of the Philippines who marry aliens shall

retain their citizenship, unless by their act or omission
they are deemed, under the law, to have renounced it.
(Section 4, Article IV, 1987 Constitution)

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Dual Citizenship and Dual Allegiance
Dual allegiance of citizens is inimical to the

national interest and shall be dealt with by law.
(Section 5, Article IV, 1987 Constitution)
his provision is not self-executing. The word

T
employed by Section 5 is “shall.” The law referred to is a
future law.
Dual Citizenship distinguished from Dual Allegiance.
Dual citizenship arises when, as a result of the

concurrent application of the different laws of two or more
states, a person is simultaneously considered a national
by the said states. For instance, such a situation may
arise when a person whose parents are citizens of a state
which adheres to the principle of jus sanguinis is born in a
state which follows the doctrine of jus soli. Such a person,
ipso facto and without any voluntary act on his part, is
concurrently considered a citizen of both states.
Dual allegiance, on the other hand, refers to a

situation in which a person simultaneously owes, by some
positive act, loyalty to two or more states. While dual
citizenship is involuntary, dual allegiance is the result of an
individual’s volition. (Mercado v. Manzano, 307 SCRA
630, May 26, 1999, En Banc [Mendoza])
What is the main concern of Section 5, Article IV, 1987 Constitution, on citizenship?
Consequently, are persons with mere dual citizenship disqualified to run for elective
local positions under Section 40(d) of the Local Government Code?
In including Section 5 in Article IV on citizenship, the

concern of the Constitutional Commission was not with
dual citizens per se but with naturalized citizens who
maintain their allegiance to their countries of origin even
after their naturalization. Hence, the phrase “dual
citizenship” in R.A. No. 7160, Section 40(d) (Local

Page 139 of 196
Government Code) must be understood as referring to
“dual allegiance.” Consequently, persons with mere dual
citizenship do not fall under this disqualification. Unlike
those with dual allegiance, who must be subject to strict
process with respect to the termination of their status, for
candidates with dual citizenship, it should suffice if, upon
the filing of their certificate of candidacy, they elect
Philippine citizenship to terminate their status as persons
with dual citizenship considering that their condition is the
unavoidable consequence of conflicting laws of different
states.
By electing Philippine citizenship, such candidates at

the same time forswear allegiance to the other country of
which they are also citizens and thereby terminate their
status as dual citizens. It may be that, from the point of
view of the foreign state and of its laws, such an individual
has not effectively renounced his foreign citizenship. That
is of no moment. (Mercado v. Manzano, G.R. No.
135083, 307 SCRA 630, May 26, 1999 [Mendoza])
Instances when a citizen of the Philippines may

possess dual citizenship considering the citizenship
clause (Article IV) of the Constitution.
1) Those born of Filipino fathers and/or mothers in

foreign countries which follow the principle of jus
soli;
2) Those born in the Philippines of Filipino mothers
and alien fathers if by the laws of their father’s
country such children are citizens of that country;
3) Those who marry aliens if by the laws of the latter’s
country the former are considered citizens, unless
by their act or omission they are deemed to have
renounced Philippine citizenship. (Mercado v.
Manzano, G.R. No. 135083, 307 SCRA 630, May
26, 1999 [Mendoza])
Republic Act No. 9225 (The Citizenship Retention and

Page 140 of 196
Reacquisition Act of 2003)

Sometimes, this law has been referred to as the dual
citizenship law.
he law applies to: (1) former natural-born citizens of

T
the Philippines who have already become citizens of a
foreign country through naturalization; and (2) natural-born
citizens of the Philippines who may wish to become a
citizen of a foreign country through naturalization after the
effectivity of this Act.
I n both cases, they are given the opportunity to either

reacquire (reacquisition) or retain (retention) their
Philippine citizenship. Thus, in effect, they will possess
dual citizenship.
Casan Macode Maquiling v. COMELEC, et al., G.R. No.

195649, April 16, 2013, En Banc (Sereno, CJ)

When after renouncing his American citizenship upon
his filing of certificate of candidacy for mayor, it was
established that he travelled several times to the US using
his American passport, that was an effective recantation of
his renunciation of his foreign citizenship. Thus, he
reverted to his prior status as a person having dual
citizenship and, therefore, disqualified to run for mayor
pursuant to Sec. 40 (d) of the Local Government Code
(R.A. No. 7061).
Held:
ection 5(2) of The Citizenship Retention and Re-

S
acquisition Act of 2003 provides:
Those who retain or re-acquire Philippine

citizenship under this Act shall enjoy full civil and
political rights and be subject to all attendant liabilities
and responsibilities under existing laws of the

Page 141 of 196
Philippines and the following conditions:
(2) Those seeking elective public office in the

Philippines shall meet the qualifications for holding
such public office as required by the Constitution and
existing laws and, at the time of the filing of the
certificate of candidacy, make a personal and sworn
renunciation of any and all foreign citizenship before
any public officer authorized to administer an oath. X
xx

Rommel Arnado took all the necessary steps to
qualify to run for a public office. He took the Oath of
Allegiance and renounced his foreign citizenship. There is
no question that after performing these twin requirements
required under Section 5(2) of R.A. Act No. 9225 or the
Citizenship Retention and Re-acquisition Act of 2003, he
became eligible to run for public office.

Indeed, Arnado took the Oath of Allegiance not just
only once but twice. By taking the Oath of Allegiance to
the Republic, Arnado re-acquired his Philippine
citizenship. At the time, however, he likewise possessed
American citizenship. Arnado had therefore become a
dual citizen.
After reacquiring his Philippine citizenship, Arnado

renounced his American citizenship by executing an
Affidavit of Renunciation, thus completing the
requirements for eligibility to run for public office.

By renouncing his foreign citizenship, he was deemed
to be solely a Filipino citizen, regardless of the effect of
such renunciation under the laws of the foreign country.

However, this legal presumption does not operate
permanently and is open to attack when, after renouncing
the foreign citizenship, the citizen performs positive acts
showing his continued possession of a foreign citizenship.

Page 142 of 196

Arnado himself subjected the issue of his citizenship
to attack when, after renouncing his foreign citizenship, he
continued to use his US passport to travel in and out of the
country. The pivotal question to determine is whether he
was solely and exclusively a Filipino citizen at the time he
filed his certificate of candidacy, thereby rendering him
eligible to run for public office.

The renunciation of foreign citizenship is not a hollow
oath that can simply be professed at any time, only to be
violated the next day. It requires an absolute and
perpetual renunciation of the foreign citizenship and a full
divestment of all civil and political rights granted by the
foreign country which granted the citizenship.

Xxx

While the act of using a foreign passport is not one of
the acts enumerated in Commonwealth Act No. 63
constituting renunciation and loss of Philippine citizenship,
it is nevertheless an act which repudiates the very oath of
renunciation required for a former Filipino citizen who is
also a citizen of another country to be qualified to run for a
local elective position.

Xxx

We agree with the COMELEC En Banc that such act
of using a foreign passport does not divest Arnado of his
Filipino citizenship, which he acquired by repatriation.
However, by representing himself as an American citizen,
Arnado voluntarily and effectively reverted to his earlier
status as a dual citizen. Such reversion was not
retroactive; it took place the instant Arnado represented
himself as an American citizen by using his US passport.

This act of using a foreign passport after renouncing
one’s foreign citizenship is fatal to Arnado’s bid for public

Page 143 of 196
office, as it effectively imposed on him a disqualification to
run for an elective local position.

Arnado’s category of dual citizenship is that by which
foreign citizenship is acquired through a positive act of
applying for naturalization. This is distinct from those
considered dual citizens by virtue of birth, who are not
required by law to take the oath of renunciation as the
mere filing of the certificate of candidacy already caries
with it an implied renunciation of foreign citizenship. Dual
citizens by naturalization, on the other hand, are required
to take not only the Oath of Allegiance to the Republic of
the Philippines but also to personally renounce foreign
citizenship in order to qualify as a candidate for public
office.

By the time he filed his certificate of candidacy
Arnado was a dual citizen enjoying the rights and
privileges of Filipino and American citizenships. He was
qualified to vote, but by express disqualification under
Section 40(d) of the Local Government Code, he was not
qualified to run for a local elective position.

Xxx

The citizenship requirement for elective public office is
a continuing one. It must be possessed not just at the
time of the renunciation of the foreign citizenship but
continuously. Any act which violates the oath of
renunciation opens the citizenship issue to attack.

We agree with the pronouncement of the COMELEC
First Division that “Arnado’s act of continuously using his
US passport effectively negated his Affidavit of
Renunciation.” This does not mean that he failed to
comply with the twin requirements under R.A. No. 9225,
for he in fact did. It was after complying with the
requirements that he performed positive acts which
effectively disqualified him from running for an elective

Page 144 of 196
public office pursuant to Section 40(d) of the Local
Government Code of 1991.

Xxx

Besides, Arnado’s subsequent use of his Philippine
passport does not correct the fact that after he renounced
his foreign citizenship and prior to filing his certificate of
candidacy, he used his US passport. In the same way that
the use of his foreign passport does not undo his Oath of
Renunciation, his subsequent use of his Philippine
passport does not undo his earlier use of his US passport.

