Notes and Cases

POLITICAL LAW AND PUBLIC INTERNATIONAL LAW

Attorney EDWIN REY SANDOVAL
January 16 – August 6, 2017
April 20 – May 28, 2018

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 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])

AMENDMENTS OR REVISION
(Article XVII, 1987 Constitution)

Ways of Proposing Amendments or Revision

One: Congress may directly propose amendments or revision by three-fourths

(3/4) vote of all its members. In such a case, Congress will not be acting as a legislative
body but rather, as a constituent assembly – a non-legislative function of Congress.

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 Another: through a Constitutional Convention. A constitutional convention is a
body separate and distinct from that of the Congress itself whose members shall be
elected by the people of their respective districts.

There are two (2) ways by which a constitutional convention may be convened;
First, Congress may directly call a constitutional convention, by two-thirds of all its
members; second, Congress, instead of directly calling a constitutional convention, may
submit the issue of calling such a convention to the people, by majority vote of all its
members.

A third: through People’s Initiative.

People’s initiative on the Constitution is done through a petition, but the petition
will have to be signed by at least twelve (12) percent of the total number of registered
voters provided that in each legislative district, at least three (3) percent of the registered
voters therein shall sign the petition.

People’s initiative on the Constitution is limited only to proposing amendments to

the Constitution, not revision thereof. (Santiago v. COMELEC)

The provisions of R.A. No 6735 (The Initiative and Referendum Law) dealing with
initiative on the constitution implements people’s initiative on the Constitution under
Section 2, Article XVII, 1987 Constitution.

Ratification

Any proposed amendment or revision of the Constitution will have to be submitted

to the people in a plebiscite to be ratified by majority of the voters.

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 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

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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

We find the doctrine of operative fact applicable to the 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. 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

The term executive act is broad enough to include 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,

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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 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 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)

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 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 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.

UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a
multilateral treaty regulating, among others, sea-use rights over maritime zones (i,e., the
territorial waters [12 nautical miles from the baselines], contiguous zone [24 nautical miles
from the baselines], exclusive economic zone [200 nautical miles from the baselines]),
and continental shelves that UNCLOS III delimits. UNCLOS III was the culmination of
decades-long negotiations among United Nations members to codify norms regulating
the conduct of States in the world’s oceans and submarine areas, recognizing coastal
and archipelagic States’ graduated authority over a limited span of waters and submarine
lands along their coasts.

On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III
States parties to work-out specific basepoints along their coasts from which baselines are
drawn, either straight or contoured, to serve as geographic starting points to measure the
breadth of the maritime zones and continental shelf.

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
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al. v. Hon. Eduardo Ermita, et al., G.R. No. 187167, 655 SCRA 476, August 16, 2011,
En Banc [Carpio])

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 SCRA 476,
August 16, 2011, En Banc [Carpio])

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 over these areas.

The configuration of the baselines drawn under RA 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.

Petitioners’ assertion of loss of “about 15,000 square 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.

Further, petitioners’ argument that the KIG now lies 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 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

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 [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

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 49-50], which requires that all
money claims against the government must first be filed with the Commission on Audit
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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:

“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])
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When is a suit against a public official deemed to be a suit against the State?
Discuss.

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, 2nd Div. [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)

A petition filed for the issuance of a Writ of Kalikasan 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 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.

Also, the demand for compensation for the 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.

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Government Funds may not be subject to Garnishment

The funds of the UP are government funds that are 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 suability of the
State did not necessarily mean its liability. (UP v. Dizon, G.R. No. 171182, 679 SCRA
54, 23 August 2012, 1st Div. [Bersamin])

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 housing project. (EPG Construction Co. v. Vigilar, 354 SCRA
566, Mar.16, 2001, 2nd 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.

Under the 1987 Constitution, an international law can become part of the sphere
of domestic law either by transformation or incorporation. The transformation method
requires that an international law be transformed into a domestic law through a
constitutional mechanism such as local legislation. On the other hand, generally
accepted principles of international law, by virtue of the incorporation clause of the
Constitution, form part of the laws of the land even if they do not derive from treaty
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 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.

11
 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 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, 2nd par., Art. XII of the Constitution)

Manila Prince Hotel v. GSIS, 267 SCRA 408 (1997) (Bellosillo)

In 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.

Also, in this case the SC held that “patrimony” simply 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.

Filipinization of Public Utilities

Wilson P. Gamboa v. Finance Secretary Margarito B. Teves, et al., G./R. No. 176579,
June 28, 2011, En Banc (Carpio)

Section 11, Article XII (National Economy and Patrimony) of the 1987 Constitution
mandates the Filipinization of public utilities x x x

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

the operation of a public utility shall be granted except to citizens of the Philippines
or to corporations or associations organized under the laws of the Philippines, at
least sixty per centum of whose capital is owned by such citizens x x x.

Xxx

Fr. Joaquin G. Bernas, S.J., a leading member of the 1986 Constitutional

Commission, reminds us that the Filipinization provision in the 1987 Constitution is one
12
of the products of the spirit of nationalism which gripped the 1935 Constitutional
Convention. The 1987 Constitution provides for the Filipinization of public utilities by
requiring that any form of authorization for the operation of public utilities should be
granted only to citizens of the Philippines or to corporations or associations organized
under the laws of the Philippines at least sixty per centum of whose capital is owned by
such citizens. The provision is [an express] recognition of the sensitive and vital
position of public utilities both in the national economy and for national security.
The evident purpose of the citizenship requirement is to prevent aliens from assuming
control of public utilities, which may be inimical to the national interest. This specific
provision explicitly reserves to Filipino citizens control of public utilities, pursuant to an
overriding economic goal of the 1987 Constitution: to conserve and develop our patrimony
and ensure a self-reliant and independent national economy effectively controlled by
Filipinos.

