CONSTITUTIONAL LAW

ARTICLE 10 TO 12

Article 10: Local Government Units

Take note that there are only 5 territorial and Political subdivisions in the Republic of
the Philippines:
1. Autonomous Region
2. Provinces
3. Cities
4. Municipalities
5. Barangays

These political subdivisions enjoy local autonomy. There are 2 Autonomous Regions, the
Muslim Mindanao and the Cordilleras.

The Congress shall enact a local government code which shall provide for a more
responsive and accountable local government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative, and referendum, allocate
among the different local government units their powers, responsibilities, and
resources, and provide for the qualifications, election, appointment and removal, term,
salaries, powers and functions and duties of local officials, and all other matters relating
to the organization and operation of the local units.

The Metropolitan Manila Development Authority (MMDA) is not among those

enumerated as Political Subdivision. In fact, it is only an administrative coordinating
body that would coordinate all the different municipalities and cities consisting of
Metropolitan Manila so far as delivery of basic services, such as traffic management,
solid waste management, or you have water distribution or electricity. It is not a political
subdivision and therefore unlike those political subdivision enumerated, this MMDA
does not have eminent domain, police power or taxation power because it is not a local
government unit.

If MMDA promulgates rules and regulation, for example in terms of management of

traffic in Metropolitan Manila, it is not an exercise of legislative power, it is a rule-
making power as may be delegated to it by the law that created it or otherwise by
ordinances or resolutions passed by the LGU comprising of the MMDA, delegating to it
the authority to promulgate rules and regulations pertaining to the delivery of basic
services.

In terms of creations, organizations, structure and powers of LGU, it is governed by R.A.

7160 otherwise known as the Local Government Code, therefore, Congress has control
over Local Government Units whereas, President only has supervision over the Local
officials and the Local Government Units.

What is the difference between supervision and control? Control is when the authority
or the supervisor, or the superior can even change the decision or repeal the decision of
a subordinate such as the LGU, in other words, ordinances of LGU can be invalidated by
Statutes passed by Congress or if they’re contrary to the Local Government Code, that is
part of control. On the other hand, supervision, which is a power exercised by the
President over them, refers only to overseeing, to make sure that these LGUs or LG
officials performed their functions in accordance with law. Therefore, it does include
repealing or modifying a decision of a LGU.

Example, Tax ordinance that is being questioned, and it is in the Office of the DOJ
Secretary. Question: Can the DOJ Secretary nullify a Tax Ordinance? Remember that
the DOJ Secretary is just an alter-ego of the President who has only supervision over
LGU, therefore, it CANNOT repeal or modify an ordinance or a resolution. They have to
go to court if he wants to challenge the validity of that ordinance or resolution passed by
a LGU. With respect to creation, under the LGU 3 factors are required to be established
to create a LGU may it be a Province, City, Municipality, or Barangay.

Three Factors that are needed:

1. Income
2. Population
3. Area

They are specific requirements as provided in the Local Government Code as amended.

In The case of Navarro vs Ermita, where there was a question on the validity of the
creation of Dinagat Island as a Province for lack of the requisite area and population as
provided by law, the Local Government Code requires that a province may be created if
it has a contiguous territory of at least two thousand (2,000) square kilometers, as
certified by the Lands Management Bureau or a population of not less than two
hundred fifty thousand (250,000) inhabitants as certified by the National Statistics
Office, in which Dinagat Island failed to meet (this came out in the Bar). Dinagat Island
only had a land area of 802.12 square kilometers and a population of only 106,951.
However, The Supreme Court said that although the law requires a specific number of
kilometers or square-kilometers but if it involves an island to be converted into a
province, the SC said that this is an exemption where it may not strictly comply with the
requisite area so long as it is self-sustaining. Meaning, it has the requisite population
and income.

As elucidated in the case of Navarro vs Ermita, it must be borne in mind that the
central policy considerations in the creation of local government units are economic
viability, efficient administration, and capability to deliver basic services to their
constituents. The criteria prescribed by the LGC, i.e., income, population and land area,
are all designed to accomplish these results. Without doubt, the primordial criterion in
the creation of local government units, particularly of a province, is economic viability.

It must be pointed out that when the local government unit to be created consists of one
(1) or more islands, it is exempt from the land area requirement as expressly provided in
Section 442 and Section 450 of the LGC if the local government unit to be created is a
municipality or a component city, respectively. There appears neither rhyme nor reason
why this exemption should apply to cities and municipalities, but not to provinces.

When the exemption was expressly provided in Article 9(2) of the LGC-IRR, the
inclusion was intended to correct the congressional oversight in Section 461 of the LGC
and to reflect the true legislative intent. It would, then, be in order for the Court to
uphold the validity of Article 9(2) of the LGC-IRR (Local Government Code-
Implementing Rules and Regulations).

Income. In terms of income, what are the sources? Number one, the constitution has
expressly authorized each local government unit to create its own sources of revenues
and to levy taxes, fees, and charges subject to such guidelines and limitations as the
Congress may provide, consistent with the basic policy of local autonomy. Such taxes,
fees, and charges shall accrue exclusively to the local governments. Meaning, local
government units vested with the power to levy taxes and raise their own revenue. This
is to ensure local autonomy. Which means, that is self-executing. There is no need of
legislation to implement that provision of law. Should there be any provisions of law
that relates to this power to tax by LGU, it’s more of limiting the exercise of the power
because it is now expressly provided by the Constitution.

Talking about local autonomy, take note that in local autonomy there is no complete or
absolute independence of the LGU from the national government. What is decentralized
is merely administration. What is behold is only services and there is no transfer of
powers. There cannot be a State within a State, still LGU are dependent upon the
national government. Nonetheless, to ensure their autonomy, (1.) we have the
sources of income assured such as the power to tax and (2.), they have a
share in the national taxes that they have remitted to the national
government, called the Internal Revenue Allotment (IRA). Once the amount is
determined, there is no but nor if, it should be automatically released to the LGU, that is
IRA. Third (3), there is this share also of the LGU from the funds that may
have been earned through the exploration of the natural resources in the
place under the territorial jurisdiction of the LGU. That is 40% of the
income.

There is a recent decision on that, involving Malampaya, where there is the exploration
of the petroleum. The Province of Palawan demanded for a share however was refused
by the Department of Energy, which represents the national government. The Supreme
Court said that this province has the right to a share equivalent to at least 40% of the
income. Those are the sources of the revenue to ensure local autonomy.

[Alternative Decision: The province cited the Constitution and the Local Government
Code in laying claim to earnings of Malampaya, a deep-water natural gas facility off
the coast of Palawan.

The national government, on the other hand, argued that Malampaya is outside
Palawan’s 15-kilometer municipal waters, hence, it is part of the national territory.
All revenues should, therefore, go to the national coffers. Note: Do not use this reason
since this was not the decision provided by the teacher, this is for information
purposes only. ]

Another important matter on LGU is the term of Office. What is the term of office? It is
fixed by the Constitution, therefore, Congress cannot change it, except Barangay
elections. All the LGU, the term of office is fixed by the Constitution which is 3 years but
shall in no case be more than 3 successive terms (master this). Take note of the cases of
Borja vs COMELEC; Aldovino vs COMELEC; Ong vs Alegre; Lonzanida vs COMELEC;
Bolos vs COMELEC; Socrates vs COMELEC; Adormeo vs COMELEC.

Example 1: A vice mayor becomes mayor by reason of the death of the incumbent, in
the next election, he ran and he won and he became a mayor for the second time. And
then in the next election again, he ran and he won the elections. That was his third term
as the mayor in the locality. And then another election was held, he ran, however, his
election was questioned, because allegedly he is disqualified as he has already served for
more than 3 successive terms. Is that correct? The answer is No, because the first term
was not by election. Not counted because by succession. What is prohibited is successive
election. This is what happened in the case of Borja vs COMELEC.

Borja vs COMELEC

Private respondent Jose T. Capco, Jr. was previously elected vice-mayor of Pateros. He
became mayor, by operation of law, upon the death of the incumbent, Cesar Borja. On
May 11, 1992, he ran and was elected mayor for a term of three years. On May 8, 1995,
he was reelected mayor for another term of three years.

On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor
of Pateros relative to the May 11, 1998 elections. Petitioner Benjamin U. Borja, Jr., who
was also a candidate for mayor, sought Capco’s disqualification on the theory that the
latter would have already served as mayor for three consecutive terms by June 30, 1998
and would therefore be ineligible to serve for another term after that.