Xxx
We therefore hold that Arnado, by using his US

passport after renouncing his American citizenship, has
recanted the same Oath of Renunciation he took. Section
40(d) of the Local Government Code applies to his
situation. He is disqualified not only from holding the
public office but even from becoming a candidate in the
May 2011 elections.
Naturalization
Naturalization signifies the act of formally adopting a

foreigner into the political body of a nation by clothing him
or her with the privileges of a citizen. (Edison So v.
Republic of the Philippines, G.R. No. 170603, January
29, 2007, 3 Div., [Callejo, Sr.])
rd
Ways by which an Alien may become a Citizen by

Naturalization
Under current and existing laws, there are three ways

by which an alien may become a citizen by naturalization:
(a) administrative naturalization pursuant to R.A. No.
9139; (b) judicial naturalization pursuant to C.A. No. 473,
as amended; and (c) legislative naturalization in the form

Page 145 of 196
of a law enacted by Congress bestowing Philippine
citizenship to an alien. (Edison So v. Republic of the
Philippines, G.R. No. 170603, January 29, 2007, 3 Div., rd
[Callejo, Sr.])
Republic Act No. 9139 (Providing for Administrative

Naturalization of an Alien)
R.A. No. 9139 was enacted as a remedial measure

intended to make the process of acquiring Philippine
citizenship less tedious, less technical and more
encouraging. It likewise addresses the concerns of
degree holders who, by reason of lack of citizenship
requirement, cannot practice their profession, thus
promoting “brain gain” for the Philippines.
May All Aliens Avail of the Benefits of Administrative

Naturalization under R.A. No. 9139?
R.A. No. 9139 may be availed of only by native-born

aliens who lived here in the Philippines all their lives, who
never saw any other country and all along thought that
they were Filipinos; who have demonstrated love and
loyalty to the Philippines and affinity to the customs and
traditions of the Filipino people. To reiterate, the intention
of the legislature in enacting R.A. No. 9139 was to make
the process of acquiring Philippine citizenship less
tedious, less technical and more encouraging which is
administrative rather than judicial in nature. What the
legislature had in mind was merely to prescribe another
mode of acquiring Philippine citizenship which may be
availed of by native born aliens. The only implication is
that, a native born alien has the choice to apply for judicial
or administrative naturalization, subject to the prescribed
qualifications and disqualifications. (Edison So v.
Republic of the Philippines, G.R. No. 170603, January
29, 2007, 3 Div., [Callejo, Sr.]
rd

Page 146 of 196
ADMINISTRATIVE LAW
The Doctrine of Primary Jurisdiction or Prior Resort
The Doctrine of Exhaustion of Administrative

Remedies
nder the doctrine of exhaustion of administrative

U
remedies, before a party is allowed to seek the
intervention of the court, one should have availed first of
all the means of administrative processes available. If
resort to a remedy within the administrative machinery can
still be made by giving the administrative officer concerned
every opportunity to decide on a matter that comes within
his jurisdiction, then such remedy should be exhausted
first before the court’s judicial power can be sought. For
reasons of comity and convenience, courts of justice shy
away from dispute until the system of administrative
redress has been completed and complied with, so as to
give the administrative agency concerned every
opportunity to correct its error and dispose of the case. X
x x. (Saturnino C. Ocampo, et al. v. Rear Admiral
Ernesto C. Enriquez, et al., G.R. No. 225973, November
8, 2016, En Banc [Peralta])
THE LAW OF PUBLIC OFFICERS
Public Office is a Public Trust
onchita Carpio-Morales v. Court of Appeals (6 Div.),

C th
G.R. Nos. 217126-27, November 10, 2015 (Perlas-

Bernabe)
Nature of Appointment as Discretionary
Flores v. Drilon
The Powers of the Ombudsman

Page 147 of 196
Conchita Carpio-Morales v. Court of Appeals (6 Div.), th
G.R. Nos. 217126-27, November 10, 2015 (Perlas-

Bernabe)
The Ombudsman has Administrative Disciplinary

Authority over all Public Officers and Employees
The Office of the Ombudsman shall have

disciplinary authority over all elective and appointive
officials of the Government and its subdivisions,
instrumentalities and agencies, including Members of
the Cabinet, local government, government-owned or
controlled corporations and their subsidiaries, except
over officials who may be removed only by
impeachment or over Members of Congress, and the
Judiciary. (Sec. 21, R.A. No. 6770)
In the exercise of its Administrative Jurisdiction, the

Ombudsman may impose Preventive Suspension
The Ombudsman or his Deputy may preventively

suspend any officer or employee under his authority
pending an investigation, if in his judgment the
evidence of guilt is strong, and (a) the charge against
such officer or employee involves dishonesty,
oppression or grave misconduct or neglect in the
performance of duty; (b) the charges would warrant
removal from the service; or (c) the respondent’s
continued stay in office may prejudice the case filed
against him.
The preventive suspension shall continue until

the case is terminated by the Office of the
Ombudsman but not more than six (6) month, except
when the delay in the disposition of the case by the
Office of the Ombudsman is due to the fault,
negligence or petition of the respondent, in which
case the period of such delay shall not be counted in

Page 148 of 196
computing the period of suspension herein provided.
(Sec. 24, R.A. No. 6770)
No Writ of Injunction shall be issued by any Court to

delay an Investigation being conducted by the
Ombudsman
No writ of injunction shall be issued by any court

to delay an investigation being conducted by the
Ombudsman under this Act, unless there is a prima
facie evidence that the subject matter of the
investigation is outside the jurisdiction of the Office of
the Ombudsman.
No court shall hear any appeal or application for

remedy against the decision or findings of the
Ombudsman, except the Supreme Court, on pure
question of law. (Sec. 14, R.A. No. 6770)
Caveat:
The second paragraph of Section 14 of Republic Act

No. 6770 is declared UNCONSTITUTIONAL, while the
policy against the issuance of provisional injunctive writs
by courts other than the Supreme Court to enjoin an
investigation conducted by the Office of the Ombudsman
under the first paragraph of the said provision is declared
INEFFECTIVE until the Court adopts the same as part of
the rules of procedure through an administrative circular
duly issued therefor. (Conchita Carpio Morales v. Court
of Appeals [Sixth Division], GR Nos. 217126-27,
November 10, 2015, En Banc [Perlas-Bernabe]).
Effectivity and Finality of Decisions of Ombudsman
All provisionary orders of the Office of the

Ombudsman are immediately effective and executory.

Xxx

Page 149 of 196
In all administrative disciplinary cases, orders,
directives, or decisions of the Office of the
Ombudsman may be appealed to the Supreme Court
by filing a petition for certiorari within ten (10) days
from receipt of the written notice of the order, directive
or decision or denial of the motion for reconsideration
in accordance with Rule 45 of the Rules of Court.
(This provision was declared unconstitutional by
the Supreme Court in Fabian v. Desierto, 356 Phil.
787 [1998], as it contravened Section 30, Article VI
of the Constitution. In effect the provision
increased the appellate jurisdiction of the
Supreme Court without its consent under that
provision. Henceforth, decisions of the
Ombudsman in administrative cases should be
filed with the Court of Appeals under that ruling.)
The Law on Nepotism
Under the definition of nepotism, one is guilty of

nepotism if an appointment is issued in favor of a relative
within the third civil degree of consanguinity or affinity of
any of the following:
a) appointing authority;
b) recommending authority;
c) chief of the bureau or office; and
d) person exercising immediate supervision over the
appointee.
Clearly, there are four situations covered. In the last

two mentioned situations, it is immaterial who the
appointing or recommending authority is. To constitute a
violation of the law, it suffices that an appointment is
extended or issued in favor of a relative within the third
civil degree of consanguinity or affinity of the chief of the
bureau or office, or the person exercising immediate
supervision over the appointee. (CSC v. Pedro O.

Page 150 of 196
Dacoycoy, G.R. No. 135805, April 29, 1999, En Banc
[Pardo])
What are the exemptions from the operation of the

rules on nepotism?
The following are exempted from the operation of the

rules on nepotism: (a) persons employed in a confidential
capacity, (b) teachers, (c) physicians, and (d) members of
the Armed Forces of the Philippines.

The rules on nepotism shall likewise not be applicable
to the case of a member of any family who, after his or her
appointment to any position in an office or bureau,
contracts marriage with someone in the same office or
bureau, in which event the employment or retention
therein of both husband and wife may be allowed. (Sec.
59, Chap. 7, Subtitle A, Title I, Bk. V, E.O. No. 292)
Preventive Suspension
J urisprudential law (Reyes v. Delim, 368 SCRA 323, 333

[2001]; Yabut v. Office of the Ombudsman, 233 SCRA 310, 316-
317 [1994]; Beja, Sr. v. Court of Appeals, 207 SCRA 689, 694
[1992]) establishes a clear-cut distinction between suspension as
preventive measure and suspension as penalty. The distinction,
by considering the purpose aspect of the suspensions, is readily
cognizable as they have different ends to be achieved.
reventive suspension is merely a preventive measure, a

P
preliminary step in an administrative investigation. The purpose
of the suspension order is to prevent the accused from using his
position and the powers and prerogatives of his office to
influence potential witnesses or tamper with records which may
be vital in the prosecution of the case against him. If after such
investigation, the charge is established and the person
investigated is found guilty of acts warranting his suspension or
removal, then he is suspended, removed or dismissed. This is
the penalty.

Page 151 of 196
hat preventive suspension is not a penalty is in fact
T
explicitly provided by Section 24 of Rule XIV of the Omnibus
Rules Implementing Book V of the Administrative Code of
1987 (Executive Order No. 292) and other Pertinent Civil
Service Laws.

Xxx

Clearly, service of the preventive suspension cannot be
credited as service of penalty. To rule otherwise is to disregard
above-quoted Sections 24 and 25 of the Administrative Code of
1987 and render nugatory the substantial distinction between,
and purposes of imposing preventive suspension and suspension
as penalty.

Xxx

En passant, neither may the concept of crediting, criminal
law, preventive imprisonment in the service of a convict’s term
of imprisonment (Article 29 of the Revised Penal Code) be
applied to preventive suspension during investigation in
administrative law in the service of a respondent’s final penalty
of suspension. For not only are they distinct in the objective or
purpose, or in their nature as preventive imprisonment involves
restriction of personal liberties which is not the case with
preventive suspension; the respective laws covering them are
explicit. (Quimbo v. Gervacio, 466 SCRA 277, Aug. 9, 2005, 3 rd
Div. [Carpio-Morales])
The Doctrine of Condonation
A public official cannot be removed for administrative misconduct committed during a

prior term, since his re-election to office operates as a condonation of the officer’s previous
misconduct to the extent of cutting off the right to remove him therefor. The foregoing rule,
however, finds no application to criminal cases pending against petitioner. (Aguinaldo v.
Santos, 212 SCRA 768, 773 [1992])
Reason for the Doctrine
The rationale for this holding is that when the electorate put him back into office, it is
presumed that it did so with full knowledge of his life and character, including his past
misconduct. If, armed with such knowledge, it still reelects him, then such reelection is

Page 152 of 196
considered a condonation of his past misdeeds. (Mayor Alvin B. Garcia v. Hon. Arturo C.
Mojica, et al., G.R. No. 139043, Sept. 10, 1999 [Quisumbing])
Caveat:

This Doctrine of Condonation was abandoned by the Supreme Court in the more recent
case of Conchita Carpio Morales v. Court of Appeals (Sixth Division), GR Nos. 217126-27,
November 10, 2015, En Banc (Perlas-Bernabe). However, the abandonment of the doctrine
was given prospective application only.
The Origin of the Condonation Doctrine
enerally speaking, condonation has been defined as

G
“[a] victim’s express or implied forgiveness of an offense,
[especially] by treating the offender as if there had
been no offense.”
he condonation doctrine – which connotes this same

T
sense of complete extinguishment of liability x x x - is not
based on statutory law. It is a jurisprudential creation that
originated from the 1959 case of Pascual v. Hon.
Provincial Board of Nueva Ecija (106 Phil. 466 [1959]),
which was therefore decided under the 1935
Constitution.
X x x
As there was no legal precedent on the issue at

that time, the Court, in Pascual, resorted to American
authorities and “found that cases on the matter are
conflicting due in part, probably, to differences in statutes
and constitutional provisions, and also, in part, to a
divergence of views with respect to the question of
whether the subsequent election or appointment condones
the prior misconduct.” Without going into the variables
of these conflicting views and cases, it proceeded to
state that:
The weight of authorities x x x seems to incline

toward the rule denying the right to remove from
office because of misconduct during a prior term,

Page 153 of 196
to which we fully subscribe.