Any citizen or juridical entity desiring to operate a public utility must therefore meet
the minimum nationality requirement prescribed in Section 11, Article XII of the
Constitution. Hence, for a corporation to be granted authority to operate a public utility,
at least 60 percent of its capital must be owned by Filipino citizens.

The crux of the controversy is the definition of the term capital. Does the term
capital in Section 11, Article XII of the Constitution refer to common shares or to the total
outstanding capital stock (combined total of common and non-voting preferred shares)?

Xxx

We agree with petitioner and petitioners-in-intervention. The term capital in

Section 11, Article XII of the Constitution refers only to shares of stock entitled to vote in
the election of officers, and thus in the present case only to common shares, and not to
the total outstanding capital stock comprising both common and non–voting preferred
shares.

Xxx

Considering that common shares have voting rights which translate to control, as
opposed to preferred shares which usually have no voting rights, the term capital in
Section 11, Article XII of the Constitution refers only to common shares. However, if the
preferred shares also have the right to voter in the election of directors, then the term
capital shall include such preferred shares because the right to participate in the control
or management of the corporation is exercised through the right to vote in the election of
directors. In short, the term capital in Section 11, Article XII of the Constitution
refers only to shares of stock that can vote in the election of directors.

This interpretation is consistent with the intent of the framers of the Constitution to
place in the hands of Filipino citizens the control and management of public utilities. X x
x

Xxx

To construe broadly the term capital as the total outstanding capital stock,
including both common and non-voting preferred shares, grossly contravenes the intent
13
and letter of the Constitution that the State shall develop a self-reliant and independent
national economy effectively controlled by Filipinos. A broad definition unjustifiably
disregards who owns the all-important voting stock, which necessarily equates to control
of the public utility.

Xxx

Indisputably, construing the term capital in Section 11, Article XII of the
Constitution to include both voting and non-voting shares will result in the abject surrender
of our telecommunications industry to foreigners, amounting to a clear abdication of the
States constitutional duty to limit control of public utilities to Filipino citizens. Such an
interpretation certainly runs counter to the constitutional provision reserving certain areas
of investment to Filipino citizens, such as the exploitation of natural resources as well as
the ownership of land, educational institutions and advertising businesses. The Court
should never open to foreign control what the Constitution has expressly reserved to
Filipinos for that would be a betrayal of the Constitution and of the national interest. The
Court must perform its solemn duty to defend and uphold the intent and letter of the
Constitution to ensure x x x a self-reliant and independent national economy effectively
controlled by Filipinos.

Section 11, Article XII of the Constitution, like other provisions of the Constitution
expressly reserving to Filipinos specific areas of investment, such as the development of
natural resources and ownership of land, educational institutions and advertising
business, is self-executing. There is no need for legislation to implement these self-
executing provisions of the Constitution. X x x

Xxx

[We] rule that the term capital in Section 11, Article XII of the 1987 Constitution
refers only to shares of stock entitled to vote in the election of directors, and thus in the
present case only to common shares, and not to the total outstanding capital stock
(common and non-voting preferred shares.)

The Right to Life of the Unborn from Conception

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.

14
 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 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 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

15
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 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 present 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 before the courts. The precautionary principle bridges
16
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

Assessing the evidence on record, as well as the 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.

Xxx

Alongside the aforesaid uncertainties, the non-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
17
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. 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. (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])

Field Trial Proposal of Bt (Bacillus thuringiensis) Talong

The crystal toxin genes from the soil bacterium 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)

The Precautionary Principle

The principle of precaution originated as a social 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 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.

In 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,
18
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.

In 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 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.

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)

19
 Petitioners in this case were marine mammals (toothed whales, dolphins, and
other cetacean species) but were joined by human beings as “stewards of nature.

Are these marine mammals the proper parties to file 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)

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)

In these consolidated petitions, this Court has determined that the various issues
raised by the petitioners may be condensed into two primary issues:

Procedural Issue: Locus standi of the Resident Marine Mammals and Stewards
x x x; and

Main Issue: Legality of Service Contract No. 46.

Procedural Issue

The Resident Marine Mammals, through the 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.

Xxx

In light of the foregoing, the need to give the Resident Marine Mammals legal
standing has been eliminated by our Rules, which allow any Filipino citizen, as a steward
of nature, to bring 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 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

20
 This Court has previously settled the issue of whether service contracts are still
allowed under the 1987 Constitution. In La Bugal, we held that the deletion of the words
“service contracts” in the 1987 Constitution did not amount to a ban on them per se. 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.

In summarizing the matters discussed in the ConCom, we established that

paragraph 4, with the safeguards in place, is the exception to paragraph 1, Section 2 of
Article XII. The following are the safeguards this Court enumerated in La Bugal:

Such service contracts may be entered into only with respect to minerals,
petroleum and other mineral oils. The grant thereof is subject to several safeguards,
among which are these requirements:

(1) The service contract shall be crafted in accordance with a general law that will
set standard or uniform terms, conditions and requirements, presumably to
attain a certain uniformity in provisions 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

21
 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 x x

Paragraph 4, Section 2, Article XII of the 1987 Constitution requires that the
President himself enter into 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.