In both the Constitution and the Local Government Code, the three-term limitation
refers to the term of office for which the local official was elected. It made no reference
to succession to an office to which he was not elected. In the case before the
Commission, respondent Capco was not elected to the position of mayor in the January
18, 1988 local elections. He succeeded to such office by operation of law and served for
the unexpired term of his predecessor. Consequently, such succession into office is not
counted as one (1) term for purposes of the computation of the three-term limitation
under the Constitution and the Local Government Code.

The case of succession for the vice-mayor to mayor is different from all other official
succession. Under the local Government Code, he is the presiding officer of the
sanggunian and he appoints all officials and employees of such local assembly. He has
distinct powers and functions, succession to mayorship in the event of vacancy therein
being only one of them. It cannot be said of him, as much as of the Vice-President in the
event of a vacancy in the Presidency, that in running for vice-mayor, he also seeks the
mayorship. His assumption of the mayorship in the event of vacancy is more a matter of
chance than of design. Hence, his service in that office should not be counted in the
application of any term limit.

To recapitulate, 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.

Other Analogous Situation in connection to Borja vs COMELEC Case

Case No. 1. Suppose A is a vice-mayor who becomes mayor by reason of the death of
the incumbent. Six months before the next election, he resigns and is twice elected
thereafter. Can he run again for mayor in the next election?

Yes, because although he has already first served as mayor by succession and
subsequently resigned from office before the full term expired, he has not actually
served three full terms in all for the purpose of applying the term limit. Under Art. X, 8,
voluntary renunciation of the office is not considered as an interruption in the
continuity of his service for the full term only if the term is one for which he was elected.
Since A is only completing the service of the term for which the deceased and not he was
elected. A cannot be considered to have completed one term. His resignation constitutes
an interruption of the full term.

Case No. 2. The case of vice-mayor C who becomes mayor by succession involves a
total failure of the two conditions to concur for the purpose of applying Art. X. Suppose
he is twice elected after that term, is he qualified to run again in the next election?

Yes, because he was not elected to the office of the mayor in the first term but simply
found himself thrust into it by operation of law. Neither had he served the full term
because he only continued the service, interrupted by the death, of the deceased mayor.

To consider C in the third case to have served the first term in full and therefore
ineligible to run a third time for reelection would be not only to falsify reality but also to
unduly restrict the right of the people to choose whom they wish to govern them. If the
vice-mayor turns out to be a bad mayor, the people can remedy the situation by simply
not reelecting him for another term. But if, on the other hand, he proves to be a good
mayor, there will be no way the people can return him to office (even if it is just the third
time he is standing for reelection) if his service of the first term is counted as one of the
purpose of applying the term limit.

To consider C as eligible for reelection would be in accord with the understanding of the
Constitutional Commission that while the people should be protected from the evils that
a monopoly of political power may bring about, care should be taken that their freedom
of choice is not unduly curtailed.
Example 2: First he ran and won the election. Second, he ran and won the election, the
third, he ran and won the election but he was placed under preventive suspension by the
President or by the Office of the Ombudsman. So he has not fully served the third term,
minus 6 months preventive suspension issued by the Ombudsman on his third year.
This is supposed to be the third year of his third term but got suspended, so the term
expired but he had gone a preventive suspension, so in the next election, he ran and
won. Is he qualified or disqualified? Disqualified, because that was the 4 th term already
as Mayor. The preventive suspension does not interrupt the successiveness of the term.
While he may not have completed the third term, but because he still connected with the
office, you cannot be suspended if you are not connected with the office, then there has
been no interruption. The term is continuing, continuous. So when he ran and won in
the 4th election, he is disqualified. Will your answer be the same if he instead resigned?
He did not finish one of the terms. Answer is, yes. It would still be the same because
voluntary renunciation is not considered an interruption of his term of office. Even if he
had only served for one day of one of the terms, he is considered to have fully served the
3 years term, if it were a resignation. This is the case of Aldovino vs. COMELEC.

Aldovino vs. COMELEC

FACTS: The respondent Wilfredo F. Asilo was elected councilor of Lucena City for
three consecutive terms. During his 2004-2007 term of office, the Sandiganbayan
preventively suspended him for 90 days in relation with a criminal case he then faced.
This Court, however, subsequently lifted the Sandiganbayan’s suspension order; hence,
he resumed performing the functions of his office and finished his term.

In the 2007 election, Asilo filed his certificate of candidacy for the same position. The
petitioners Simon B. Aldovino, Jr., Danilo B. Faller, and Ferdinand N. Talabong (the
petitioners) sought to deny due course to Asilos certificate of candidacy or to cancel it on
the ground that he had been elected and had served for three terms; his candidacy for a
fourth term therefore violated the three-term limit rule under Section 8, Article X of the
Constitution and Section 43(b) of RA 7160.

ISSUE: Whether Asilo’s preventive suspension constituted an interruption that allowed

him to run for a 4th term.

RULING: Preventive suspension whether under the Local Government Code, the Anti-
Graft and Corrupt Practices Act, or the Ombudsman Act is an interim remedial measure
to address the situation of an official who have been charged administratively or
criminally, where the evidence preliminarily indicates the likelihood of or potential for
eventual guilt or liability.

Notably 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. Thus, while a temporary incapacity in the
exercise of power results, no position is vacated when a public official is preventively
suspended. This was what exactly happened to Asilo.

Preventive suspension, by its nature, is a temporary incapacity to render service during

an unbroken term; in the context of term limitation, interruption of service occurs after
there has been a break in the term.

Preventive suspension, because it is imposed by operation of law, does not involve a

voluntary act on the part of the suspended official, except in the indirect sense that he
may have voluntarily committed the act that became the basis of the charge against him.
From this perspective, preventive suspension does not have the element of voluntariness
that voluntary renunciation embodies. Neither does it contain the element of
renunciation or loss of title to office as it merely involves the temporary incapacity to
perform the service that an elective office demands.

Asilo’s 2004-2007 term was not interrupted by the Sandiganbayan-imposed preventive

suspension in 2005, as preventive suspension does not interrupt an elective official’s
term. Thus, the COMELEC refused to apply the legal command of Section 8, Article X of
the Constitution when it granted due course to Asilo’s certificate of candidacy for a
prohibited fourth term. By so refusing, the COMELEC effectively committed grave abuse
of discretion amounting to lack or excess of jurisdiction; its action was a refusal to
perform a positive duty required by no less than the Constitution and was one
undertaken outside the contemplation of law.

Example 3: What if for example, the first time, he ran and won the election, second
time, he ran and won, the third time, he ran and won. The fourth election, he did not
anymore run but during the incumbency of the new mayor, a recall election was called
and ran during the recall election against the incumbent mayor. Is he qualified to run as
mayor again in the recall election? Answer is YES, because there was already an
interruption when did not run during the 4th election. The recall is practically the 5 th
election which he ran and therefore an interruption was already established. You can
have more than 3 terms as long as it is successive 3 terms.

CASES RELATED TO EXAMPLE 3

Socrates vs COMELEC (Consolidated Cases)

FACTS: Incumbent barangay officials of the Puerto Princesa convened themselves into
a Preparatory Recall Assembly at the Gymnasium of Barangay San Jose. The PRA was
convened to initiate the recall of Victorino Dennis M. Socrates who assumed office as
Puerto Princesa’s mayor. The members of the PRA designated Mark David M.
Hagedorn, president of the Association of Barangay Captains, as interim chair of the
PRA.

The PRA passed Recall Resolution No. 01-02 which declared its loss of confidence in
Socrates and called for his recall. The PRA requested the COMELEC to schedule the
recall election for mayor. Subsequently, Edward M. Hagedorn filed his certificate of
candidacy for mayor in the recall election.

Petitions were consequently filed against Hagedorn alleging substantially the same facts
and involving the same issues. The petitions were all anchored on the ground that
Hagedorn is disqualified from running for a fourth consecutive term, having been
elected and having served as mayor of the city for three (3) consecutive full terms
immediately prior to the instant recall election for the same post.

ISSUE: Whether Hagedorn is qualified to run for mayor in the recall election of Puerto
Princesa.

RULING: What the Constitution prohibits is an immediate reelection for a fourth term
following three consecutive terms. The Constitution, however, does not prohibit a
subsequent reelection for a fourth term as long as the reelection is not immediately after
the end of the third consecutive term. A recall election mid-way in the term following
the third consecutive term is a subsequent election but not an immediate reelection after
the third term.

In the case of Hagedorn, his candidacy in the recall election on is not an immediate
reelection after his third consecutive term. The immediate reelection that the
Constitution barred Hagedorn from seeking referred to the regular elections in 2001.
Hagedorn did not seek reelection in the 2001 elections. After Hagedorn ceased to be
mayor on June 30, 2001, he became a private citizen until the recall election when he
won over his closest opponent, Socrates.