The conclusion is at once problematic since the Court
has now uncovered that there is really no established
weight of authority in the United States (US) favoring the
doctrine of condonation, which, in the words of Pascual,
theorizes that an official’s re-election denies the right to
remove him from office due to a misconduct during a prior
term. In fact, x x x at least seventeen (17) states in the US
have abandoned the condonation doctrine. X x x

Xxx

Overall, the foregoing data clearly contravenes the
preliminary conclusion in Pascual that there is a “weight of
authority” in the US on the condonation doctrine. In fact,
without any cogent exegesis to show that Pascual had
accounted for the numerous factors relevant to the debate
on condonation, an outright adoption of the doctrine in this
jurisdiction would not have been proper.

At any rate, these US cases are only of persuasive
value in the process of this Court’s decision-making.
“[They] are not relied upon as precedents, but as guides
of interpretation.” Therefore, the ultimate analysis is on
whether or not the condonation doctrine, as espoused in
Pascual, and carried over in numerous cases after, can be
held up against prevailing legal norms. Note that the
doctrine of stare decisis does not preclude this Court from
revisiting existing doctrine. X x x

In this case, the Court agrees x x x that since the time
Pascual was decided, the legal landscape has radically
shifted. Again, Pascual was a 1959 case decided under
the 1935 Constitution, which dated provisions do not
reflect the experience of the Filipino people under the
1973 and 1987 Constitutions. Therefore, the plain
difference in setting, including, of course, the sheer impact
of the condonation doctrine on public accountability, calls

Page 154 of 196
for Pascual’s judicious re-examination.
Testing the Condonation Doctrine

Pascual’s ratio decidendi may be dissected into three
(3) parts:
irst, the penalty of removal may not be extended

F
beyond the term in which the public officer was elected for
each term is separate and distinct x x x.

Second, an elective official’s re-election serves as a
condonation of previous misconduct, thereby cutting the
right to remove him therefor; and
hird, courts may not deprive the electorate, who are

T
ssumed to have known the life and character of
candidates, of their right to elect officers x x x.

Xxx

The Court, citing Civil Service Commission v. Sojor
(577 Phil. 52, 72 [2008]), also clarified that the
condonation doctrine would not apply to appointive
officials since, as to them, there is no sovereign will to
disenfranchise x x x.

Xxx
thorough review of the cases post-1987 x x x would

A
show that the basis for condonation under the prevailing
constitutional and statutory framework was never
accounted for. What remains apparent from the text of
these cases is that the basis for condonation, as
jurisprudential doctrine, was – and still remains – the
above-cited postulates of Pascual, which was lifted from
rulings of US courts where condonation was amply
supported by their own state laws. With respect to its
applicability to administrative cases, the core premise of

Page 155 of 196
condonation - that is, an elective official’s re-election cuts
off the right to remove him for an administrative offense
committed during a prior term – was adopted hook, line,
and sinker in our jurisprudence largely because the
legality of that doctrine was never tested against existing
legal norms. As in the US, the propriety of condonation is
– as it should be – dependent on the legal foundation of
the adjudicating jurisdiction. Hence, the Court undertakes
an examination of our current laws in order to determine if
there is legal basis for the continued application of the
doctrine of condonation.
X x x

As earlier intimated, Pascual was a decision
promulgated in 1959. Therefore, it was decided within the
context of the 1935 Constitution which was silent with
respect to public accountability, or of the nature of public
office being a public trust. The provision in the 1935
Constitution that comes closest in dealing with public office
is Section 2, Article II which states that “[t]he defense of
the State is a prime duty of government, and in the
fulfillment of this duty all citizens may be required by law to
render personal military or civil service.” Perhaps owing to
the 1935 Constitution’s silence on public accountability,
and considering the dearth of jurisprudential rulings on the
matter, as well as the variance in the policy
considerations, there was no glaring objection confronting
the Pascual Court in adopting the condonation doctrine
that originated from select US cases existing at that time.

With the advent of the 1973 Constitution, the
approach in dealing with public officers underwent a
significant change. The new charter introduced an entire
article on accountability of public officers, found in Article
XIII. Section 1 thereof positively recognized,
acknowledged, and declared that “[p]ublic office is a
public trust.” Accordingly, “[p]ublic officers and
employees shall serve with the highest degree of

Page 156 of 196
responsibility, integrity, loyalty and efficiency, and
shall remain accountable to the people.”

After the turbulent decades of Martial Law rule, the
Filipino People have framed and adopted the 1987
Constitution, which sets forth in the Declaration of
Principles and State Policies in Article II that “[t]he State
shall maintain honesty and integrity in the public
service and take positive and effective measures
against graft and corruption.” Learning how unbridled
power could corrupt public servants under the regime of a
dictator, the Framers put primacy on the integrity of the
public service by declaring it as a constitutional principle
and a State policy. More significantly, the 1987
Constitution strengthened and solidified what have been
first proclaimed in the 1973 Constitution by commanding
public officers to be accountable to the people at all
times.

Xxx

The same mandate is found in the Revised
Administrative Code under the section of the Civil Service
Commission, and also, in the Code of Conduct and Ethical
Standards for Public Officials and Employees.
For local elective officials like Binay, Jr., the grounds

to discipline, suspend or remove an elective local
official from office are stated in Section 60 of Republic
Act No. 7160, otherwise known as the “Local Government
Code of 1991” (LGC), which was approved on October 10,
1991, and took effect on January 1, 1992.
Xxx
Related to this provision is Section 40 (b) of the LGC

which states that those removed from office as a result
of an administrative case shall be disqualified from
running for any elective local position.

Page 157 of 196
In the same sense, Section 52 (a) of the RRACCS
provides that the penalty of dismissal from service
carries the accessory penalty of perpetual
disqualification from holding public office.
In contrast, Section 66 (b) of the LGC states that the

penalty of suspension shall not exceed the unexpired term
of the elective local official nor constitute a bar to his
candidacy for as long as he meets the qualifications
required for the office. Note, however, that the provision
only pertains to the duration of the penalty and its effect on
the official’s candidacy. Nothing therein states that the
administrative liability therefor is extinguished by the
fact of re-election x x x.
Reading the 1987 Constitution together with the

above-cited legal provisions now leads this Court to the
conclusion that the doctrine of condonation is actually
bereft of legal bases.
To begin with, the concept of public office is a

public trust and the corollary requirement of
accountability to the people at all times, as mandated
under the 1987 Constitution, is plainly inconsistent with
the idea that an elective local official’s administrative
liability for a misconduct committed during a prior term can
be wiped off by the fact that he was elected to a second
term of office, or even another elective post. Election is
not a mode of condoning an administrative offense,
and there is simply no constitutional or statutory basis in
our jurisdiction to support the notion that an official elected
for a different term is fully absolved of any administrative
liability arising from an offense done during a prior term.
In this jurisdiction, liability arising from administrative
offenses may be condoned by the President in light of
Section 19, Article VII of the 1987 Constitution which was
interpreted in Llamas v. Orbos (279 Phil. 920, 937 [1991])
to apply to administrative offenses x x x.

Page 158 of 196
Also, it cannot be inferred from Section 60 of the LGC
that the grounds for discipline enumerated therein cannot
anymore be invoked against an elective local official to
hold him administratively liable once he is re-elected to
office. In fact, Section 40 (b) of the LGC precludes
condonation since in the first place, an elective local
official who is meted with the penalty of removal could not
be re-elected to an elective local position due to a direct
disqualification from running for such post. In similar
regard, Section 52 (a) of the RRACCS imposes penalty of
perpetual disqualification from holding public office as an
accessory to the penalty of dismissal from service.
To compare, some of the cases adopted in Pascual

were decided by US State jurisdictions wherein the
doctrine of condonation of administrative liability was
supported by either a constitutional or statutory provision
stating, in effect, that an officer cannot be removed by a
misconduct committed during a previous term, or that the
disqualification to hold the office does not extend
beyond the term in which the official’s delinquency
occurred. X x x. Hence, owing to either their variance or
inapplicability, none of these cases can be used as basis
for the continued adoption of the condonation doctrine
under our existing laws.

At best, Section 66 (b) of the LGC prohibits the
enforcement of the penalty of suspension beyond the
unexpired portion of the elective local official’s term, and
likewise allows said official to still run for re-election. X x
x. However, as previously stated, nothing in Section 66
(b) states that the elective local official’s administrative
liability is extinguished by the fact of re-election. Thus, at
all events, no legal provision actually supports the theory
that the liability is condoned.

Relatedly, it should be clarified that there is no truth in
Pascual’s postulation that the courts would be depriving

Page 159 of 196
the electorate of their right to elect their officers if
condonation were not to be sanctioned. In political law,
election pertains to the process by which a particular
constituency chooses an individual to hold a public office.
In this jurisdiction, there is, again, no legal basis to
conclude that election automatically implies condonation.
Neither is there any legal basis to say that every
democratic and republican state has an inherent regime of
condonation. If condonation of an elective official’s
administrative liability would perhaps be allowed in this
jurisdiction, then the same should have been provided by
law under our governing legal mechanisms. May it be at
the time of Pascual or at present, by no means has it been
shown that such a law, whether in a constitutional or
statutory provision, exists. Therefore, inferring from this
manifest absence, it cannot be said that the electorate’s
will has been abdicated.

Equally infirm is Pascual’s proposition that the
electorate, when re-electing a local official, are assumed to
have done so with knowledge of his life and character, and
that they disregarded or forgave his faults or misconduct, if
he had been guilty of any. Suffice it to state that no such
presumption exists in any statute or procedural rule.
Besides, it is contrary to human experience that the
electorate would have full knowledge of a public official’s
misdeeds. The Ombudsman correctly points out the
reality that most corrupt acts by public officers are
shrouded in secrecy, and concealed from the public.
Misconduct committed by an elective public official is
easily covered up, and is almost always unknown to
the electorate when they cast their votes. At a
conceptual level, condonation presupposes that the
condoner has actual knowledge of what is to be
condoned. Thus, there could be no condonation of an
act that is unknown. X x x.