Public respondents’ implied argument that based on 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,

22
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 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 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
23
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)

Academic freedom of educational institutions has 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 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

In 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 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

24
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

It 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. Philippine Judges Association v. Secretary Prado;
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)

It is important to note, however, that what is really required to originate exclusively

in the House of Representatives is not the law, but only the bill. The Senate has the
power to propose or concur with amendments. (Tolentino v. Secretary of Finance)

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.

25
 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 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 [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

The religious sector is expressly prohibited from participating in party-list elections

(Sec. 5, 2nd par., Art. VI, 1987 Constitution). Religious denominations and sects are even

26
prohibited from being registered as political parties in the COMELEC (Sec. 2, par. 5, Art.
IX-C, 1987 Constitution).

However, the Supreme Court clarified, based on the 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)

The act of the COMELEC of not allowing the 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.

Under this non-establishment clause of freedom of 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

Under Sec. 5, 2nd par., Art. VI of the Constitution, the 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.

In 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, 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.

27
 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

Once elected, both the district representatives and the 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. 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)

Post-enactment measures undertaken by Congress to enhance its understanding

of, and influence over, the legislation it has enacted.

This is intrinsic in the grant of legislative power itself 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?

A disapproval by Congress, or by an oversight committee of Congress, of an

administrative regulation promulgated by an administrative body or agency.

The Power of Appropriation

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 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 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

Considering petitioners’ submission and in reference 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 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

29
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
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; 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

There are two (2) kinds of congressional investigations, i.e., inquiry in aid of
legislation (Section 21, Article VI, 1987 Constitution); and the question hour (Section 22,
Article VI, 987 Constitution)

Inquiry in Aid of Legislation (Section 21, Article VI, 1987 Constitution)

30
 In Arnault v. Nazareno, the Court held that intrinsic in the grant of legislative power
itself to Congress by the Constitution is the power to conduct inquiries in aid of legislation,
for Congress may not be expected to enact good laws if it will be denied the power
investigate. Note that Arnault was decided in the 1950’s under the 1935 Constitution,
and in that Constitution there was no provision similar to that which is expressly provided
in the present Constitution. Yet, as early as that case, the Court already recognized that
this power is intrinsic in the grant of legislative power itself to Congress by the
Constitution.

In Bengzon, Jr. v. Senate Blue Ribbon Committee, two (2) relevant questions were
raised. First, is this power of each House of Congress to conduct inquiries in aid of
legislation absolute, or are there limitations? Second, is this power subject to judicial
review, or is it a political question?

As to the first question, the Court clarified that a mere reading of Section 21, Article
VI of the Constitution will show that the power is not really absolute; in fact there are three
(3) important limitations imposed therein, and these are:

1. The inquiry must be in aid of legislation;

2. It must be conducted in accordance with the duly published rules of procedure
of a House of Congress conducting such inquiry; and
3. The rights of persons appearing in or affected by such inquiry shall be
respected.

As to the second, the Court held that since it had already been shown that the
power is not really absolute, in fact, there are important limitations, it follows, therefore,
that such is subject to judicial review especially in view of the expanded power of the
Court 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.

That’s why in that case of Bengzon, Jr., the Court granted the petition for certiorari
and ordered the Senate Blue Ribbon Committee not to further conduct the inquiry since
the Court found that the purpose of said inquiry was not really in aid of legislation; in fact
the purpose was an encroachment on a judicial prerogative.

The Question Hour (Section 22, Article VI, 1987 Constitution)

As explained by the Court in Senate v. Ermita, this question hour is not really a
regular feature of a presidential government, but is merely a borrowed concept from a
parliamentary government.

(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.

31
 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.

Neri v. Senate Committee on Accountability of Public Officers and Investigations,

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

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.

Xxx

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

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.

32
 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.”

Clearly, therefore, even Senate v. Ermita adverts to “a 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

33
privilege. In fact, Senate v. Ermita reiterates 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

It 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)

It 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 duty to protect the State and its people must be carried out earnestly and
effectively throughout the whole territory of the Philippines in accordance with
constitutional provision on national territory. Hence, the President of the Philippines, as
the sole repository of executive power, is the guardian of the Philippine archipelago,
including all the islands and waters embraced therein and all other territories over which
the Philippines and sovereignty or jurisdiction. X x x

To carry out this important duty, the President is equipped with authority over the
Armed Forces of the Philippines (AFP), which is the protector of the people and the state.
X x x. In addition, the Executive is constitutionally empowered to maintain peace and

34
order, protect life, liberty, and property, and promote the general welfare. In recognition
of these powers, Congress has specified that the President must oversee, ensure, and
reinforce our defensive capabilities against external and internal threats and, in the same
vein, ensure that the country is adequately prepared for all national and local emergencies
arising from natural and man-made disasters.

To be sure, this power is limited by the Constitution itself. X x x (Rene A.V.

Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., et al., G.R. No. 212426,
Jan. 12, 2016, En Banc [Sereno, CJ])

The Faithful Execution Clause

This Court has interpreted the faithful execution clause as an obligation imposed
on the President, and not a separate grant of power. Section 17, Article VII of the
Constitution, expresses this duty in no uncertain terms and includes it in the provision
regarding the President’s power of control over the executive department x x x.