The period where Hagedorn was simply a private citizen is clearly an interruption in the
continuity of Hagedorn’s service as mayor, not because of his voluntary renunciation,
but because of a legal prohibition. Hagedorn’s new recall term from September 24, 2002
to June 30, 2004 is not a seamless continuation of his previous three consecutive terms
as mayor.

We hold that Hagedorn is qualified to run in the recall election for mayor of Puerto
Princesa because:

1. Hagedorn is not running for immediate reelection following his three consecutive
terms as mayor;

2. Hagedorn's continuity of service as mayor was involuntarily interrupted during which

time he was a private citizen;

3. Hagedorn's recall term cannot be made to retroact to make a fourth consecutive term
because factually the recall term is not a fourth consecutive term; and

4. Term limits should be construed strictly to give the fullest possible effect to the right
of the electorate to choose their leaders.
Adormeo vs COMELEC

FACTS: Petitioner and private respondent were the only candidates who filed their
certificates of candidacy for mayor of Lucena City in the May 14, 2001 elections. Private
respondent was then the incumbent mayor.

Private respondent Talaga, Jr. was elected mayor in 1992 then again in 1995-1998. In
the election of 1998, he lost to Bernard G. Tagarao. In the recall election of May 12,
2000, he again won and served the unexpired term of Tagarao until June 30, 2001.

On March 2, 2001, petitioner filed with the Office of the Provincial Election Supervisor,
Lucena City a Petition to Deny Due Course to or Cancel Certificate of Candidacy and/or
Disqualification of Ramon Y. Talaga, Jr., on the ground that the latter was elected and
had served as city mayor for three (3) consecutive terms as follows: (1) in the elections of
May 1992 and 1995 and in the recall election of May 12, 2000. Petitioner contended that
Talaga’s candidacy as Mayor constituted a violation of Section 8, Article X of the 1987
Constitution

ISSUE: Was private respondent disqualified to run for mayor of Lucena City in the May
14, 2001 elections?

RULING: The COMELEC en banc ruled in favor of private respondent Ramon Y.

Talaga, Jr. It reversed the First Divisions ruling and held that 1) respondent was not
elected for three (3) consecutive terms because he did not win in the May 11, 1998
elections; 2) that he was installed only as mayor by reason of his victory in the recall
elections; 3) that his victory in the recall elections was not considered a term of office
and is not included in the 3-term disqualification rule, and 4) that he did not fully serve
the three (3) consecutive terms, and his loss in the May 11, 1998 elections is considered
an interruption in the continuity of his service as Mayor of Lucena City.

COMELECs ruling that private respondent was not elected for three (3) consecutive
terms should be upheld. For nearly two years he was a private citizen. The continuity of
his mayorship was disrupted by his defeat in the 1998 elections.

Patently untenable is petitioner’s contention that COMELEC in allowing respondent

Talaga, Jr. to run in the May 1998 election violates Article X, Section 8 of 1987
Constitution. To bolster his case, respondent adverts to the comment of Fr. Joaquin
Bernas, a Constitutional Commission member, stating that in interpreting said
provision that if one is elected representative to serve the unexpired term of another,
that unexpired, no matter how short, will be considered one term for the purpose of
computing the number of successive terms allowed.

As pointed out by the COMELEC en banc, Fr. Bernas comment is pertinent only to
members of the House of Representatives. Unlike local government officials, there is no
recall election provided for members of Congress.
Example 4: First time, he won. Second time, he won. The third time he was
disqualified at the middle of his third term. He was removed. In the 4 th election he ran.
Is he qualified? Yes. He was qualified because there was an interruption in the third
election when he was disqualified. It was not voluntary on his part when he stepped
down as mayor as he was disqualified. He was ousted. There was an interruption of the
successiveness of the term. (Master all these: Successiveness of the Term of Office). This
is the case of Lonzanida vs COMELEC.

Lonzanida vs COMELEC

FACTS: The petitioner was previously elected and served two consecutive terms as
mayor of San Antonio Zambales prior to the May 1995 mayoral elections. In the May
1995 elections he again ran for mayor of San Antonio, Zambales and was proclaimed
winner. He assumed office and discharged the rights and duties of mayor until March
1998 when he was ordered to vacate the post by reason of the COMELEC decision dated
November 13, 1997 on the election protest against the petitioner which declared his
opponent Juan Alvez, the duly elected mayor of San Antonio. Alvez served the
remaining portion of the 1995-1998 mayoral term.

ISSUE: Whether petitioner Lonzanida’s assumption of office as mayor of San Antonio

Zambales from May 1995 to March 1998 may be considered as service of one full term
for the purpose of applying the three-term limit for elective local government officials

RULING: The two requisites for the application of the three term rule are absent. First,
the petitioner cannot be considered as having been duly elected to the post in the May
1995 elections, and second, the petitioner did not fully serve the 1995-1998 mayoral
term by reason of involuntary relinquishment of office. After a re-appreciation and
revision of the contested ballots the COMELEC itself declared by final judgment that
petitioner Lonzanida lost in the May 1995 mayoral elections and his previous
proclamation as winner was declared null and void. His assumption of office as mayor
cannot be deemed to have been by reason of a valid election but by reason of a void
proclamation. It has been repeatedly held by this court that a proclamation
subsequently declared void is no proclamation at all and while a proclaimed candidate
may assume office on the strength of the proclamation of the Board of Canvassers he is
only a presumptive winner who assumes office subject to the final outcome of the
election protest. Petitioner Lonzanida did not serve a term as mayor of San Antonio,
Zambales from May 1995 to March 1998 because he was not duly elected to the post; he
merely assumed office as presumptive winner, which presumption was later overturned
by the COMELEC when it decided with finality that Lonzanida lost in the May 1995
mayoral elections.

Second, the petitioner cannot be deemed to have served the May 1995 to 1998 term
because he was ordered to vacate his post before the expiration of the term. The
respondents contention that the petitioner should be deemed to have served one full
term from May 1995-1998 because he served the greater portion of that term has no
legal basis to support it; it disregards the second requisite for the application of the
disqualification, i.e., that he has fully served three consecutive terms. The second
sentence of the constitutional provision under scrutiny states, Voluntary renunciation of
office for any length of time shall not be considered as an interruption in the continuity
of service for the full term for which he was elected. The clear intent of the framers of
the constitution to bar any attempt to circumvent the three-term limit by a voluntary
renunciation of office and at the same time respect the people’s choice and grant their
elected official full service of a term is evident in this provision. Voluntary renunciation
of a term does not cancel the renounced term in the computation of the three term limit;
conversely, involuntary severance from office for any length of time short of the full
term provided by law amounts to an interruption of continuity of service. The petitioner
vacated his post a few months before the next mayoral elections, not by voluntary
renunciation but in compliance with the legal process of writ of execution issued by the
COMELEC to that effect. Such involuntary severance from office is an interruption of
continuity of service and thus, the petitioner did not fully serve the 1995-1998 mayoral
term.

Bolos vs COMELEC

FACTS: For three consecutive terms, petitioner was elected to the position of Punong
Barangay of Barangay Biking, Dauis, Bohol in the Barangay Elections held in 1994, 1997
and 2002.

In May 2004, while sitting as the incumbent Punong Barangay of Barangay Biking,
petitioner ran for Municipal Councilor of Dauis, Bohol and won. He assumed office as
Municipal Councilor on July 1, 2004, leaving his post as Punong Barangay. He served
the full term of the Sangguniang Bayan position, which was until June 30, 2007.
Thereafter, petitioner filed his Certificate of Candidacy for Punong Barangay of
Barangay Biking, Dauis, Bohol in the October 29, 2007 Barangay and Sangguniang
Kabataan Elections.

Respondent Rey Angeles Cinconiegue, the incumbent Punong Barangay and candidate
for the same office, filed before the COMELEC a petition for the disqualification of
petitioner as candidate on the ground that he had already served the three-term limit.

ISSUE: Whether or not there was voluntary renunciation of the Office of Punong
Barangay by petitioner when he assumed office as Municipal Councilor so that he is
deemed to have fully served his third term as Punong Barangay, warranting his
disqualification from running for the same position in the October 29, 2007 Barangay
and Sangguniang Kabataan Elections

RULING: David v. Commission on Elections elucidates that the Constitution did not
expressly prohibit Congress from fixing any term of office for barangay officials, thereby
leaving to the lawmakers’ full discretion to fix such term in accordance with the
exigencies of public service. The discussions in the Constitutional Commission showed
that the term of office of barangay officials would be [a]s may be determined by law, and
more precisely, [a]s provided for in the Local Government Code. Section 43(b) of the
Local Government Code provides that barangay officials are covered by the three-term
limit, while Section 43(c) thereof states that the term of office of barangay officials shall
be five (5) years.