That being said, this Court simply finds no legal
authority to sustain the condonation doctrine in this

Page 160 of 196
jurisdiction. As can be seen from this discourse, it was a
doctrine from one class of US rulings way back in 1959
and thus out of touch from – and now rendered obsolete
by – the current legal regime. In consequence, it is high
time for this Court to abandon the condonation doctrine
that originated from Pascual, and affirmed in the cases
following the same, such as Aguinaldo, Salalima, Mayor
Garcia, and Governor Garcia, Jr. which were all relied
upon by the CA.

It should, however, be clarified that this Court’s
abandonment of the condonation doctrine should be
prospective in application for the reason that judicial
decisions applying or interpreting the laws or the
Constitution, until reversed, shall form part of the
Philippine legal system. Unto this Court devolves the sole
authority to interpret what the Constitution means, and all
persons are bound to follow its interpretation. X x x

Hence, while the future may ultimately uncover a
doctrine’s error, it should be, as a general rule,
recognized as “good law” prior to its abandonment.
Consequently, the people’s reliance thereupon should be
respected. X x x

Indeed, the lessons of history teach us that
institutions can greatly benefit from hindsight and rectify its
ensuing course. Thus, while it is truly perplexing to think
that a doctrine which is barren of legal anchorage was
able to endure in our jurisprudence for a considerable
length of time, this Court, under a new membership, takes
up the cudgels and now abandons the condonation
doctrine. (Conchita Carpio Morales v. Court of Appeals
[Sixth Division], GR Nos. 217126-27, November 10,
2015, En Banc [Perlas-Bernabe])
ELECTION LAWS

Page 161 of 196
Suffrage may be exercised by all citizens of the
Philippines not otherwise disqualified by law, who are
at least eighteen years of age, and who shall have
resided in the Philippines for at least one year and in
the place wherein they propose to vote for at least six
months preceding the election. No literacy, property,
or other substantive requirement shall be imposed on
the exercise of suffrage. (Section 1, Article V, 1987
Constitution)
The Right of Suffrage
Kabataan Party-list, et al., v. Commission on

Elections, G.R. No. 221318, December 16, 2015, En
Banc (Perlas-Bernabe)
Held:
“With these considerations in mind, petitioners’ claim

that biometrics validation imposed under RA 10367, and
implemented under COMELEC Resolution Nos. 9721,
9863, 10013, must perforce fail. To reiterate, this
requirement is not a “qualification” to the exercise of the
right of suffrage, but a mere aspect of the registration
procedure, of which the State has the right to reasonably
regulate. It was institutionalized conformant to the
limitations of the 1987 Constitution and is a mere
complement to the Existing Voter’s Registration Act of
1996. X x x
“ Thus, unless it is shown that a registration

requirement rises to the level of a literacy, property or
other substantive requirement as contemplated by the
Framers of the Constitution – that is, one which
propagates a socio-economic standard which is bereft of
any rational basis to a person’s ability to intelligently cast
his vote and to further the public good – the same cannot
be struck down as unconstitutional, as in this case.”

Page 162 of 196
Applying the Strict Scrutiny Test to RA 10367
“ Petitioners assert that biometrics validation gravely

violates the Constitution, considering that, applying the
strict scrutiny test, it is not poised with compelling reason
for state regulation and hence, an unreasonable
deprivation of the right to suffrage. X x x
“ Contrary to petitioners’ assertion, the regulation

passes the strict scrutiny test.
“ In terms of judicial review of statutes or ordinances,

strict scrutiny refers to the standard for determining the
quality and the amount of governmental interest brought to
justify the regulation of fundamental freedoms. Strict
scrutiny is used today to test the validity of laws dealing
with the regulation of speech, gender, or race as well as
other fundamental rights as expansion from its earlier
applications to equal protection. X x x the United States
Supreme Court has expanded the scope of scrutiny to
protect fundamental rights such as suffrage, judicial
access, and interstate travel.
“ Applying strict scrutiny, the focus is on the presence

of compelling, rather than substantial, governmental
interest and on the absence of less restrictive means
for achieving that interest, and the burden befalls upon
the State to prove the same.
“ In this case, respondents have shown that the

biometrics validation requirement under RA 10367
advances a compelling state interest. It was precisely
designed to facilitate the conduct of orderly, honest, and
credible elections by containing – if not eliminating, the
perennial problem of having flying voters, as well as dead
and multiple registrants. X x x the objective of the law was
to cleanse the national voter registry so as to eliminate
electoral fraud and ensure that the results of the elections
were truly reflective of the genuine will of the people. The

Page 163 of 196
foregoing consideration is unquestionably a compelling
state interest.
“ Also, it was shown that the regulation is the least

restrictive means for achieving the above-said interest.
Section 6 of Resolution 9721 sets the procedure for
biometrics validation x x x. It is, in effect, a manner of
updating one’s registration for those already registered
under RA 8189, or a first-time registration for new
registrants. The re-registration process is amply justified
by the fact that the government is adopting a novel
technology like biometrics in order to address the bane of
electoral fraud that has enduringly plagued the electoral
exercises in this country. While registrants may be
inconvenienced by waiting in long lines or by not being
accommodated on certain days due to heavy volume of
work, these are typical burdens of voting that are
remedied by bureaucratic improvements to be
implemented by the COMELEC as an administrative
institution. By and large, the COMELEC has not turned a
blind eye to these realities. It has tried to account for the
exigencies x x x.
“ That being said, the assailed regulation on the right

to suffrage was sufficiently justified as it was indeed
narrowly tailored to achieve the compelling state interest
of establishing a clean, complete, permanent and updated
list of voters, and was demonstrably the least restrictive
means in promoting that interest.
Makalintal v. COMELEC
here is now an exception to the residence

T
qualification of a voter under Section 1, Article V on
Suffrage of the Constitution, and that is, with respect to
overseas Filipinos, permanent residents of a foreign
country under R.A. No. 9189 (The Absentee Voters Act of
2003). Under said Act, overseas Filipinos, permanent
residents in a foreign country, are now allowed to register

Page 164 of 196
and vote before our embassies and consulates abroad for
President, Vice-President, Senators, and Party-list
Representative. There is a clear intent on the part of the
framers of our Constitution to enfranchise as many of our
overseas countrymen in recognition of their tremendous
contributions to the national economy in terms of dollar
remittances. It is but fair that their voices should be heard
on who should be our national leaders.
Effect of Filing Certificate of Candidacy
What is the purpose of the law in requiring the filing of

certificate of candidacy and in fixing the time limit
therefor?
The evident purpose of the law in requiring the filing
of certificate of candidacy and in fixing the time limit
therefor are: (a) to enable the voters to know, at least sixty
days before the regular election, the candidates among
whom they are to make the choice, and (b) to avoid
confusion and inconvenience in the tabulation of the votes
cast. For if the law did not confine the choice or election
by the voters to the duly registered candidates, there
might be as many persons voted for as there are voters,
and votes might be cast even for unknown or fictitious
persons as a mark to identify the votes in favor of a
candidate for another office in the same election. (Miranda
v. Abaya, G.R. No. 136351, July 28, 1999)
May a disqualified candidate and whose certificate of
candidacy was denied due course and/or canceled by
the COMELEC be validly substituted?
Even on the most basic and fundamental principles, it
is readily understood that the concept of a substitute
presupposes the existence of the person to be substituted,
for how can a person take the place of somebody who
does not exist or who never was. The Court has no other
choice but to rule that in all instances enumerated in
Section 77 of the Omnibus Election Code, the existence of
a valid certificate of candidacy seasonably filed is a
requisite sine qua non.

Page 165 of 196
All told, a disqualified candidate may only be
substituted if he had a valid certificate of candidacy in the
first place because, if the disqualified candidate did not
have a valid and seasonably filed certificate of candidacy,
he is and was not a candidate at all. If a person was not a
candidate, he cannot be substituted under Section 77 of
the Code. (Miranda v. Abaya, G.R. No. 136351, July 28,
1999, en Banc [Melo])
Effect of Disqualification Case
Abandoning the Doctrine of the Rejection of the

Second-Placer
Resolving the third issue necessitates revisiting

Topacio v. Paredes which is the jurisprudential spring of
the principle that a second-placer cannot be proclaimed as
the winner in an election contest. This doctrine must be
re-examined and its soundness once again put to the test
to address the ever-recurring issue that a second placer
who loses to an ineligible candidate cannot be proclaimed
as the winner in the elections.
Xxx
The often-quoted phrase in Topacio v. Paredes is that

“the wreath of victory cannot be transferred from an
ineligible candidate to any other candidate when the sole
question is the eligibility of the one receiving a plurality of
the legally cast ballots.”
This case is not even the ratio decidendi; it is a mere

obiter dictum. The Court was comparing “the effect of a
decision that a candidate is not entitled to the office
because of fraud or irregularities in the elections x x x
[with] that produced by declaring a person ineligible to
hold such an office.”
Xxx

Page 166 of 196
On closer scrutiny, the phrase relied upon by a host of
decisions does not even have a legal basis to stand on. It
was a mere pronouncement of the Court comparing one
process with another and explaining the effects thereof.
As an independent statement, it is even illogical.
Xxx
What prevents the transfer of the wreath of victory

from the ineligible candidate to another candidate?
When the issue being decided upon by the Court is

the eligibility of the one receiving a plurality of the legally
cast ballots and ineligibility is thereafter established, what
stops the Court from adjudging another eligible candidate
who received the next highest number of votes as the
winner and bestowing upon him that “wreath?”
An ineligible candidate who receives the highest

number of votes is a wrongful winner. By express legal
mandate, he could not even have been a candidate in the
first place, but by virtue of the lack of material time or any
other intervening circumstances, his ineligibility might not
have been passed upon prior to election date.
Consequently, he may have had the opportunity to hold
himself out to the electorate as a legitimate and duly
qualified candidate. However, notwithstanding the
outcome of the elections, his ineligibility as a candidate
remains unchanged. Ineligibility does not only pertain to
his qualifications as a candidate but necessarily affects his
right to hold public office. The number of ballots cast in his
favor cannot cure the defect of failure to qualify with the
substantive legal requirements of eligibility to run for public
office. (Casan Macode Maquiling v. COMELEC, et al.,
G.R. No. 195649, April 16, 2013, En Banc [Sereno, CJ])

With Arnado’s disqualification, Maquiling then
becomes the winner in the election as he obtained the
highest number of votes from among the qualified

Page 167 of 196
candidates. We have ruled in the recent cases of Aratea
v. COMELEC and Jalosjos v. COMELEC that a void COC
cannot produce any legal effect. Thus, the votes cast in
favor of the ineligible candidate are not considered at all in
determining the winner of an election.