Xxx

Hence, the duty to faithfully execute the laws of the land is inherent in executive
power and is intimately related to the other executive functions. X x x

These obligations are as broad as they sound, for a President cannot function with
crippled hands, but must be capable of securing the rule of law within all territories of the
Philippine Islands and be empowered to do so within constitutional limits. Congress
cannot, for instance, limit or take over the President’s power to adopt implementing rules
and regulations for a law it has enacted.

More important, this mandate is self-executory by virtue of its being inherently

executive in nature. X x x

The import of this characteristic is that the manner of the President’s execution of
the law, even if not expressly granted by the law, is justified by necessity and limited only
by law, since the President must “take necessary and proper steps to carry into execution
the law.” X x x

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

legal and necessary for Philippine defense interests. It s no coincidence that the
constitutional provision on the faithful execution clause was followed by that on the
President’s commander-in-chief powers, which are specifically granted during
extraordinary events of lawless violence, invasion, or rebellion. And this duty of defending
the country is unceasing, even in times when there is no state of lawless violence,
invasion, or rebellion. At such times, the President has full powers to ensure the faithful
execution of the laws.

It would therefore be remiss for the President and repugnant to the faithful-
execution clause of the Constitution to do nothing when the call of the moment requires
increasing the military’s defensive capabilities, which could include forging alliances with
states that hold a common interest with the Philippines or bringing an international suit
against an offending state.
35
 Xxx

This approach of giving utmost deference to presidential initiatives in respect of

foreign affairs is not novel to the Court. The President’s act of treating EDCA as an
executive agreement is not the principal power being analyzed x x x. Rather, the
preliminary analysis is in reference to the expansive power of foreign affairs. We have
long treated this power as something the Courts must not unduly restrict. X x x

Xxx

Understandably, this Court must view the instant case with the same perspective
and understanding, knowing full well the constitutional and legal repercussions of any
judicial overreach. (Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N.
Ochoa, Jr., et al., G.R. No. 212426, Jan. 12, 2016, En Banc [Sereno, CJ])

The Doctrine of Qualified Political Agency

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. (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])

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)

The constitutionality of the Service Contract 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?

The SC said “No.” It violated Section 2, 4th par., 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.

36
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 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.

Xxx

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

37
 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.”

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

38
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.

Is the President’s power to call out the armed forces as their Commander-in-Chief
in order to prevent or suppress lawless violence, invasion or rebellion subject to
judicial review, or is it a political question?

When the President calls the armed forces to prevent or suppress lawless
violence, invasion or rebellion, he necessarily exercises a discretionary power solely
vested in his wisdom. This is clear from the intent of the framers and from the text of the
Constitution itself. The Court, thus, cannot be called upon to overrule the President's
wisdom or substitute its own. However, this does not prevent an examination of whether
such power was exercised within permissible constitutional limits or whether it was
exercised in a manner constituting grave abuse of discretion. In view of the constitutional
intent to give the President full discretionary power to determine the necessity of calling
out the armed forces, it is incumbent upon the petitioner to show that the President's
decision is totally bereft of factual basis. The present petition fails to discharge such
heavy burden as there is no evidence to support the assertion that there exists no
justification for calling out the armed forces. There is, likewise, no evidence to support
the proposition that grave abuse was committed because the power to call was exercised
in such a manner as to violate the constitutional provision on civilian supremacy over the
military. In the performance of this Court's duty of “purposeful hesitation” before declaring
an act of another branch as unconstitutional, only where such grave abuse of discretion
is clearly shown shall the Court interfere with the President's judgment. To doubt is to
sustain. (Integrated Bar of the Philippines v. Hon. Ronaldo B. Zamora, G.R. No.
141284, Aug. 15, 2000, En Banc [Kapunan])

39
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.

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.

Xxx

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.
40
 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.

Xxx

For this reason, Articles 36 and 41 of the Revised 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 gamut of civil and political rights.

Xxx

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
41
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 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)

The Power and Duty to Conduct Foreign Relations

The President also carries the mandate of being the sole organ in the conduct of
foreign relations. Since every state has the capacity to interact with and engage in
relations with other sovereign states, it is but logical that every state must vest in an agent
the authority to represent its interests to those other sovereign states.

Xxx

The role of the President in foreign affairs is qualified by the Constitution in that the
Chief Executive must give paramount importance to the sovereignty of the nation, the
integrity of its territory, its interest, and the right of the sovereign Filipino people to self-
determination. X x x(Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N.
Ochoa, Jr., et al., G.R. No. 212426, Jan. 12, 2016, En Banc [Sereno, CJ])

42
The Relationship between the Two Major Presidential Functions and the Role of the
Senate

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

Xxx

The responsibility of the President when it comes to treaties and international

agreements under the present Constitution is therefore shared with the Senate. X x x
(Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., et al., G.R.
No. 212426, Jan. 12, 2016, En Banc [Sereno, CJ])

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

Section 21, Article VII deals with treaties or 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.

In 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.

43
 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, movement of vessels
and aircraft, importation and exportation of equipment, materials and supplies.

Undoubtedly, Section 25, Article XVIII, which 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.

It 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])

Despite the President’s roles as defender of the State and sole authority in foreign
relations, the 1987 Constitution expressly limits his ability in instances when it involves
the entry of foreign military bases, troops or facilities. The initial limitation is found in
Section 21 of the provisions on the Executive Department x x x. The specific limitation is
given by Section 25 of the Transitory Provisions x x x.