In this case, it is undisputed that petitioner was elected as Punong Barangay for three
consecutive terms, satisfying the first condition for disqualification. What is to be
determined is whether petitioner is deemed to have voluntarily renounced his position
as Punong Barangay during his third term when he ran for and won as Sangguniang
Bayan member and assumed said office.

The Supreme Court agrees with the COMELEC, it found that Nicasio Bolos, Jr.s
relinquishment of the office of Punong Barangay of Biking, Dauis, Bohol, as a
consequence of his assumption to office as Sangguniang Bayan member of Dauis, Bohol,
on July 1, 2004, is a voluntary renunciation

Indeed, petitioner was serving his third term as Punong Barangay when he ran for
Sangguniang Bayan member and, upon winning, assumed the position of Sangguniang
Bayan member, thus, voluntarily relinquishing his office as Punong Barangay which the
Court deems as a voluntary renunciation of said office. Petitioner erroneously argues
that when he assumed the position of Sangguniang Bayan member, he left his post as
Punong Barangay by operation of law; hence, he did not fully serve his third term as
Punong Barangay.

The term operation of law is defined by the Philippine Legal Encyclopedia as a term
describing the fact that rights may be acquired or lost by the effect of a legal rule without
any act of the person affected. Black's Law Dictionary also defines it as a term that
expresses the manner in which rights, and sometimes liabilities, devolve upon a person
by the mere application to the particular transaction of the established rules of law,
without the act or cooperation of the party himself.

An interruption in the service of a term of office, by operation of law, is exemplified in

Montebon v. Commission on Elections, the respondent therein, Sesinando F.
Potencioso, Jr., was elected and served three consecutive terms as Municipal Councilor
of Tuburan, Cebu in 1998-2001, 2001-2004, and 2004-2007. However, during his
second term, he succeeded as Vice-Mayor of Tuburan due to the retirement of the Vice-
Mayor pursuant to Section 44 of R.A. No. 7160. Potencioso’s assumption of office as
Vice-Mayor was considered an involuntary severance from his office as Municipal
Councilor, resulting in an interruption in his second term of service. The Court held that
it could not be deemed to have been by reason of voluntary renunciation because it was
by operation of law. Hence, Potencioso was qualified to run as candidate for municipal
councilor of the Municipality of Tuburan, Cebu in the May 14, 2007 Synchronized
National and Local Elections.

In this case, petitioner did not fill in or succeed to a vacancy by operation of law. He
instead relinquished his office as Punong Barangay during his third term when he won
and assumed office as Sangguniang Bayan member of Dauis, Bohol, which is deemed a
voluntary renunciation of the Office of Punong Barangay.
Ong vs Alegre. In the Ong case, he ran and won during the first term. Then, second
term, he ran and won but under protest. He was still able to assume and stay in office
because the decision of the protest was released at the end of the term where Ong is
already starting to serve the third term. The 4 th term he ran again but disqualified
because of the three-term limit. Ong, argued that he did not serve the second term
because he was only a presumptive winner in 1998 election. The Supreme Court said,
Ong's proclamation by the Municipal Board of Canvassers of San Vicente as the duly
elected mayor in the 1998 mayoralty election coupled by his assumption of office and his
continuous exercise of the functions thereof from start to finish of the term, should
legally be taken as service for a full term in contemplation of the three-term rule.

In the case of the Maguindanao Federation of Autonomous Irrigators Association vs

Senate. In the Maguindanao case, the terms of Office of the officers in the Province of
Maguindanao expired but because of the problem in peace and order in the place and
secondly, according to Congress, there are no funds for the election, the election was
postponed. A law was passed postponing the election in Maguindanao, following the
massacre in Maguindanao. What Congress did, according to the law, since their terms
already expired, the officers will have to serve as such, in effect, extending their terms. Is
that valid? Take note that Congress cannot extend the terms of Office. What cannot be
done directly, cannot be done indirectly by Congress through the postponement of an
Election for Local Elective Officials and allowing them to hold on to their office. There is
no question that their term had already expired and therefore automatically, they should
have stepped down as local officials. The question now, who are going to replace them?
As part of the supervision power of the President, this is now the power of the President
to appoint an officer-in-charge, that’s the remedy, and not to allow the incumbent
officials to hold on to their office, because that would result to extending the term, which
Congress does not have the power. The President has the discretion now whether or not
to retain the previous officials or appoint somebody else to perform the functions and
act as the officer-in-charge.

Congress cannot extend the term of office of these local elective officials.

Excerpt from MFAIA vs Senate

We rule out the first option holdover for those who were elected in executive and
legislative positions in the ARMM during the 2008-2011 term as an option that
Congress could have chosen because a holdover violates Section 8, Article X of the
Constitution. This provision states:

Section 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law, shall be three years and no such official shall serve for more
than three consecutive terms.

Since elective ARMM officials are local officials, they are covered and bound by the
three-year term limit prescribed by the Constitution; they cannot extend their term
through a holdover.
It is not competent for the legislature to extend the term of officers by providing that
they shall hold over until their successors are elected and qualified where the
constitution has in effect or by clear implication prescribed the term and when the
Constitution fixes the day on which the official term shall begin, there is no legislative
authority to continue the office beyond that period, even though the successors fail to
qualify within the time.

If it will be claimed that the holdover period is effectively another term mandated by
Congress, the net result is for Congress to create a new term and to appoint the occupant
for the new term. This view like the extension of the elective term is constitutionally
infirm because Congress cannot do indirectly what it cannot do directly, i.e., to act in a
way that would effectively extend the term of the incumbents. Indeed, if acts that cannot
be legally done directly can be done indirectly, then all laws would be illusory. Congress
cannot also create a new term and effectively appoint the occupant of the position for
the new term. This is effectively an act of appointment by Congress and an
unconstitutional intrusion into the constitutional appointment power of the President.
Hence, holdover whichever way it is viewed is a constitutionally infirm option that
Congress could not have undertaken

The above considerations leave only Congress chosen interim measure RA No. 10153
and the appointment by the President of OICs to govern the ARMM during the pre-
synchronization period pursuant to Sections 3, 4 and 5 of this law as the only measure
that Congress can make.

Section 16. The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other
public ministers and consuls or officers of the armed forces from the rank of colonel or
naval captain, and other officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the appointment of other
officers lower in rank in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.

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

Since the President’s authority to appoint OICs emanates from RA No. 10153, it falls
under the third group of officials that the President can appoint pursuant to Section 16,
Article VII of the Constitution. Thus, the assailed law facially rests on clear
constitutional basis.

Article 11 ACCOUNTABILITY OF PUBLIC OFFICE

Memorize Section 1: Public office is a public trust. Public officers and employees
must, at all times, be accountable to the people, serve them with utmost responsibility,
integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives.
The officials in the government are always accountable to the people. To make the
officials accountable, there are mechanisms.
1. Impeachment – a method of removing high ranking officials before the term
expires. Purpose: to ensure the highest care in their indictment and conviction
and the imposition of special penalties in case of a finding of guilt, taking into
account the degree or nature of the offense committed and the high status of the
wrong-doers.
Impeachable Officers:
1. President of the Philippines
2. The Vice-President
3. The members of the Supreme Court
4. Members of the Constitutional Commission
5. The Ombudsman

Grounds for Impeachment

1. Culpable violation of the Constitution
2. Treason
3. Bribery
4. Other High Crimes
5. Graft and Corruption
6. Betrayal of Public Trust

Question, among the 6 grounds, is there “failure to file Statement of Assets and
Liabilities” as a ground for impeachment? The answer is NO. But why was CJ Corona
impeached? The answer is due to his erroneous or incorrect entries of his assets and
income in Statement of Assets and Liabilities. It was considered as a betrayal of public
trust. It was not on the statement per se, it was basis of them considering him to have
violated the betrayal of public trust. Indirectly but directly because SALN failure is not,
although statutorily or constitutionally required, a ground for impeachment.