Even when the votes for the ineligible candidate are
disregarded, the will of the electorate is still respected, and
even more so. The votes cast in favor of an ineligible
candidate do not constitute the sole and total expression
of the sovereign voice. The votes cast in favor of eligible
and legitimate candidates form part of that voice and must
also be respected.

As in any contest, elections are governed by rules
that determine the qualifications and disqualifications of
those who are allowed to participate as players. When
there are participants who turn out to be ineligible, their
victory is voided and the laurel is awarded to the next in
rank who does not possess any of the disqualifications nor
lacks any of the qualifications set in the rules to be eligible
as candidates.

Xxx

The electorate’s awareness of the candidate’s
disqualifications is not a prerequisite for the
disqualification to attach to the candidate. The very
existence of a disqualifying circumstance makes the
candidate ineligible. Knowledge by the electorate of a
candidate’s disqualification is not necessary before a
qualified candidate who placed second to a disqualified
one can be proclaimed as the winner. The second-placer
in the vote count is actually the first-placer among the
qualified candidates.

That the disqualified candidate has already been
proclaimed and has assumed office is of no moment. The
subsequent disqualifications based on a substantive

Page 168 of 196
ground that existed prior to the filing of the certificate of
candidacy voids not only the COC but the proclamation.

Xxx

The disqualifying circumstance surrounding Arnado’s
candidacy involves his citizenship. It does not involve the
commission of election offenses as provided for in the first
sentence of Section 68 of the Omnibus Election Code, the
effect of which is to disqualify the individual from
continuing as a candidate, or if has already been elected,
from holding the office.

The disqualifying circumstance affecting Arnado is his
citizenship. X x x Arnado was both a Filipino and an
American citizen when he filed his certificate of candidacy.
He was a dual citizen disqualified to run for public office
based on Section 40(d) of the Local Government Code.

With Arnado being barred from even becoming a
candidate, his certificate of candidacy is thus rendered
void from the beginning. It could not have produced any
other legal effect x x x.

To hold that such proclamation is valid is to negate
the prohibitory character of the disqualification which
Arnado possessed even prior to the filing of the certificate
of candidacy. The affirmation of Arnado’s disqualification,
although made long after the elections, reaches back to
the filing of the certificate of candidacy. Arnado is
declared to be not a candidate at all in the May 2010
elections.
Arnado being not a candidate, the votes cast in his

favor should not have been counted. This leaves
Maquiling as the qualified candidate who obtained the
highest number of votes therefore, the rule on succession
under the Local Government Code will not apply. (Casan
Macode Maquiling v. COMELEC, et al., G.R. No.

Page 169 of 196
195649, April 16, 2013, En Banc [Sereno, CJ])
THE LAW OF PUBLIC CORPORATIONS
Local Governments are the Territorial and Political

Subdivisions of the Republic of the Philippines
The territorial and political subdivisions of the

Republic of the Philippines are the provinces, cities,
municipalities, and barangays. There shall be
autonomous regions in Muslim Mindanao and the
Cordilleras as hereinafter provided. (Section 1,
Article X, 1987 Constitution)
Autonomous Regions
There shall be created autonomous regions in

Muslim Mindanao and in the Cordilleras consisting of
provinces, cities, municipalities, and geographical
areas sharing common and distinctive historical and
cultural heritage, economic and social structures, and
other relevant characteristics within the framework of
this Constitution and the national sovereignty as well
as territorial integrity of the Republic of the
Philippines. (Section 15, Article X, 1987
Constitution)
The Congress shall enact an organic act for each

autonomous region with the assistance and
participation of the regional consultative commission
composed of representatives appointed by the
President from a list of nominees from multisectoral
bodies. The organic act shall define the basic
structure of government for the region consisting of
the executive department and legislative assembly,
both of which shall be elective and representative of
the constituent political units. The organic acts shall
likewise provide for special courts with personal,

Page 170 of 196
family and property law jurisdiction consistent with the
provisions of this Constitution and national laws.
The creation of the autonomous region shall be
effective when approved by majority of the votes cast
by the constituent units in a plebiscite called for the
purpose, provided that only provinces, cities, and
geographical areas voting favorably in such plebiscite
shall be included in the autonomous region. (Sec. 18,
Art. X, 1987 Constitution)
The Province of North Cotabato v. The Government of

the Republic of the Philippines Peace Panel, G.R. No.
183591, 568 SCRA 402, October 14, 2008, En Banc
(Carpio-Morales)
Creation of Local Governments
No province, city, municipality, or barangay may

be created, divided, merged, abolished, or its
boundary substantially altered, except in accordance
with the criteria established in the local government
code and subject to approval by a majority of the
votes cast in a plebiscite in the political units directly
affected. (Section 10, Article X, 1987 Constitution)
Rodolfo G. Navarro, et al. v. Executive Secretary

Eduardo Ermita, et al., G.R. No. 180050, 12 May 2010,
En Banc (Peralta)
Section 7, Chapter 2 paragraph (c) of the Local
Government Code (LGC), provides that the land area
must be contiguous, unless it comprises two (2) or more
islands, or is separated by a local government unit
independent of the others; properly identified by metes
and bounds with technical descriptions; and sufficient to
provide for such basic services and facilities to meet the
requirements of its populace.
Therefore, there are two requirements for land area:
(1) the land area must be contiguous; and (2) the land
area must be sufficient to provide for such basic services

Page 171 of 196
and facilities to meet the requirements of its populace. A
sufficient land area in the creation of a province is at least
2,000 square kilometers, as provided by Section 461 of
LGC.
Hence x x x the requirement of a contiguous territory
and the requirement of a land area of at least 2,000
square kilometers are distinct and separate requirements
for land area under paragraph (a) (i) of Section 461 and
Section 7 (c) of LGC.
However, paragraph (b) of Section 461 provides two
instances of exemption from the requirement of territorial
contiguity, to wit, “the territory need not be contiguous if it
comprises two (2) or more islands, or is separated by a
chartered city or cities which do not contribute to the
income of the province.”
The exemption above pertains only to the requirement
of territorial contiguity. It clearly states that the
requirement of territorial contiguity may be dispensed with
in the case of a province comprising two or more islands,
or is separated by a chartered city or cities which do not
contribute to the income of the province.
Nowhere in paragraph (b) is it expressly stated or
may it be implied that when a province is composed of two
or more islands, or when the territory of a province is
separated by a chartered city or cities, such province need
not comply with the land area requirement of at least
2,000 square kilometers or the requirement in paragraph
(a) (i) of Section 461 of LGC.
Where the law is free from ambiguity, the court may
not introduce exceptions or conditions where none is
provided from considerations of convenience, public
welfare, or for any laudable purpose; neither may it engraft
into the law qualifications not contemplated, nor construe
its provisions by taking into account questions of
expediency, good faith, practical utility and other similar
reasons so as to relax non-compliance therewith. Where
the law speaks in clear and categorical language, there is
no room for interpretation, but only for application.

Page 172 of 196
Powers of Local Governments
Corporate Powers of Local Governments
o be considered as a valid police power, an

T
ordinance must pass a two-pronged test: the formal (i.e.,
whether the ordinance is enacted within the corporate
powers of the local government unit, and whether it is
passed in accordance with the procedure prescribed by
law); and the substantive (i.e., involving inherent merit, like
the conformity of the ordinance with the limitations under
the Constitution and the statutes, as well as with the
requirements of fairness and reason, and its consistency
with public policy).
he formalities in enacting an ordinance are laid down

T
in Section 53 and Section 54 of The Local Government
Code. These provisions require the ordinance to be
passed by the majority of the members of the sanggunian
concerned, and presented to the mayor for approval. X x
x.
he corporate powers of the local government unit

T
confer the basic authority to enact legislation that may
interfere with personal liberty, property, lawful businesses
and occupations in order to promote the general welfare.
Such legislative powers spring from the delegation thereof
by Congress through either the Local Government Code
or a special law. The General Welfare Clause in Section
16 of the Local Government Code embodies the legislative
grant that enables the local government unit to effectively
accomplish and carry out the declared objects of its
creation, and to promote and maintain local autonomy. X
x x.
ection 16 comprehends two branches of delegated

S
powers, namely: the general legislative power and the
police power proper. General legislative power refers to
the power delegated by Congress to the local legislative

Page 173 of 196
body, or the Sangguniang Panlungsod in the case of
Davao City, to enable the local legislative body to enact
ordnances and make regulations. This power is limited in
that the enacted ordinances must not be repugnant to law,
and the power must be exercised to effectuate and
discharge the powers and duties legally conferred to the
local legislative body. The police power, on the other
hand, authorizes the local government unit to enact
ordinances necessary and proper for the health and
safety, prosperity, morals, peace, good order, comfort, and
convenience of the local government unit and its
constituents, and for the protection of their property.
ection 458 of the Local Government Code explicitly

S
vests the local government unit with the authority to enact
ordinances aimed at promoting the general welfare x x x.
I n terms of the right of the citizens to health and to a

balanced and healthful ecology, the local government unit
takes its cue from Section 15 and Section 16, Article II of
the 1987 Constitution. Following the provisions of the
Local Government Code and the Constitution, the acts of
the local government unit designed to ensure the health
and lives of its constituents and to promote a balanced
and healthful ecology are well within the corporate powers
vested in the local government unit. X x x. (Wilfredo
Exporters Association, et al., G.R. No. 189185, August
16, 2016, En Banc [Bersamin])
Requisites of a Valid Ordinance
valid ordinance must not only be enacted within the

A
corporate powers of the local government and passed
according to the procedure prescribed by law. In order to
declare it as a valid piece of local legislation, it must also
comply with the following substantive requirements,
namely: (1) it must not contravene the Constitution or any
statute; (2) it must be fair, not oppressive; (3) it must not

Page 174 of 196
be partial or discriminatory; (4) it must not prohibit but may
regulate trade; (5) it must be general and consistent with
public policy; and (6) it must not be unreasonable.
(Wilfredo Mosqueda, et al. v. Pilipino Banana Growers
& Exporters Association, et al., G.R. No. 189185,
Ordinance No. 0309-07 of Davao City Prohibiting

Aerial Spraying in That City Declared Ultra Vires
Wilfredo Mosqueda, et al. v. Pilipino Banana Growers