It is quite plain that the Transitory Provisions of the 1987 Constitution intended to
add to the basic requirements of a treaty under Section 21 of Article VII. This means that
both provisions must be read as additional limitations to the President’s overarching
executive functions in matters of defense and foreign relations. (Rene A.V. Saguisag,
et al. v. Executive Secretary Paquito N. Ochoa, Jr., G.R. No. 212426, January 12,
2016, En Banc [Sereno, CJ])

The Power of the President to Enter into Executive Agreements

The power of the President to enter into binding executive agreements without
Senate concurrence is already well-established in this jurisdiction. That power has been
alluded to in our present and past Constitutions, in various statutes, in Supreme Court
decisions, and during the deliberations of the Constitutional Commission. X x x

As the sole organ of our foreign relations, and the constitutionally assigned chief
architect of our foreign policy, the President is vested with the exclusive power to conduct
and manage the country’s interface with other states and governments. Being the
principal representative of the Philippines, the Chief Executive speaks and listens for the
nation; initiates, maintains, and develops diplomatic relations with other states and
governments; negotiates and enters into international agreements; promotes trade,
investments, tourism and other economic relations; and settles international disputes with
other states.

As previously discussed, this constitutional mandate emanates from the inherent

power of the President to enter into agreements with other stats, including the prerogative
44
to conclude binding executive agreements that do not require further Senate concurrence.
The existence of this presidential power is so well-entrenched that Section 5(2)(a), Article
VIII of the Constitution, even provides for a check on its exercise. X x x

In Commissioner of Customs v. Eastern Sea Trading (113 Phil. 333 [1961])

executive agreements are defined as “international agreements embodying adjustments
of detail carrying out well-established national polices and traditions and those involving
arrangements of a more or less temporary nature.” In Bayan Muna v. Romulo, this Court
further clarified that executive agreements can cover a wide array of subjects that have
various scopes and purposes. They are no longer limited to the traditional subjects that
are usually covered by executive agreements as identified in Eastern Sea Trading. X x x

One of the distinguishing features of executive agreements is that their validity and
effectivity are not affected by a lack of Senate concurrence. This distinctive feature was
recognized as early as in Eastern Sea Trading (1961) x x x (Rene A.V. Saguisag, et al.
v. Executive Secretary Paquito N. Ochoa, Jr., G.R. No. 212426, January 12, 2016, En
Banc [Sereno, CJ])

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])

The Enhanced Defense Cooperation Agreement (EDCA)

The fear that EDCA is a reincarnation of the U.S. bases so zealously protested by
noted personalities in Philippine history arises not so much from xenophobia but from a
genuine desire for self-determination, nationalism, and above all a commitment to ensure
the independence of the Philippine Republic from any foreign domination.

Mere fears, however, cannot curtail the exercise by the President of the Philippines
of his Constitutional prerogatives in respect of foreign affairs. They cannot cripple him
when he deems that additional security measures are made necessary by the times. X x
x In the future, the Philippines must navigate a world in which armed forces fight with
increasing sophistication in both strategy and technology, while employing asymmetric
warfare and remote weapons.

Additionally, our country is fighting a most terrifying enemy: the backlash of Mother
Nature. X x x

In order to keep the peace in its archipelago in this region of the world, and to
sustain itself at the same time against the destructive forces of nature, the Philippines will
need friends. Who they are, and what form the friendships will take, are for the President
to decide. The only restriction is what the Constitution itself prohibits. It appears that this

45
overarching concern for balancing constitutional requirements against the dictates of
necessity was what led to EDCA.

As it is, EDCA is not constitutionally infirm. As an executive agreement, it remains

consistent with existing laws and treaties that it purports to implement. (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

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)

Thus, the Constitution vests judicial power in the Court and 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

46
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 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)

The petitioners failed to show that President Duterte 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.

47
 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 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)

The SC may not compel the President to take up the 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.

In 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.

“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

48
 “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

The prevailing rule in constitutional litigation is that no question involving the

constitutionality or validity of a law or governmental act may be heard and decided by the
Court unless there is compliance with the legal requisites for judicial inquiry, namely: (a)
there must be an actual case or controversy calling for the exercise of judicial power;
(b) the person challenging the act must have the standing to question the validity of the
subject act or issuance; (c) the question of constitutionality must be raised at the earliest
opportunity; and (d) the issue of constitutionality must be the very lis mota of the case.
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”

An “actual case or controversy” is one which involves a conflict of legal rights, an

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

49
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])

An actual case or controversy means an existing case or controversy that is

appropriate or ripe for determination, not conjectural or anticipatory, lest the decision of
the court would amount to an advisory opinion. (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 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 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). (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])

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

50
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

Defined as a right of appearance in a court of justice 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])

Locus standi is “a right of appearance in a court of justice on a given question

(Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011, 641 SCRA 244, 254, citing
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 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.
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(Saturnino C. Ocampo, et al. v. Rear Admiral Ernesto C. Enriquez, et al., G.R. No.
225973, November 8, 2016, En Banc [Peralta])

Suits Filed by Concerned Citizens

As concerned citizens, petitioners are also required to 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. 225973, November 8, 2016, En Banc [Peralta])

Suits Filed by Members of Congress

In 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

The liberalization of standing first enunciated in 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, 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

52
its counterpart in the U.S., this Court, under its expanded jurisdiction, is mandated by the
Fundamental Law not only to settle actual controversies involving rights which are legally
demandable and enforceable, but also to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government. Verily, the framers of Our
Constitution envisioned a proactive Judiciary, ever vigilant with its duty to maintain the
supremacy of the Constitution.