Question, in the case of Republic vs Sereno (read the case), May 11, 2018. (Another
question in the final Exam). Sereno was not impeached, she was removed from office
through a petition for quo warranto. What is the difference between a petition for quo
warranto and impeachment? In a petition for quo warranto, the reason for the removal
was that there was lack of qualifications. In impeachment, it is on the assumption that
the officer is qualified but he/she violated any of those 6 grounds for impeachment. It is
more of a liability after she has been considered qualified. What happened to Sereno was
that, it was not a removal through impeachment, it was a removal through a petition for
quo warranto. Why was she petitioned for quo warranto? Because of her failure to
submit her Statements of Assets and Liabilities for a period of 10 years which is required
not only by the Constitution but also by Statute. In fact, it was required of her by the
JBC. That was not per se the reason for her disqualification, it was the basis for her
being considered to have lack the requisite INTEGRITY. Under the Constitution, to be
appointed as Justice of the Supreme Court or a judge of the lower court, one must have
proven: COMPETENCE, INDEPENDENCE, PROBITY and INTEGRITY. Integrity is one
of the qualifications to be a justice of the Supreme Court. The Supreme Court said, the
failure to submit requisite Statement of Assets and Liabilities is proof that she lacks
integrity. That is why she was disqualified.

Non-compliance with the SALN requirement indubitably reflects on a person’s integrity.

It is not merely a trivial or a formal requirement, the contention that the mere non-filing
does not affect Sereno’s integrity does not persuade considering that R.A. 6713 and R.A.
3019 are malum prohibitum, not malum in se, that is the omission or commission of
that acts expressly forbidden by law.
Sereno chronically failed to file her SALN and thus violated the constitution, the rule
and code of judicial conduct. Because she failed to properly and promptly file her SALN
in violation of the constitution and statutory requirements, it would likewise amount to
dishonesty if the same is attended by malicious intent to conceal the truth or make false
statements. Due to the suspicious circumstances regarding on her SALN, she committed
dishonesty, betraying her lack of integrity, honesty and probity. The Supreme Court
does not hesitate to impose the supreme penalty of dismissal against public officials
whose SALN’s were found to have contained discrepancies, inconsistencies and non-
disclosure. Sereno, failed to submit the required SALN, to qualify for nomination
pursuant to the JBC rule. Because of that, she was dismissed for lack of qualification.
Here, it reflected dishonesty on her part if not the lack of integrity.

Process of Impeachment. Who initiates the impeachment proceedings? Answer: Any

person, in a verified complaint, filed an impeachment in the House of the
Representatives (HOR) which has to be endorsed by a member of the HOR. If he is a
member of the HOR, there is no need of endorsement. The moment that complaint is
filed and it is referred to the Committee on Justice, then the impeachment proceedings
is DEEMED INITIATED. It is important that you should know when the impeachment
proceedings is deemed initiated, because there is only ONE impeachment initiation in a
year. There is 1 year bar rule. The 1 year bar rule states that you can only initiate
impeachment proceedings ONCE a year.

If it would 1/3 of the members of the HOR who are going to sign the verified complaint,
that will no longer be referred to the Committee on Justice immediately thereafter.
Automatically, there will be the preparation of the articles of impeachment which is like
an information that would be filed in the Senate and trial will follow.

Who are going to be the judges during the trial? It would be the members of the Senate,
presided by the President of the Senate, unless, the subject of the impeachment is the
President, where it will then be the Chief Justice of the Supreme Court to preside the
impeachment proceedings. To remove the impeachable official, take note that you will
need, 2/3 votes to convict him, otherwise, the complaint will be dismissed. All that is
needed for an impeachment proceedings to be initiated is the approval or a vote of 1/3 of
the members of the House of the Representatives and to convict the impeachable
official, you will need 2/3 votes of the members of the Senate.

As for the rest to the officials of the government, it is the Office of the Ombudsman that
will make them accountable. The office of the Ombudsman can investigate any
government official and employee. There are two kinds of investigations that the
Ombudsman might conduct. There is administrative investigation and there is criminal
investigation.

In the administrative investigation, the ombudsman will act as a judge. Any public
official if found guilty can be punished ranging a penalty from REPRIMAND,
SUSPENSION, FINE or DISMISSAL from Service. It is the Ombudsman who will
determine the innocence or guilt of the respondent public employee or official. When
the Ombudsman conducts a criminal investigation, the ombudsman acts like fiscal. The
Ombudsman determine probable cause to file a case in court. If he is high ranking and
there is probable cause, the case will be filed in the Sandigangbayan. The
Sandigangbayang therefore, is not part of the Office of the Ombudsman, because it is a
Court under the Supreme Court. For low ranking officials, the accused will be under the
jurisdiction of the regular courts (MTC, MTCC, MCTC, RTC) depending of the penalties.
Going back to the administrative investigation, who are the officials or employees can be
investigated? As a rule, all who are receiving salary, except: Impeachable officials
because they can only be removed through impeachment; Congressmen, because only
the concern house can discipline them; All employees of the judiciary because they
are subject to the exclusive administrative supervision of the Supreme Court and
therefore only the SC can discipline them.

While the case is being investigated (administrative), a public official or employee can
be placed under preventive suspension for not more than 6 months. Temporarily, the
official may be removed from office while the ombudsman is investigating the case. If
found guilty, can the ombudsman implement the decision? The answer is YES. When
the penalty is dismissal from the Service, it is immediately executory and that would
disqualify you to run for a public office because dismissal has the attached accessory
penalty of public disqualification. This is the reason why Binay was not able to run for
Mayor in Makati because he was dismissed from Service.

What about the Condonation (this will come out in the exam)? Condonation will
absolve, exonerate a public official or employee for acts committed from the previous
term if re-elected. Example: If you were Mayor during the last term of Office, and the
Ombudsman investigated you and subsequently found you guilty, and the penalty was
dismissal or suspension from Office. The penalty was not served because he was re-
elected. His re-election means that he has been absolved from his acts or commission
during the previous term. This mean that his re-election could mean that the people
believed in his innocence or that the people have forgiven him. His liability from acts
committed from the previous term has been condoned.

The Supreme Court said the case of the Ombudsman vs CA, Nov. 10, 2015, this principle
(Pascual Case), has no legal basis. That is why the Supreme Court reversed its decision
and abolished the concept of condonation. Condonation has no retroactive application,
only prospective application. The Supreme Court, for local elected officials, the grounds
to discipline, suspend or remove an elected local official from office are stated in Section
60 of R.A. 7160, otherwise known as the Local Government Code which was approved
on Oct. 10, 1991 and took effect on Jan. 1, 1992. Reading the 1987 Constitution together
with the provisions mentioned earlier, has lead the Supreme Court to the conclusion
that the doctrine of moderation is actually bereft of legal basis. Now, the Condonation
Doctrine has now been abandoned and should be applied prospectively. Meaning, the
doctrine has now been abandoned, your liabilities from the previous term will no longer
be obliterated even if you have been re-elected. Meaning to say, if you have been
disqualified or dismissed from service you cannot be re-elected. If you are suspended
and then you have been re-elected, you still have to pay, equivalent to the amount of the
number days of your suspension. No more condonation. Administrative liability will
still remain and effective despite your term having already expired or otherwise you are
no longer connected with the office or otherwise you have been elected to office. This
doctrine applies only to those who have been convicted on November 10, 2015. Hence,
condonation doctrine applies to complaint filed before Nov. 10, 2015. The decision in
the Binay case only applies prospectively.

Remember that the administrative authority of the Ombudsman overall officials is not
exclusive because this is concurrent with the Civil Service Commission (CSC) also
concurrent with the administrative bodies that these employees of the government are
connected.

In a criminal investigation, the ombudsman will act as fiscal. This power of the
ombudsman is not exclusive, this is concurrent with the DOJ. Meaning, if you file a
malversation case against a public official, you can file it with the prosecutor’s office, you
don’t have to file it directly to the office of the ombudsman. Can the Department of
Justice conduct a Preliminary Investigation? Answer is YES. But if such public official is
triable with the Sandigangbayan for the reason that he is a high ranking official, the
fiscal’s resolution will need the signature of the Ombudsman. The corresponding
information filed against the high ranking official in the Sandigangbayan must likewise
have the signature of the Ombudsman, otherwise, the information that is filed against
that public official in the Sandigangbayan will be quashable because it is invalid, having
been filed without authority.

Question: Who prosecute cases in the Sandigangbayan? Answer: The Special

Prosecutor. In the lower courts who prosecute the case, it would be the Ombudsman
prosecutor or the fiscal, who may be delegated with the power. Who determines whether
the accused is guilty or not? It is not the ombudsman, it is the court.

Question: Can the Deputy Ombudsman be removed by the President? Answer: NO.
Because it will undermine the independence of the Office of the Ombudsman. Can the
Special Prosecutor be removed by the President? Answer: YES. Because the requirement
of independence to be maintained does not apply to the Office of the Special Prosecutor.