& Exporters Association, et al., G.R. No. 189185,
Held:
The function of pesticides control, regulation and

development is within the jurisdiction of the FPA
(Fertilizer and Pesticide Authority) under Presidential
Decree No. 1144. The FPA was established in
recognition of the need for a technically oriented
government entity that will protect the public from the
risks inherent in the use of pesticides. To perform its
mandate, it was given under Section 6 of Presidential
Decree No. 1144 the following powers and functions
with respect to pesticides and other agricultural
chemicals x x x.
Evidently, the FPA was responsible for ensuring

the compatibility between the usage and the
application of pesticides in agricultural activities and
the demands for human health and environmental
safety. This responsibility includes not only the
identification of safe and unsafe pesticides, but also
the prescription of the safe modes of application in
keeping with the standard of good agricultural
practices.
On the other hand, the enumerated devolved

Page 175 of 196
functions to the local government units do not include
the regulation and control of pesticides and other
agricultural chemicals. X x x
In enacting Ordinance No. 0309-07 without the

inherent and explicit authority to do so, the City of
Davao performed an ultra vires act. As a local
government unit, the City of Davao could act only as
an agent of Congress, and its every act should always
conform to and reflect the will of its principal x x x.
For sure, every local government unit only

derives its legislative authority from Congress. In no
instance can the local government unit rise above its
source of authority. As such, its ordinance cannot run
against or contravene existing laws, precisely
because its authority is only by virtue of the valid
delegation from Congress. X x x
Moreover, Ordinance No. 0309-07 proposes to

prohibit an activity already covered by the jurisdiction
of the FPA, which has issued its own regulations
under its Memorandum Circular x x x.
X x x
Devoid of the specific delegation to its legislative

body, the City of Davao exceeded its delegated
authority to enact Ordinance No. 0309-07. Hence,
Ordinance No. 0309-07 must be struck down also for
being an ultra vires act on the part of the Sangguning
Bayan of Davao City.
We must emphasize that our ruling herein does

not seek to deprive the LGUs their right to regulate
activities within their jurisdiction. They are
empowered under Section 16 of the Local
Government Code to promote the general welfare of
the people through regulatory, not prohibitive,

Page 176 of 196
ordinances that conform with the policy directions of
the National Government. Ordinance No. 0309-07
failed to pass this test as it contravenes the specific
regulatory policy on aerial spraying in banana
plantations on a nationwide scale of the National
Government, through the FPA.
Requisites for a Proper Exercise by Local

Governments of Police Power
I n the State’s exercise of police power, the property

rights of individuals may be subjected to restraints and
burdens in order to fulfill the objectives of the Government.
A local government unit is considered to have properly
exercised its police power only if it satisfies the following
requisites, to wit: (1) the interests of the public generally,
as distinguished from those of a particular class, require
the interference of the State; and (2) the means employed
are reasonably necessary for the attainment of the object
sought to be accomplished and not unduly oppressive.
The first requirement refers to the Equal Protection
Clause of the Constitution, the second, to the Due Process
Clause of the Constitution.
Substantive due process requires that a valid

ordinance must have a sufficient justification for the
Government’s action. This means that in exercising police
power the local government unit must not arbitrarily,
whimsically or despotically enact the ordinance regardless
of its salutary purpose. So long as the ordinance
realistically serves a legitimate public purpose, and it
employs means that are reasonably necessary to achieve
that purpose without unduly oppressing the individuals
regulated, the ordnances must survive a due process
challenge. (Wilfredo Mosqueda, et al. v. Pilipino Banana
Growers & Exporters Association, et al., G.R. No. 189185,
Vacancies and Succession in the Local Governments

Page 177 of 196
Farinas v. Barba
Limitation on Term of Office of Local Elective Officials
The term of office of elective local officials, except

barangay officials, which shall be determined by law,
shall be three years and no such official shall serve
for more than three consecutive terms. Voluntary
renunciation of office for any length of time shall not
be considered as an interruption in the continuity of
his service for the full term for which he was elected.
(Section 8, Article X, 1987 Constitution)
The term limit for elective local officials must be taken

to refer to the right to be elected as well as the right to
serve in the same elective position. Consequently, it is not
enough that an individual has served three consecutive
terms in an elective local office, he must also have been
elected to the same position for the same number of times
before the disqualification can apply. (Borja, Jr. v.
COMELEC and Capco, Jr., G.R. No. 133495, Sept. 3,
1998, 295 SCRA 157, En Banc [Mendoza])
The two conditions for the application of the
disqualification provision are: (1) that the local official
concerned has been elected three consecutive times for
the same position; and (2) that he has fully served three
consecutive terms. Absent one or both of these two
conditions, the disqualification may not yet apply. (Borja,
Jr. v. COMELEC and Capco, Jr., G.R. No. 133495, Sept.
3, 1998, 295 SCRA 157, En Banc [Mendoza])
What are the policies embodied in the constitutional
provision barring elective local officials, with the
exception of barangay officials, from serving more
than three consecutive terms?
To prevent the establishment of political dynasties is
not the only policy embodied in the constitutional provision
in question (barring elective local officials, with the
exception of barangay officials, from serving more than

Page 178 of 196
three consecutive terms). The other policy is that of
enhancing the freedom of choice of the people. To
consider, therefore, only stay in office regardless of how
the official concerned came to that office – whether by
election or by succession by operation of law – would be
to disregard one of the purposes of the constitutional
provision in question. (Borja, Jr. v. COMELEC and
Capco, Jr., G.R. No. 133495, Sept. 3, 1998, 295 SCRA
157, En Banc [Mendoza])
Socrates v. COMELEC (November 12, 2002)
hat is prohibited by the Constitution is after serving

W
three (3) consecutive terms to the same position a local
elective official shall run for immediate reelection. Any
subsequent reelection, like a recall election, is no longer
covered by the provision, for as long as it is not an
immediate reelection after serving the three (3)
consecutive terms.
Mendoza v. COMELEC (December 17, 2002)
ervice of the recall term, since it is less than three

S
(3) years, is not to be considered as one full term for
purposes of applying the disqualification under Section 8,
Article X of the Constitution.
Is the preventive suspension of an elected local

government official an interruption of his term of
office for purposes of the three-term limit rule?
The “interruption” of a term exempting an elective
official from the three-term limit rule is one that involves no
less than the involuntary loss of title to office. The elective
official must have involuntarily left his office for a length of
time, however short, for an effective interruption to occur.
Thus, based on this standard, loss of office by operation
of law, being involuntary, is an effective interruption of
service within a term. On the other hand, temporary
inability or disqualification to exercise the functions of an
elective post, even if involuntary, should not be considered

Page 179 of 196
an effective interruption of a term because it does not
involve the loss of title to office or at least an effective
break from holding office; the office holder, while retaining
title, is simply barred from exercising the functions of his
office for a reason provided by law.
An interruption occurs when the term is broken
because the office holder lost the right to hold on to his
office, and cannot be equated with the failure to render
service. The latter occurs during an office holder’s term
when he retains title to the office but cannot exercise his
functions for reasons established by law. Of course, the
term “failure to serve” cannot be used once the right to
office is lost; without the right to hold office or serve, then
no service can be rendered so that none is really lost.
To put it differently, Sec. 8, Art. X fixes an elective
official’s term of office and limits his stay in office to three
consecutive terms as an inflexible rule that is stressed no
less, by citing involuntary renunciation as an example of a
circumvention. The provision should be read in the
context of interruption of term, not in the context of
interrupting the full continuity of the exercise of the powers
of the elective position. The “voluntary renunciation” it
speaks of refers only to the elective official’s voluntary
relinquishment of office and loss of title to his office. It
does not speak of the temporary “cessation of the exercise
of power or authority” that may occur for various reasons,
with preventive suspension being only one of them.
In all cases of preventive suspension, the suspended
official is barred from performing the functions of his office
and does not receive salary in the meanwhile, but does
not vacate and lose title to his office; loss of office is a
consequence that only results upon an eventual finding of
guilt or liability. (Aldovino, Jr. v. COMELEC, G.R. No.
184836, Dec. 23, 2009, En Banc [Brion])
Recall
R.A. No. 9244 (February 18, 2004) – An Act Abolishing the

Preparatory Recall Assembly as a Mode of Initiating Recall


Page 180 of 196
Claudio v. COMELEC
PUBLIC INTERNATIONAL LAW
Jus Cogens Norms and Erga Omnes Obligations
J ust cogens literally means “compelling law.” As

defined, it means a peremptory (mandatory) norm of
general international law which is recognized and
accepted by the international community of States as a
norm that does not permit of any derogation and which
can be replaced or modified only by a subsequent norm of
the same character.
nder the Vienna Convention on the Law of Treaties,

U
a treaty that violates a jus cogens norm will have to be
invalidated.
rga omnes literally means “in relation to the whole.”

E
An erga omnes refers to an obligation of a State towards
the international community of States as a whole.
Between an erga omnes obligation and an obligation

of a State towards another State pursuant to a treaty, an
erga omnes is superior.
However, in Vinuya, et. al. v. The Honorable

Executive Secretary Alberto G. Romulo, et. al., (G.R.
No. 162230, April 28. 2010, En Banc [Del Castillo]), the
SC clarified that there is yet no consensus on the proper
criteria for identifying peremptory norms. It held:
Even the invocation of jus cogens norms and

erga omnes obligations will not alter this analysis.
Even if we sidestep the question of whether jus
cogens norms existed in 1951, petitioners have not
deigned to show that the crimes committed by the
Japanese army violated jus cogens prohibitions at the

Page 181 of 196
time the Treaty of Peace was signed, or that the duty
to prosecute perpetrators of international crimes is an
erga omnes obligation or has attained the status of
jus cogens.
The term erga omnes (Latin: in relation to

everyone) in international law has been used as a
legal term describing obligations owed by States
towards the community of states as a whole. The
concept was recognized by the ICJ in Barcelona
Traction x x x.
Such obligations derive, for example, in

contemporary international law, from the outlawing of
acts of aggression, and of genocide, as also from the
principles and rules concerning the basic rights of the
human person, including protection from slavery and
racial discrimination. Some of the corresponding
rights of protection have entered into the body of
general international law … others are conferred by
international instruments of a universal or quasi-
universal character.
The Latin phrase, ‘erga omnes,’ has since

become one of the rallying cries of those sharing a
belief in the emergence of a value-based international
public order. However, as is so often the case, the
reality is neither so clear nor so bright. Whatever the
relevance of obligations erga omnes as a legal
concept, its full potential remains to be realized in
practice.
The term is closely connected with the

international law concept of jus cogens. In
international law, the term “jus cogens” (literally,
“compelling law”) refers to norms that command
peremptory authority, superseding conflicting treaties
and custom. Jus cogens norms are considered
peremptory in the sense that they are mandatory, do