Consequently, considering that the foregoing petitions have seriously alleged that
the constitutional human rights to life, speech and religion and other fundamental rights
mentioned above have been violated by the assailed legislation, the Court has authority
to take cognizance of these kindred petitions and to determine if the RH (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.

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

53
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 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.

Xxx

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:

Xxx

(5) Promulgate rules concerning the protection and enforcement of

constitutional rights, pleading, 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

54
 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, 2nd Div.
[Peralta])

CONSTITUTIONAL LAW

Police Power

The Power of Eminent Domain

The Constitution expressly provides in Article III, 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 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 Mosqueda, et al. v. Pilipino Banana
Growers & Exporters Association, Inc., et al., G.R. No. 189185, August 16, 2016, En
Banc [Bersamin])

The Two (2) Types of “Taking” under the Power of Eminent Domain

There are two different types of taking that can be identified. A “possessory” taking
occurs when the government confiscates or physically occupies property. A “regulatory”
taking occurs when the government’s regulation leaves no reasonable economically
viable use of the property. (City of Manila v. Laguio, Jr., G.R. No. 118127, April 12,
2005)

In Mosqueda, et al. v. Pilipino Banana Growers & 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,

55
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:

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 Power of Taxation

THE BILL OF RIGHTS

The Right to Due Process of Law

Section 1 of the Bill of Rights lays down what is 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])

The due process clauses in the American and 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).
56
 Due process is comprised of two components – 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 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:

1. In proceedings where there is an urgent need for 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

The law should be declared void as it is vague, i.e., it lacks comprehensible

standards so that men of ordinary intelligence will probably have to guess as to its
meaning and differ in its application.

Such vague law is repugnant to the Constitution in 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.

57
 However, for this to be validly invoked, the act or law must be utterly vague on its
face that it cannot be clarified either by a saving clause or by statutory construction.

Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al.,
G.R. No. 189185, August 16, 2016, En Banc (Bersamin)

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

Xxx

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 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

During the initial evaluation stage at the Department 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
58
a similar 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.

Equal protection neither requires universal application 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 & Exporters
Association, Inc., et al., G.R. No. 189185, August 16, 2016, En Banc [Bersamin])

The Three (3) Levels of Scrutiny to Determine the Propriety of the Classification
under the Equal Protection Clause

The reasonability of a distinction and sufficiency of the 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. To determine the propriety of the classification, courts resort
to three levels of scrutiny, viz: the rational scrutiny, intermediate scrutiny and strict
scrutiny.

The rational basis scrutiny (also known as the rational 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.

When the classification puts a quasi-suspect class at 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.

The strict scrutiny review applies when a legislative 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])

59
 In Mosqueda, et al. v. Pilipino Banana Growers & 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 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 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.”

Xxx

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.

60
 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 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.

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

In 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

61
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.

The determination of probable cause for the purpose 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

Prior notice or hearing is not required before a judge 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

Even Section 2, Article III of the Bill of Rights does not 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)

This is the most common among the instances of 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.

The three (3) important features of this kind of warrantless search are:

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

For searches at checkpoints to be valid, the following 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

The Mandatory Drug Testing under R.A. No. 9165 (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

When one is at the nation’s airport and wanted to 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 search – warrantless searches at airports.

People v. Doria

The requisites for the “plain view” doctrine to be 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
63
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.

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
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.”
64
 Two constitutional guarantees create these zones of 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.

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
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
65
 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 [13th ed. 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 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)

This case defines the extent that our people may 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.

Before us is a special civil action for certiorari and 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.

Respondents (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.

First, respondents cite Article IX-C, Section 4 of the Constitution x x x.

X x x We held that the “evil sought to be prevented by 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

66
candidates[,]” thus, their right to expression during this period may not be regulated by
COMELEC.

Similar to the media, petitioners in the case at bar are neither franchise holders
nor candidates.

Respondents likewise cite Article IX-C, Section 2(7) of the Constitution x x x.

Based on the enumeration made on acts that may be penalized, it will be inferred
that this provision only affects candidates.

Petitioners assail the “Notice to Remove Campaign 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.

Xxx

Respondents considered the tarpaulin as a campaign 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 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.

These provisions show that election propaganda 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.

The tarpaulin was not paid for by any candidate or 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.

Xxx

In 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. . .
67
 While it is true that the present petition assails not a law but an opinion by the
COMELEC Law Department, this Court has applied Article III, Section 4 of the
Constitution even to governmental acts.

. . . shall be passed abridging. . .

All regulations will have a impact directly or indirectly 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.

Our Constitution has also explicitly included 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.

Speech may be said to be inextricably linked to 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])

Xxx

Communication is an essential outcome of protected speech.

Communication exists when “(1) a speaker, seeking 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
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])

Speech is not limited to vocal communication. “[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])

The right to freedom of expression, thus, applies to the entire continuum of speech
from utterances made to conduct enacted, and even to inaction itself as a symbolic
manner of communication.

Even before freedom “of expression” was included in Article III, Section 4 of the
present Constitution, this court has applied its precedent version to expressions other
than verbal utterances.
68
Freedom of expression and equality

The possibility of abuse

The guarantee of freedom of expression to individuals 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 effective enforcement will be the least restrictive means to the fundamental
freedom.