Article 12: National Economy and Patrimony

Regalian Doctrine – All lands and mineral resources belong to the State. Basically, the
Regalian Doctrine states that all lands and mineral resources belong to the State.

Question: Your land but owned by the government. Originally, YES, it was owned by
State. This is because of the Regalian Doctrine. This pertains to the authority of the King
of Spain overall lands and mineral resources base on conquest. Before, nobody owns a
land, everything was owned by the King of Spain. Even before that, nobody owns the
land, the Barangays own the land as managed by barangay captain, datu, or rajah or a
confederation owned in common and not individual. When the colonizers came,
ownership was on the basis of discovery and occupation—All in the name of the King of
Spain, except for those places not conquered by the Spaniards. The lands owned by the
Indigenous people are the exception of the Regalian doctrine. They belong to them in
their private capacity. These are private lands under a native title. They have never been
part of the public domain. Never been conquered by the Spaniards. This is the only
exception of the Regalian Doctrine.

What are the different kinds of Lands?

1. Agricultural Lands
2. Mineral Lands
3. Timber Lands
4. National Parks

Only agricultural lands are alienable and disposable, which can be bought or sold, the
other three are considered beyond the commerce of man which cannot be subjected to a
contract or disposition.

Agricultural land is a classification referring to lands that can be acquired by private

individuals.

Question: Who may acquire agricultural lands? Answer: Only Filipino citizens. Can a
Filipino corporation agricultural lands? Answer: NO. How about a foreigner? Answer:
NO.

If it is only Filipino citizen only who can acquire agricultural lands, is there any limit?
Answer: Yes, there is. 12 hectares only. How about a Filipino Corporation? Answer: It
may only lease, it cannot purchase. It can only lease. Private corporations or
associations may not hold such alienable lands of the public domain except by lease, for
a period not exceeding twenty-five years, renewable for not more than twenty-five years,
and not to exceed one thousand hectares in area.

How about the Filipino citizens? Citizens of the Philippines may lease not more than five
hundred hectares for a period not exceeding twenty-five years, renewable for not more
than twenty-five years, or acquire not more than twelve hectares thereof, by purchase,
homestead, or grant.

How about foreshore lands (strip off land that lies between the high and low water
marks and that is alternatively wet and dry according to the flow of the tide ) or
reclaimed lands (land that was previously under the sea)? How do you classify them?
Are they lands of public domains? Yes. Are they agricultural lands? No. They are still
considered inalienable unless converted by law into Alienable and Disposable lands
(classified as Agricultural Lands) of the public domain. Once converted, it can only be
acquired by Filipino citizens. Example: Amari Lands. Amari Lands are reclaimed lands
by a corporation. Gusto nila ang ibayad nila sa reclamation sa corporation sa Amari
yuta nga ilahang na-reclaim. Ang gusto sa corporation nga nag-reclaim, pwede nga
bayaran nalang sila sa yuta. Now, how can they be compensated in terms of land when
they are a corporation? And these are lands of public domain because these are
reclaimed lands. Even if it is classified as Agricultural land, still it cannot be acquired by
a corporation. Take note in the case of Amari. The Supreme Court said, the moment the
land of public domain is acquired by a private individual, it becomes a private land.
Besides, a corporation has incorporators and directors, if they are Filipino citizens, they
can acquire lands in their personal capacity and the moment they acquire them, they
become private lands, now they can be sold to the corporation. Because a Filipino
corporation may now acquire private lands. There are two kinds of Lands. Lands of
Public Domain, only agricultural lands are inalienable. Second, the Private lands, owned
by private individuals, now may be acquired by a Filipino, Filipino corporation and by a
foreigner provided he is a compulsory heir in an intestate succession.

Instances when a foreigner can acquire a private land in the Philippines:

Example 1: A’s parents are both Filipinos. A is now a foreigner. A can inherit from his
parents who are Filipino Citizens.

Example 2: A was a former natural-born Filipino citizen. A is now a foreigner but came
back to the Philippines. A can acquire land for residential purposes at 3000 square
meters for Urban and 5000 square meters in rural areas. Limited only for residential
purposes.

Filipino Corporation can acquire private lands. Example: SRP. It is a reclaimed land but
it is not a land of public domain, it is a patrimonial private land of the Cebu City
government under a special patent. Because it is a private land, can a qualified Filipino
Corporation acquire it? Answer: YES. So, we have so many Corporations like
FILINVEST, Ayala, Big Foot (the first corporation to acquire a portion of SRP). They can
because it is a private land.

As to the rest of the land of public domain, they cannot be acquired by anyone. Example:
the case of Boracay Island. A big portion of Boracay Island is classified as timber land,
although there are no woody plants and only buildings. Building owners, applied for the
registration of title but it is not in their name because its classification is a timber land,
it is beyond the commerce of man. Supreme Court said, simply you have your building
there and you cannot see any woody plant, or woods or trees, does not make it less a
timber until you change the classification, it remains a timberland, hence inalienable for
being beyond the commerce of man.

Can it be re-classified? Answer: YES. There is a certification to the effect signifying that
such land should no longer be used for public purposes, that it can be re-classify as
agricultural, so that the person occupying the subject land will have a chance to acquire
the land by prescription and they can apply for registration of title.
Who can re-classify it? Only the President upon the recommendation of the DENR.
Another point, the natural resources found in your own land do not belong to you. If for
instance, there is petroleum or there is gold in your land, such natural resources belong
to the government. What the government can do is to lease your land in order to
explore, develop and utilize.

Example: Sigeg ulan, a lake was created in A’s backyard. Who owns the land around the
lake? It is A. Who owns the lake? The government. What you can do is enter a contract
with the government (if you are a citizen, or a Filipino corporation). What type of
contract that you can enter into for the exploration, development, and utilization of the
natural resources?

Type of Contracts
1. Joint Venture
2. Co-Production
3. Production Sharing

Only the government and the individual citizen or the government and Filipino
corporation that can enter into such contract. Foreign Corporation cannot enter into any
of the contracts mentioned.

What is allowable is the government to enter into a service contract, to provide financial
or technical assistance where the government is the employer and the foreigner is just
the mere laborer.

Read the case of LA BUGAL-BLAAN TRIBAL ASSOCIATION, INC vs RAMOS. Is it

constitutional if the Philippines and China would enter into a joint venture? Most
definitely it is unconstitutional because joint venture, involves two Filipino citizens. If
service contract, private corporation only. It does not involve a foreign state.

Question: Are the natural resources found in the lands of ancestral domain owned by
State? If they owned the lands under the native title. Answer: Same status as natural
resources found in private lands. They do not belong to the private owners. They belong
to the State. Therefore, the State has control over the utilization, exploration and
development these natural resources, but, because they are special, they are given
priority in so far as their exploration, development and utilization.

Foreigners can own private lands as long as they acquired the land through hereditary
succession or an intestate proceedings where the foreigner is a compulsory heir.

A Filipino Corporation is a corporation where the capital investment, 60% of which is

owned by Filipino citizens, 40% at maximum by foreigners. What is 60% investment or
ownership? It must be based on beneficial shares of stocks, meaning beneficial
ownership. It must be also under controlling interest, meaning, the 60% must be under
the voting interest, under which the Filipino owner can control and can vote.
In the case of Gamboa vs. Teves, the Supreme Court said, if we speak of 60% investment
by a Filipino as a minimum capital investment, to consider a corporation as a Filipino
Corporation, it must be that the shares of stocks are owned both, beneficial ownership
and voting rights or controlling rights, 60% of which is owned by Filipino Citizens.

In the case of PNBD, Malaysian Corporation practically owned 80% of the corporation.
While it appears that 60% shares of stocks are being owned by Filipino, but, these share-
owners do not possess voting right. The voting right was owned by the foreign
corporation, making 20% as only owned by Filipino in so far as Beneficial Ownership
and Voting Right are concerned. But the full control is vested to the foreign corporation,
which is prohibited under the constitution because of the requirement of 60-40 capital
investment. The same requirement is imposed upon educational institution (60-40),
unless, the Educational Institution is established by a religious group or mission board,
it could be that all capital is owned by foreigner, if the religious group belongs to a
foreign religious sector. Like they would establish a seminary, example the Korean-
established seminary. While it is being owned by all foreigners, but because the purpose
of this institution is religious, it is an accommodation by the State to religion. Therefore,
they can be owned 100% by a foreigner, because they belong to a foreigner or a mission
board.