Page 182 of 196
not admit derogation, and can be modified only by
general international norms of equivalent authority.
Early strains of the jus cogens doctrine have

existed since the 1700s, but peremptory norms began
to attract greater scholarly attention with the
publication of Alfred von Verdross’s influential 1937
article, Forbidden Treaties in International Law. The
recognition of jus cogens gained even more force in
the 1050s and 1960s with the ILC’s preparation of the
Vienna Convention on the Law of Treaties (VCLT).
Though there was a consensus that certain
international norms had attained the status of jus
cogens, the ILC was unable to reach a consensus on
the proper criteria for identifying peremptory norms.
` After an extended debate over these and other

theories of jus cogens, the ILC concluded ruefully in
1963 that “there is not as yet any generally accepted
criterion by which to identify a general rule of
international law as having the character of jus
cogens.” In a commentary accompanying the draft
convention, the ILC indicated that “the prudent course
seems to be to x x x leave the full content of this rule
to be worked out in State practice and in the
jurisprudence of international tribunals.” Thus, while
the existence of jus cogens in international law is
undisputed, no consensus exists on its substance,
beyond a tiny core of principles and rules.
The Doctrine of Incorporation
The Province of North Cotabato v. The Government of

the Republic of the Philippines Peace Panel, G.R. No.
(Carpio-Morales)
he right to self-determination of peoples has gone

T
beyond mere treaty or convention; in fact, it has now been

Page 183 of 196
elevated into the status of a generally accepted of
international law. However, as normally understood in
international law, this right to self-determination merely
refers to right to internal self-determination, i.e., a people’s
pursuit of its own political, economic, social and cultural
development within the framework of an existing State.
The right to external self-determination, which consists of
the assertion of a right to unilateral secession, may be
invoked only in extreme cases, i.e., in case of people
under colonial rule, or in case of people under foreign
domination or exploitation outside of a colonial context..
The State
The Concept of an Association or Associated State
n association is formed when two states of unequal

A
power voluntarily establish durable links. In the basic
model, one state, the associate, delegates certain
responsibilities to the other, the principal, while
maintaining its international status as a state. Free
associations represent a middle ground between
integration and independence. Examples of states which
maintain an associated state relationship with the United
States are the newly-formed states of Micronesia and the
Marshall Islands in the Pacific.
In US constitutional and international practice, free

association is understood as an international association
between sovereigns. The Compact of Free Association is
a treaty which is subordinate to the associated nation’s
national constitution, and each party may terminate the
association consistent with the right of independence. It
has been said that, with the admission of the US-
associated states to the UN in 1990, the UN recognized
that the American model of free association is actually
based on an underlying status of independence.
In international practice, the “associated state”

Page 184 of 196
arrangement has usually been used as a transitional
device of former colonies on their way to full
independence. Examples of states that have passed
through the status of associated states as a transitional
phase are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St.
Lucia, St. Vincent and Grenada. All have since become
independent states. (The Province of North Cotabato v.
The Government of the Republic of the Philippines
Peace Panel, G.R. No. 183591, 568 SCRA 402, October
14, 2008, En Banc [Carpio-Morales])
The Concept of “Association” is not recognized under

the 1987 Philippine Constitution
The 1987 Constitution provides that no province, city,

or municipality, not even the Autonomous Region for
Muslim Mindanao (ARMM) is recognized under our laws
as having an “associative” relationship with the national
government. Indeed, the concept implies powers that go
beyond anything ever granted by the Constitution to any
local or regional government. It also implies the
recognition of the associated entity as a state. The
Constitution, however, does not contemplate any state in
this jurisdiction other than the Philippine State, much less
does it provide for a transitory status that aims to prepare
any part of Philippine territory for independence. (The
Province of North Cotabato v. The Government of the
Republic of the Philippines Peace Panel, G.R. No.
[Carpio-Morales])
Sovereignty as an Element of a State

Is sovereignty really absolute and all-encompassing? If not, what are its restrictions and
limitations?
While sovereignty has traditionally been deemed

absolute and all-encompassing on the domestic level, it is
however subject to restrictions and limitations voluntarily
agreed to by the Philippines, expressly or impliedly, as a

Page 185 of 196
member of the family of nations. By the doctrine of
incorporation, the country is bound by generally accepted
principles of international law, which are considered to be
automatically part of our own laws. One of the oldest and
most fundamental rules in international law is pacta sunt
servanda – international agreements must be performed in
good faith. A state which has contracted valid
international obligations is bound to make in its legislations
such modifications as may be necessary to ensure the
fulfillment of the obligations.
By their inherent nature, treaties really limit or restrict

the absoluteness of sovereignty. By their voluntary act,
nations may surrender some aspects of their state power
in exchange for greater benefits granted by or derived
from a convention or pact. After all, states, like
individuals, live with coequals, and in pursuit of mutually
covenanted objectives and benefits, they also commonly
agree to limit the exercise of their otherwise absolute
rights. Thus, treaties have been used to record
agreements between States concerning such widely
diverse matters as, for example, the lease of naval bases,
the sale or cession of territory, the termination of war, the
regulation of conduct of hostilities, the formation of
alliances, the regulation of commercial relations, the
settling of claims, the laying down of rules governing
conduct in peace and the establishment of international
organizations. The sovereignty of a state therefore cannot
in fact and in reality be considered absolute. Certain
restrictions enter into the picture: (1) limitations imposed
by the very nature of membership in the family of nations
and (2) limitations imposed by treaty stipulations. (Tanada
v. Angara, 272 SCRA 18, May 2, 1997 [Panganiban])
Territory of States
Professor Merlin M. Magallona, et al. v. Hon. Eduardo

Ermita, et al., G.R. No. 187167, 655 SCRA 476, August
16, 2011, En Banc (Carpio)

Page 186 of 196
Diplomatic and Consular Immunities and Privileges
Liang v. People, 323 SCRA 692 (2000); 355 SCRA 125

(2001) (Focus on Justice Puno’s Concurring Opinion)
Extradition and Asylum
Nationality and Statelessness
Refugees
A refugee is a person who, owing to a well-founded

fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or
political opinion, is outside the country of his nationality
and is unable or owing to such fear, is unwilling to avail
himself of the protection of that country; or who, not having
a nationality and being outside the country of his former
habitual residence, is unable or, or owing to such fear, is
unwilling to return to it. (Convention Relating to the Status
of Refugees, Art. 1 A[2]) (Magallona, Fundamentals of
Public International Law, 2005 Ed., p. 287)
The Non-Refoulement Principle
he right of a refugee not to be expelled or returned

T
“in any manner whatsoever to the frontiers of territories
where his life or freedom would be threatened on account
of his race, religion, nationality, membership of a particular
social group or political opinion.” The prohibition of such
expulsion or return becomes an obligation of States
parties to the Convention Relating to the Status of
Refugees. (Magallona, Fundamentals of Public
International Law, 2005 Ed., p. 289)
The Law on Treaties
Rene A.V. Saguisag, et al. v. Executive Secretary

Page 187 of 196
Paquito N. Ochoa, Jr., G.R. No. 212426, January 12,
2016, En Banc (Sereno, CJ)
The Doctrine of State Responsibility to Aliens
n important premise for this doctrine to be validly

A
invoked is that a State is under no legal obligation in
international law to admit an alien in its territory. However,
the moment it admits an alien, it is duty-bound to provide
protection to that alien so that once the State is remiss in
the performance of this duty and the alien dies, or suffers
injury or loss, this could lead to liability on the part of the
State.
Requisites for this doctrine to apply:
1. An act or omission in violation of international law;

2. Attributable to the State;
3. Causing damage or injury to a third State directly, or
indirectly, to a national of the third State.
Conditions for the enforcement of claims under this

doctrine:
1. The nationality of the claim;

2. Exhaustion of local remedies;
3. No waiver;
4. No unreasonable delay in filing the claim; and
5. No improper conduct on the part of the injured
alien.
International Humanitarian Law (IHL)
International humanitarian law is the branch of

public international law which governs armed conflicts to
the end that the use of violence is limited and that human
suffering is mitigated or reduced by regulating or limiting
the means of military operations and by protecting persons
who do not or no longer participate in the hostilities.

Page 188 of 196
(Magallona, Fundamentals of Public International
Law, 2005 ed., p. 291)
International Humanitarian Law (IHL) encompasses

both humanitarian principles and international treaties that
seek to save lives and alleviate suffering of combatants
and noncombatants during armed conflict. Its principal
legal documents are the Geneva Conventions of 1949,
four treaties signed by almost every nation in the world.
The Conventions define fundamental rights for
combatants removed from the fighting due to injury,
illness, or capture, and for civilians. The 1977 Additional
Protocols, which supplement the Geneva Conventions,
further expand those rights.
These are:
(1) Geneva Convention for the Amelioration of the

Condition of the Wounded and Sick in Armed
Forces in the Field of August 12, 1949 (First
Geneva Convention);
(2) Geneva Convention for the Amelioration of the
Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea of August 12,
1949 (Second Geneva Convention);
(3) Geneva Convention Relative to the Treatment of
Prisoners of War of August 12, 1949 (Third
Geneva convention);
(4) Geneva Convention Relative to the Protection of
Civilian Persons in Time of War of August 12, 1949
(Fourth Geneva Convention);
(5) Protocol Additional to the Geneva Conventions of
12 August 1949 and Relating to the Protection of
Victims of International Armed Conflicts (Protocol I)
of 8 June 1977; and
(6) Protocol Additional to the Geneva Conventions of
12 August 1949 and Relating to the Protection of
Victims of Non-International Armed Conflicts
(Protocol II) of 8 June 1977.