Xxx

COMELEC”s general role includes a mandate to ensure equal opportunities and

reduce spending among candidates and their registered political parties. It is not to
regulate or limit speech of the electorate as it strives to participate in the electoral
exercise.

The tarpaulin in question may be viewed as producing a caricature of those who

are running for public office. Their message may be construed generalizations of very
complex individuals and party-list organizations. They are classified into black and white:
as belonging to “Team Patay” or “Team Buhay.”

But this caricature, though not agreeable to some, is still protected speech.

Xxx

Some may have thought that there should be more 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.

But, the Bill of Rights enumerated in our Constitution 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.

Freedom for the thought we can disagree with can be wielded not only by those in
the minority. This can often be expressed by dominant institutions, even religious 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.

Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is

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

69
 Certainly, provocative messages do matter for the elections.

What is involved in this case is the most sacred of speech forms: expression by
the electorate that tends to rouse the public to debate contemporary issues. This is not
speech by candidates or political parties to entice votes. It is a portion of the electorate
telling candidates the conditions for their election. It is the substantive content of the right
to suffrage.

This is a form of speech hopeful of a quality of 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 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

The first point to mark is that the right to peaceably 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.

The processions, rallies, parades, demonstrations, 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.

The definition herein contained shall not include picketing and other concerted
action in strike areas by 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)
70
Permit when required and when not required

A written permit shall be required for any person or 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

Every city and municipality in the country shall within 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 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)

The Integrated Bar of the Philippines (IBP) applied for a permit to rally at Mendiola
Bridge. However, then Manila Mayor Jose “Lito” Atienza issued a permit to rally at Plaza
Miranda instead.

71
 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.

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

“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

It 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).

A fair and impartial reading of B.P. No. 880 thus 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
72
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 the expressions
in the rally.

Furthermore, the permit can only be denied on the 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

The Court now comes to the matter of the CPR. As 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.

At any rate, the Court rules that in view of the 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.

In sum, this Court reiterates its basic policy of upholding the fundamental rights of
our people, especially freedom of expression and freedom of assembly.

For this reason, the so-called calibrated preemptive 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 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)
73
 The decision of the COMELEC not to allow the Ang 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 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, 1st Div.
[Kapunan])

Iglesia Ni Cristo v. Court of Appeals

Under the non-establishment clause of freedom of 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.

74
James M. Imbong, et al. v. Hon. Paquito N. Ochoa, Jr., et al., GR No. 204819, April
8, 2014, En Banc (Mendoza)

Wherefore, THE PETITIONS ARE partially granted. 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;

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 the RH-IRR, particularly

Section 5.24 thereof, 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 the RH-IRR, particularly

Section 5.24 thereof, 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 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
75
 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.

OCA Circular No. 49-2003 does not restrict but merely 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 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, 2nd Div. [Brion])

Efraim C. Genuino, et al. v. Hon. Leila M. De Lima, et al., G.R. Nos. 199034, 199046
and 197930, April 17, 2018, En Banc (Reyes, Jr.)

These consolidated Petitions x x x assail the constitutionality of Department of

Justice (DOJ) Circular No. 41, series of 2010, otherwise known as the “Consolidated
Rules and Regulations Governing Issuance and Implementation of Hold Departure
Orders, Watchlist Orders and Allow Departure Orders,” on the ground that it infringes on
the constitutional right to travel.

Xxx

The right to travel is part of the “liberty” of which a citizen cannot be deprived
without due process of law. It is part and parcel of the guarantee of freedom of movement
that the Constitution affords its citizen. X x x

Xxx

It is apparent, however, that the right to travel is not absolute. There are
constitutional, statutory and inherent limitations regulating the right to travel. Section 6

76
itself provides that the right to travel may be impaired only in the interest of national
security, public safety or public health, as may be provided by law. X x x

Clearly, under the provision, there are only three considerations that may permit a
restriction on the right to travel: national security, public safety or public health. As a
further requirement, there must be an explicit provision of statutory law or the Rules of
Court providing for the impairment. The requirement for a legislative enactment was
purposely added to prevent inordinate restraints on the person’s right to travel by
administrative officials who may be tempted to wield authority under the guise of national
security, public safety or public health. This is in keeping with the principle that ours is a
government of laws and not of men and also with the canon that provisions of law limiting
the enjoyment of liberty should be construed against the government and in favor of the
individual.

The necessity of a law before a curtailment in the freedom of movement may be

permitted is apparent in the deliberations of the members of the Constitutional
Commission. X x x.

It is well to remember that under the 1973 Constitution, the right to travel is
compounded with the liberty of abode in Section 5 thereof x x x.

The provision, however, proved inadequate to afford protection to ordinary citizens

who were subjected to “hamletting” under the Marcos regime. Realizing the loophole in
the provision, the members of the Constitutional Commission agreed that a safeguard
must be incorporated in the provision in order to avoid this unwanted consequence. Thus,
the Commission meticulously framed the subject provision in such a manner that the right
cannot be subjected to the whims of any administrative officer. In addressing the
loophole, they found that requiring the authority of a law most viable in preventing
unnecessary intrusion in the freedom of movement x x x.

During the discussions, however, the Commission realized the necessity of

separating the concept of liberty of abode and the right to travel in order to avoid untoward
results. Ultimately, distinct safeguards were laid down which will protect the liberty of
abode and the right to travel separately x x x.