We have Mass media outfit like ABS-CBN, GMA, broadcasting radio, the requirement is
not 60-40, it must be wholly owned by Filipino (100%). Advertising like fashion
magazine or corporation engaged in advertisements, the requirement is 70% should be
owned by Filipino, 30% (maximum) of which can be owned foreigner. Take note, the
management of the corporation, executive positions of the corporation must be all
Filipino citizens, under the control and supervision by Filipino Citizens. Example:
Educational institution, USC, 60% if which owned by Filipinos, the management and
executive positions must be Filipino Citizens. There was a time that the President was a
German-national (San Carlos, being of German origin), when the 1973 Constitution was
enacted, the management was replaced by Filipino Citizens. The Chairmen and Deans of
the different Departments and Colleges, must also be Filipino Citizens. In fact, USC
faced a controversy when it allowed a Nigerian-national SVD brother to chair the
College of Commerce. USC was sued for violating the constitution but it was justified by
San Carlos, because Nigerian-national SVD brother, was only acting chair. He was not
appointed to a regular position (part Filipinization of the areas of investment).

As for public utilities, generally it is 60-40, but in case of BOT (Build-Operate-Transfer

to government) 60-40 does not apply. BOTs are not part of public utilities. Who built
and operate the establishment? Answer: The foreign corporation. Foreign Corporation
shall operate until they will be able to get back what they have invested plus profits.
Thereafter, ownership will be transferred to the Government. This is the concept of
BOT.

The question now, is there a citizenship requirement. The answer is NO. This is not like
the public utilities, although the service is for the public for fees. Example: Grant of
passage through NLEX or SLEX upon payment of the toll fees. The Malaysian
Corporation built the NLEX and SLEX. This foreign corporation operates both express
ways so they can get back their investment. Another example, the MRT and LRT were
under the BOT before but they are being transferred to the government. It is now the
government that is operating these transit systems.

Going back to the case of LA BUGAL-BLAAN TRIBAL ASSOCIATION, INC vs RAMOS,

concerning the exploration, development and utilization of natural resources, they said
that since the State owns the natural resources, then it is under the control of the State.
Now the, should there be any exploration, development and utilization of natural
resources, only the State can do it. Like Petroleum in Malampaya, for exploration of
petroleum in Tanon Strait, only the State can explore, develop and utilize the natural
resources but the State can enter into an agreement with a Filipino Citizen or a Filipino
Corporation.

What are the different kinds of contracts that the government may enter into for the
purpose of exploring, developing and utilizing these natural resources?

As discussed, Type of Contracts

1. Joint Venture
2. Co-Production
3. Production Sharing

You notice that foreign corporation is not allowed to enter into such kind of agreement
for the purpose of exploring, developing and utilizing these natural resources, but can
they still participate in the exploration? Like the Japanese in the Tanon Strait. They can
participate in a joint venture? Answer is NO. Not even for co-production or production-
sharing. What would then be the extent of the participation of a foreign corporation?
Answer: Limited only to Service Contracts. Since we don’t have the financial capacity
and we have limited access to technology, entering into a Service Contract can be a
remedy. The Service Contract is an agreement with a foreign corporation, where the
foreign corporation will provide the capital for exploration and the necessary
technology, workers and experts in the exploration. Supposed to be, they should be paid.
What happens is that, the government becomes the employer and the foreign
corporation becomes the contractor, contracted by the government to use their money
and their technology for the exploration. (But in reality the foreign corporation is in
control). But the government insisted, in the case of LA BUGAL-BLAAN TRIBAL
ASSOCIATION, INC vs RAMOS that it is still under the control of the State, through
Macro Control by way of the Mining Laws that restrict or limit the extent of the
operation of the foreign corporation under the Service Contract. Remember, if it is the
kind of contract the government will enter into with the foreign corporation, it is
mandatory that the President shall sign, No Less. No more. Then the President reports
to Congress.

Another point, in so far as exploration of our fishing resources is concerned, if there’s

any franchise or permit to do that, it is Congress that grants the permit and NOT the
President. In the case of LA BUGAL-BLAAN TRIBAL ASSOCIATION, INC vs RAMOS,
emphasizes service contracts, because there is nothing that is mentioned in the 1987
constitution relating to the government entering into a service contract. It was only
stated only in the 1973 Constitution. Service Contracts was only indirectly stated in the
1987 Constitution but was not expressly or emphasized. In the LA BUGAL-BLAAN
TRIBAL ASSOCIATION, INC vs RAMOS, the LA BUGAL-BLAAN Group (an indigenous
cultural community), objected the mining that is being conducted by an Australian
Corporation. Their main argument is that the government cannot enter into a joint
venture or co-production or production-sharing with any foreign corporation. If at all,
there was an agreement, the agreement is only limited to Service Contracts. While the
case was pending in the Supreme Court, the Australian Corporation, instead of
maintaining as a foreign corporation, it sold its share of stocks to a Filipino Corporation.
Hence, the Filipino Corporation took over. The issue became moot and academic
because the foreign corporation became a Filipino Corporation. The counsel (Atty.
Leonen) of the LA BUGAL-BLAAN Group questioned the existence of the Corporation,
because as they have gone through it, according to him, there was only a capital which is
not enough to invest in mining business or mining operation. The supervening event
where the foreign corporation became a Filipino corporation, the State can now enter
into a joint venture. What was emphasize on this case is the matter on the service
contracts.

Article 13. Social Justice and Human Rights

Giving those who have less in life more benefits in the law. If the State does not
intervene, an ordinary Juan Dela Cruz cannot live a decent life.

We have programs where the State has intervened. Example: Giving lands to the
landless tenants. We have the Comprehensive Agrarian Reform Program (CARP). Here,
the government buys the land, and the land is being re-sold to a farmer on installment
basis according to their capacity to pay the amortization.

Another is, we have on protecting labor. In fact, the guiding principle of labor code is for
the promotion of social justice. This does not mean that you will have to pay a person
without requiring him to render services. What is guaranteed under existing laws on
Social Justice is that this should not be done at the expense of the rights of others. In
other words, should you benefit from the law, you must exert efforts. So, therefore it is
in accordance with the efforts you have exerted in the production of the goods. In labor,
the wage must be commensurate on the nature of the work rendered.

Social Justice therefore is not synonymous to communism, neither to socialism. It is the

equalization of social and economic forces by the so that justice in its rational and
objectively secular conception may at least be approximated.

In CARP only the excess land owned by the landowners can be bought by the State and
distributed to the tenants of that land. You also have urban poor housing, it is also
guaranteed under the Constitution. For our informal settlers, who are in the urban
areas, they are given a chance to own the land or the house, so that they can live a decent
life. Under the principle on social justice, a landowner cannot just eject a settler who
squats in his land for a significant number of years where the landowner has slept on his
right (laches) on such land. It is prohibited because they are protected under Social
Justice. There are restrictions and limitations if you need to eject this informal settler.

As for Human Rights, the commission on human rights is not a constitutional body,
however, it is mandated by the Constitution that a Commission on Human Rights
should be established or should be created.

The CHR is not an independent body. Not being a body, it is at the mercy of the
authority that created it. Who created it? Answer: The Congress. It does not enjoy fiscal
autonomy unlike the Constitutional Commissions (COMELEC, COA, CSC), hence, if
their budget is reduced by Congress, there is nothing that they can do.

Human Rights defined. Human rights are only limited to civil and political rights. They
do not include socio-economic rights. You cannot define human rights because to define
human right, you will be limiting the rights that needed to be protected for as long as
you are human. In the case of Simon vs the CHR, Simon was the Mayor of Quezon,
the Supreme Court said that socio-economic rights are not within the contemplation of
the definition of human rights. In this case, a "Demolition Notice," was sent to, and
received by, the private respondents. In said notice, the respondents were given a grace-
period of three (3) days within which to vacate the questioned premises of North EDSA.
Prior to their receipt of the demolition notice, the private respondents were informed by
petitioner Quimpo that their stalls should be removed to give way to the "People's Park".
The group, led by their President Roque Fermo, filed a letter-complaint with the CHR
against the petitioners, asking the late CHR Chairman Mary Concepcion Bautista for a
letter to be addressed to then Mayor Brigido Simon, Jr., of Quezon City to stop the
demolition of the private respondents' stalls, sari-sari stores, and carinderia along North
EDSA. Here, the Mayor was sued for violation of human rights but the case was
dismissed by the CHR for lack of jurisdiction. The reason is that, the rights being
violated are not covered by the definition of human rights, because they believed that
only civil and political rights are involved in the violation of human rights.

Who can violate human rights? Not necessarily the government, even a private
individual may violate human rights and you can file a complaint to the CHR.