Page 189 of 196
IHL is not concerned with the lawfulness or
unlawfulness of armed conflict. In violation of the
prohibition against the threat or use of force under
international law, a state may engage in armed attack
against another state, resulting in armed conflict between
them. The application of IHL in their conflict pertains
solely to the fact of armed conflict as the use of force
remains unlawful. Armed conflict, in which IHL properly
applies, may arise from a legitimate use of force as when
a multinational force of UN members engages in armed
attack against a State by authority of the UN Security
Council as an enforcement measure under Article 42 of
the UN Charter. In either case, there will be victims of the
conflict who must come under the protection of IHL, and
there may be methods of warfare which may come under
the prohibition of IHL. Hence, the issue of lawfulness or
unlawfulness of the armed conflict is of no legal
importance from the standpoint of IHL. (Magallona,
Fundamentals of Public International Law, 2005 ed., p.
293)
The Principle of Distinction
n important principle to be observed under IHL is the

A
Principle of Distinction. Under this principle, persons
directly engaged in armed conflict must, at all times,
distinguish between civilians and combatants; between
civilian objects and military objectives, so that only
combatants and military objectives may be subject of
attack.
Categories of Armed Conflicts
1. International Armed Conflicts

2. Internal or Non-international Armed Conflicts
3. War of National Liberation
War of National Liberation

Page 190 of 196
n armed conflict may be of such nature in which
A
“peoples are fighting against colonial domination and alien
occupation and against racist regimes in the exercise of
their right of self-determination.”
This conflict involving the right of peoples to self-

determination is an international armed conflict. It is so
classified under Article I, paragraphs 3 and 4 of Protocol I.
Under these provisions, this conflict which may be
referred to as “war of national liberation,” is included in the
classification set out in Article 2 common to the four
Geneva Conventions of 1949 x x x. (Magallona,
Fundamentals of Public International Law, 2005 ed., p.
307)
The International Criminal Court (ICC)
The Rome Statute
The Rome Statute established the International

Criminal Court which “shall have the power to exercise its
jurisdiction over persons for the most serious crimes of
international concern x x x and shall be complementary to
the national criminal jurisdictions.” (Article I, Rome Statute)
Its jurisdiction covers the crime of genocide, crimes
against humanity, war crimes and the crime of aggression
as defined in the Statute (Article 5, Rome Statute). The
Statute was opened for signature by all States in Rome on
July 17, 1988 and had remained open for signature until
December 31, 2000 at the United Nations Headquarters in
New York. The Philippines signed the Statute on
December 28, 2000 x x x. Its provisions, however, require
that it be subject to ratification, acceptance or approval of
the signatory states (Article 25, Rome Statute).
(Pimentel, Jr. v. Office of the Executive Secretary, 462
SCRA 622, July 6, 2005, En Banc [Puno])
What offenses fall under the jurisdiction of the

Page 191 of 196
International Criminal Court (ICC)?
The International Criminal Court (ICC) shall have the

power to exercise jurisdiction over persons for the most
serious crimes of international concern. Its jurisdiction
covers the crime of genocide, crimes against humanity,
war crimes and the crime of aggression as defined in the
Statute (Article 5, Rome Statute). (Pimentel, Jr. v. Office
of the Executive Secretary, 462 SCRA 622, July 6,
2005, En Banc [Puno])
What is the Principle of Complementarity in the

Statute of the International Criminal Court (ICC)?
he tenth preambular paragraph of the ICC Statute

T
emphasizes that “the International Criminal Court x x x
shall be complementary to national criminal jurisdiction.”
This principle becomes operative in Article 1 of the
Statute. This, however, has to be correlated with the sixth
preambular paragraph of the Statute which declares that
“it is the duty of every State to exercise its criminal
jurisdiction over those responsible for international
crimes.” The principle of complementarity produces a
correlation of the ICC jurisdiction with that of every state
over international crimes under the ICC Statute.
The principle of complementarity gives primacy to

national jurisdiction x x x.
The principle of ne bis in idem in Article 20, paragraph

3, of ICC Statute strengthens complementarity, thus:
Unless the proceedings in the national court is for the
purpose of shielding the person concerned from liability, or
not conducted independently or impartially, “no person
who has been tried by another court for conduct …
[constituting crimes within its jurisdiction] shall be tried by
the Court with respect to the same conduct x x x.”
(Magallona, Fundamentals of Public International Law
[2005 ed.])

Page 192 of 196
The Law of the Sea
The international law of the sea is generally defined

as “a body of treaty rules and customary norms governing
the uses of the sea, the exploitation of its resources, and
the exercise of jurisdiction over maritime regimes. It is a
branch of public international law, regulating the relations
of states with respect to the uses of the oceans.” (Merlin
M. Magallona, A Primer on the Law of the Sea, 1997, p. 1)
The UNCLOS is a multilateral treaty which was opened
for signature on December 10, 1982 at Montego Bay,
Jamaica. It was ratified by the Philippines in 1984 but
came into force on November 16, 1994 upon the
submission of the 60 ratification.
th
The UNCLOS is a product of international negotiation

that seeks to balance State sovereignty (mare clausum)
and the principle of freedom of the high seas (mare
liberum). The freedom to use the world’s marine waters is
one of the oldest customary principle of international law
(Anne Bardin, “Coastal State’s Jurisdiction Over Foreign
Vessels” 14 Pace Int’l. Rev. 27, 28 [2002]). The UNCLOS
gives to the coastal State sovereign rights in varying
degrees over the different zones of the sea which are: 1)
internal waters, 2) territorial sea, 3) contiguous zone, 4)
exclusive economic zone, and 5) the high seas. It also
gives coastal States more or less jurisdiction over foreign
vessels depending on where the vessel is located (Id. At
29).
I nsofar as the internal waters and territorial sea is

concerned, the Coastal States exercises sovereignty,
subject to the UNCLOS and other rules of international
law. Such sovereignty extends to the air apace over the
territorial sea as well as to its bed and subsoil (Art. 2,
UNCLOS). (Most Rev. Pedro D. Arigo, et al. v. Scott H.
Swift, et al., G.R. No. 206510, September 16, 2014, En
Banc [Villarama, Jr.])

Page 193 of 196
International Environmental Law
Background Information
The Convention on Biological Diversity (CBD)
n December 29, 1993, the Convention on Biological

O
Diversity (CBD) came into force. This multilateral treaty
recognized that “modern biotechnology has great potential
for human well-being if developed and used with adequate
safety measures for the environment and human health.”
Its main objectives, as spelled out in Article I, are the
“conservation of biological diversity, the sustainable use of
its components and the fair and equitable sharing of the
benefits arising out of the utilization of genetic resources.”
The Cartagena Protocol
I n January 2000, an agreement was reached on the

Cartagena Protocol on Biosafety (Cartagena Protocol), a
supplemental to the CBD. The Cartagena Protocol aims
“to contribute to ensuring an adequate level of the safe
transfer, handling and use of living modified organisms
resulting from modern biotechnology that may have
adverse effects on the conservation and sustainable use
of biological diversity, taking into account risks to human
health, and specifically focusing on transboundary
movements.”
n May 24, 2000, the Philippines signed the

O
Cartagena Protocol, which came into force on September
11, 2003. On August 14, 2006, the Philippine Senate
adopted Senate Resolution No. 92 or the “Resolution
Concurring in the Ratification of the Cartagena Protocol on
Biosafety (CPB) to the UN Convention on Biological

Page 194 of 196
Diversity.” (International Service for the Acquisition of
Agri-biotech Applications, Inc. v. Greenpeace
Southeast Asia (Philippines), et al., GR No. 209271,
December 8, 2015, En Banc [Villarama])
Biotechnology
Biotechnology is a multi-disciplinary field which may

be defined as “any technique that uses living organisms or
substances from those organisms to make or modify a
product, to improve plants or animals, or to develop
microorganisms for specific uses.” Its many applications
include agricultural production, livestock, industrial
chemicals and pharmaceuticals. (International Service
for the Acquisition of Agri-biotech Applications, Inc. v.
Greenpeace Southeast Asia (Philippines), et al., GR
No. 209271, December 8, 2015, En Banc [Villarama])
The precautionary principle originated in Germany in

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

approach shall be widely applied by States according
to their capabilities. Where there are threats of

Page 195 of 196
serious or irreversible damage, lack of full scientific
certainty shall not be used as a reason for postponing
cost-effective measures to prevent environmental
degradation.

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

incorporated the principle in Part V, Rule 20.
41

Page 196 of 196

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Notes and Cases

POLITICAL LAW AND PUBLIC INTERNATIONAL LAW

The Doctrine of Constitutional Supremacy

Under the doctrine of constitutional supremacy, if a

Self-executing and Non-self-executing Provisions of

A provision which lays down a general principle, such

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Provisions of the Constitution are presumed to be

Unless it is expressly provided that a legislative act is

The Effect of Declaration of Unconstitutionality of a

A legislative or executive act that is declared void for

The Operative Fact Doctrine

The doctrine of operative fact recognizes the

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Operative Fact Doctrine Applied in the DAP

​ e find the doctrine of operative fact applicable to the

As already mentioned, the implementation of the DAP

The other side of the coin is that it has been

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The Doctrine of Operative Fact Extends as well to a

​ he term executive act is broad enough to include

In Commissioner of Internal Revenue v. San Roque

The Presumption of Good Faith Stands in the DAP

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At any rate, the Court has agreed during its

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THE NATIONAL TERRITORY

The national territory comprises the Philippine

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

In 1961, Congress passed Republic Act No. 3046 (RA

In March 2009, Congress amended RA 3046 by

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RA 9522 is not unconstitutional. It is a statutory tool

​ NCLOS III has nothing to do with the acquisition (or

​ n the other hand, baselines laws such as RA 9522

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Thus, baselines laws are nothing but statutory

UNCLOS III and its ancillary baselines laws play no

RA 9522’s use of the framework of Regime of Islands

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​ he configuration of the baselines drawn under RA

​ etitioners’ assertion of loss of “about 15,000 square

​ urther, petitioners’ argument that the KIG now lies

Had Congress in RA 9522 enclosed the KIG and the

Although the Philippines has consistently claimed

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[T]he amendment of the baselines law was necessary

Hence, far from surrendering the Philippines’ claim

THE DOCTRINE OF STATE IMMUNITY FROM SUIT

The State may not be sued without its consent.

Discuss the basis of the Doctrine of State Immunity

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Is the rule absolute, i.e., that the State may not be

The rule, in any case, is not really absolute for it does

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The rule that when the State enters into a contract

This rule is not without qualification. Not all contracts

In United States of America v. Ruiz (136 SCRA 487),

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The restrictive application of State immunity is

When is a suit against a public official deemed to be a

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The rule does not apply where the public official is

Neither does it apply where the public official is clearly

e find the doctrine of operative fact applicable to the

he term executive act is broad enough to include

NCLOS III has nothing to do with the acquisition (or

n the other hand, baselines laws such as RA 9522

he configuration of the baselines drawn under RA

etitioners’ assertion of loss of “about 15,000 square

urther, petitioners’ argument that the KIG now lies

petition filed for the issuance of a Writ of Kalikasan

lso, the demand for compensation for the

he funds of the UP are government funds that are

nder the 1987 Constitution, an international law can

I n this case, the SC ruled that this provision is self-

lso, in this case the SC held that “patrimony” simply

The precautionary principle originated in Germany in

longside the aforesaid uncertainties, the non-

We have found the experience of India in the Bt brinjal

he crystal toxin genes from the soil bacterium

he principle of precaution originated as a social

I n this jurisdiction, the principle of precaution

It is notable x x x that the precautionary principle shall

I n Mosqueda, et al. v. Pilipino Banana Growers &

etitioners in this case were marine mammals