Example: non-payment of wages (maid), if you were the chambermaid where would you
go? Answer: You go to the Department of Labor not the CHR. Why not CHR? Answer:
Because the function of CHR is just simply to investigate if there are violation of human
rights. They cannot adjudicate rights. They cannot determine whether or not this person
being complained against has violated the human rights of the person and punish him.
What can the CHR do is endorse the complaint to the Department of Labor to take the
necessary action. If it constitute a crime, then CHR will refer the case to the DOJ. If the
person complained against is an employee of the government, CHR can refer the case to
the Ombudsman. That’s all that they can do. Or ask someone to file a civil case. It is not
for them to adjudicate the rights of a person complaining. They only have
recommendatory and investigatory powers.
The CHR’s function is only to investigate. It cannot decide whether the person charged
with violation of human rights is guilty or not. They cannot punish, neither can they
issue injunction to stop further violation of human rights. CHR’s relevance is being the
mouthpiece of those who are afraid to complain to the proper authorities.

Women. Protecting working women. The role of the people’s organization, a partylist
organization has been registered in the COMELEC and given a chance to participate in
government through Congress in the House of Representative.

Human Security Act is anti-terrorism law. These terrorist must be judicially declared by
the courts, like ASG for example. The anti-terrorism act or the Human Security Act, is
the law imposed greater penalties. What is the participation of the CHR? The Law said,
should the Human Security Act be violated by the Military. For instance, if the Military
arrests a private individual on the ground of mere suspicion that a person is a terrorist,
under the Human Security Act, the CHR is directed to prosecute. Hence, CHR’s power is
not merely investigatory but also prosecutory under the Human Security Act. What
would be then the justification? According to the law, “and perform such other function
as may be provided by law”. And that law now is the Human Security Act.

Article 14. EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE

AND SPORTS

Academic Freedom. Academic freedom means the liberty of schools or public officials to
teach, pursue, and discuss knowledge without restriction or interference.

Example: Who can teach? Here is Maria, she applies as a teacher, and then she is
placed under a probation period of two years. After two years, she was removed from
her position as a teacher. Maria filed a suit for unfair labor practice in the Department of
Labor and Employment. On its answer, the institution contends that it is their right to
determine who is competent to teach in their institution. Since Maria has been
incompetent, she was relieved from her job as a teacher. As between the right of the
teacher and Academic Freedom, Academic Freedom prevails.

Example 2: What to Teach? La Salle Case. Students who were members of a certain
fraternity were expelled. The students asserted their right to education. The Supreme
Court said, as between the right to Education and the Academic Freedom of the School
to determine what to teach, Academic Freedom prevails. What is being taught? Answer
is Discipline.

Example 3: How a subject is to be taught? Miriam College Case. Students

participated in a rally. The following semester, they were not accepted by the school. As
between right to education and Academic Freedom. The Academic Freedom prevails.
Question: What particular aspect Academic Freedom is taught? Answer: How the
subject be taught. What is the subject? Answer: Discipline. How is it taught? Answer: If
you are an anarchist, you cannot be admitted. They cannot allow anarchist in the school.
They are taught discipline by dismissing or expelling them from the school.
Who to admit to study in the college? The school can promulgate requirements to pass.

In the case of Cudia a Philippine Military Academy cadet who was not allowed to join
PMA graduation march. The PMA is an educational institution of higher learning,
teaching military training. Here, Cudia was convicted by fellow cadets, who comprised
the honor committee, of lying for being late for class for two minutes. He was found
guilty of Lying. Lying is a violation of the honor code, which states cadets “do not lie,
cheat, steal nor tolerate those who do. PMA did not take this violation lightly. The
Honor Code Committee has the discretion to determine if there is a need to discipline
the cadet or not because of the Academic Freedom. Hence, Cudia was expelled. The
President and the Supreme Court, concurred the decision of the Honor Code Committee
by reason of Academic Freedom.
Is there a limitation of the Academic Freedom? Answer: Yes, it depends on the attending
circumstances. If you do not agree with the invocation of academic freedom of the
institution, you can challenge the decision in the court.

From the point of view if the academe, what is the extent of its academic freedom?
Answer: it extends to the Faculty members, researchers.

Article 15. Family

Emphasis is on marriage as a basic social institution. They always invoke this should
there be any attempt to legalize divorce in the country. On the other hand, divorce can
be a remedy in order to maintain peace in the family.

Regarding the changing of the name of the Republic of the Philippines to another name
or changing the title of the national anthem, can the Congress do the change by ordinary
legislation? Answer: YES, provided that it has the ratification, approval by the people in
a national referendum.

Immunity of the State from Suit (not discussed: Judge assumed that
students have mastered it)

Article 16: General Provisions

Armed Forces of the Philippines.

Cite provisions in the Constitution that would prove that civilian authority is at all times
supreme over the military authority (Bar Question).

Answer: You have Sections:

SECTION 4. The prime duty of the Government is to serve and protect the people. The
Government may call upon the people to defend the State and, in the fulfillment thereof,
all citizens may be required, under conditions provided by law, to render personal
military or civil service.
Explanation:
The armed forces of the Philippines is composed of citizens, therefore civilians, although
they are armed, so citizens’ armed formed force which will undergo military training
and service. They must take an oath or affirmation to uphold and defend the
Constitution (this is to maintain the supremacy of the civilian authority). There is also
the matter on the prohibition against appointment of active military personnel in
civilian positions. You have to wait for the military man to retire (at the age of 56) or
resign before you can make an appointment of that person to a civilian position.

In fact, it was controversial when the President then, ordered the Military to take over
the Bureau of Customs because that would violate the Constitution. So he changed his
tenor by saying, they are not there to take over rather to assist the civilian authorities.
Assisting is one, taking over is another thing because of the prohibition against Military,
active in service, to take over or to hold, or to occupy a civilian position, because of the
policy that at all times civilian authority must be supreme over the military authority.

As part of the professionalism of the Military, they are not allowed to engage in partisan
activity such as campaigning during elections, except to VOTE.

Regarding on the limitation of the tour of duty of the Chief of Staff. What is the tour of
duty? It is 3 years unless it is extended by the President after the declaration of a
national emergency by Congress.

As to retirement, the retirement age is at 56. In the recruitment of the military

personnel, it is proportionate representation of the population so that no crick is created
because it would be too dangerous. A fraternity or a brotherhood may be established
which will be not good to public interest or national interest.

SECTION 5. The maintenance of peace and order, the protection of life, liberty, and
property, and the promotion of the general welfare are essential for the enjoyment by all
the people of the blessings of democracy.

On regulation on monopolies in commercial mass media, when it is required by public

interest.

In mass media, the reason we do not allow foreigners to invest is because there are
pieces information contained that are sensitive especially when it involves government.
However, there is an open discussion to amend the provisions on Mass Media to allow
the foreign investors because we cannot forever isolate ourselves from the rest of the
world.

Article 17. Amendments and Revision of the Constitution (Not discussed:

Judge assumed that students have mastered this topic)

Article 18. Transitory Provisions

The transitory provisions, means temporary because they do not have permanent
duration. There are provisions in the 1987 Constitution that are important. Section 25
and 27.

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

Explanation:
This provision is on the entry of foreign military troops into the country up to the US-RP
Military Bases agreement, when it expired and it was never renewed. But it was
anticipated by the framers of the Constitution that someday, there will be a return of US
Military in the country, could be permanent or not, but they are sure they are going to
return.

According to this provision, should there be a return of US Military troops into the
country, it should be with the concurrence of the Senate by 2/3 votes. Truly, the US
Military troops came back in the guise of joint military exercises with the Filipino
soldiers, under a visiting forces agreement.

Why visiting forces agreement when it is just an executive agreement? Because, it is

supposed to be a representation and provides for details of the previous treaty that we
have entered into with the United States. Meaning, there was already an existing treaty
which is the US-RP Mutual Defense Agreement. Executive Agreement then would be
sufficient because the Executive Agreement would simply re-implement the US-RP
Agreement. But because of Section 25, it is necessary that the Senate signs or approves
the agreement. That was the reason why the VFA, even though it was an executive
agreement, it was concurred by 2/3 votes of the members of the Senate.

On the other hand, you have EDCA (Enhanced Defense Cooperation Agreement) with
the US. Because of the conflict between the Philippines and China, the EDCA was
established to send a message to China that US is ready to protect the Philippines. This
is more of an enhancement of the cooperation under the visiting forces agreement. This
agreement is no longer initial since the US Military has already established camps here.
Since this only an executive agreement, this does not need concurrence of the Senate.
This is the case of Sagisag vs Ochoa.

SECTION 27. This Constitution shall take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite held for the purpose and shall supersede all
previous Constitutions.