It is clear from the foregoing that the liberty of abode may only be impaired by a
lawful order of the court and, on the one hand, the right to travel may only be impaired by
a law that concerns national security, public safety of public health. Therefore, when the
exigencies of times call for a limitation on the right to travel, the Congress must respond
to the need by explicitly providing for the restriction in a law. This is in deference to the
primacy of the right to travel, being a constitutionally-protected right and not simply a
statutory right, that it can only be curtailed by a legislative enactment.

Xxx

In any event, when there is a dilemma between an individual claiming the exercise
of a constitutional right vis-à-vis the state’s assertion of authority to restrict the same, any
doubt must, at all times, be resolved in favor of the free exercise of the right, absent any
explicit provision of law to the contrary.

77
The issuance of DOJ Circular No. 41 has
no legal basis

Guided by the foregoing disquisition, the Court is in quandary of identifying the

authority from which the DOJ believed its power to restrain the right to travel emanates.
To begin with, there is no law particularly providing for the authority of the secretary of
justice to curtail the exercise of the right to travel, in the interest of national security, public
safety or public health. As it is, the only ground of the former DOJ Secretary in restraining
the petitioners, at that time, was the pendency of the preliminary investigation of the Joint
DOJ-COMELEC Preliminary Investigation Committee on the complaint for electoral
sabotage against them.

To be clear, DOJ Circular No. 41 is not a law. It is not a legislative enactment

which underwent the scrutiny and concurrence of lawmakers, and submitted to the
President for approval. It is a mere administrative issuance apparently designed to carry
out the provisions of an enabling law which the former DOJ Secretary believed to be
Executive Order (E.O.) No. 292, otherwise known as the “Administrative Code of 1987.”
Xxx

Xxx

Consistent with the foregoing, there must be an enabling law from which DOJ
Circular No. 41 must derive its life. Unfortunately, all of the supposed statutory authorities
relied upon by the DOJ did not pass the completeness test and sufficient standard test.
The DOJ miserably failed to establish the existence of the enabling law that will justify the
issuance of the questioned circular.

That DOJ Circular No. 41 was intended to aid the department in realizing its
mandate only begs the question. The purpose, no matter how commendable, will not
obliterate the lack of authority of the DOJ to issue the said issuance. Surely, the DOJ
must have the best intentions in promulgating DOJ Circular No. 41, but the end will not
justify the means. To sacrifice individual liberties because of a perceived good is
disastrous to democracy. X x x.

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
78
 case basis whether the 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 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

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 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 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.

Emphasizing the import and meaning of the foregoing 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 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.

Thus, while “public concern” like “public interest” 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.

In 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

80
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

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, 3rd Div. [Panganiban])

Is a condition in an application for bail that accused 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
81
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, 2nd Div. [Mendoza])

Government of Hongkong Special Administrative Region v. Judge Olalia

The decision of the SC in Government of the USA v. Judge Purganan which says
that “no bail rule applies in extradition since bail is available only to one who had 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.

The reason why the Purganan ruling was re-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 (3rd Div.), G.R. No. 213847, August 18, 2015,
En Banc (Bersamin)

A close reading of the ruling of the SC in this case 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 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

82
 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 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.”

The Right against Self-incrimination

It bears emphasis, however, that under the above-quoted provisions, what is

actually proscribed is the use of physical or moral compulsion to extort communication
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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 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’.”

One of the basic rights guaranteed by the Constitution 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?

84
 [W]e reject respondent court’s ruling that the grant of 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

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.

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 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 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 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

86
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 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
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.

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 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 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?

To deny full Filipino citizenship to all foundlings and 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.

As a matter of fact, foundlings are as a class, natural-born citizens. While the 1935
Constitution’s enumeration is silent as to foundlings, there is no restrictive language which
would definitely exclude foundlings either. Because of silence and ambiguity in the
numeration with respect to foundlings, there is a need to examine the intent of the framers.
Xxx

[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

In 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
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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. X x x

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

The common thread of the UDHR (Universal 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.

The principles found in two conventions, while yet 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.

A foundling is, until the contrary is proved, presumed to have been born on the
territory of the State in which it was found.

The second is the principle that a foundling is presumed born of citizens of the
country where he is found, contained in Article 2 of the 1961 United Nations Convention
on the Reduction of Statelessness x x x.

Xxx

In 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)

There are three (3) ways by which Philippine citizenship may be reacquired,
namely: (1) by naturalization; (2) by repatriation; and (3) by direct act of Congress.

The Effect of Marriage

89
 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)

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)

This provision is not self-executing. The word 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 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])

90
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 Reacquisition Act of 2003)

Sometimes, this law has been referred to as the dual citizenship law.

The law applies to: (1) former natural-born citizens of 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.

In 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:

Section 5(2) of The Citizenship Retention and Re-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 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 x x

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

91
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.

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.

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

93
 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 rd Div., [Callejo,
Sr.])

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 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, 3rd Div., [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, 3rd Div., [Callejo, Sr.]

ADMINISTRATIVE LAW

Quasi-Legislative Power of Administrative Agencies

Indeed, administrative agencies possess quasi-legislative or rule-making powers,

among others. It is the “power to make rules and regulations which results in delegated
legislation that is within the confines of the granting statute and the doctrine of non-
delegability and separability of powers.” In the exercise of this power, the rules and
regulations that administrative agencies promulgate should be within the scope of the
statutory authority granted by the legislature to the administrative agency. It is required
that the regulation be germane to the objects and purposes of the law, and be not in
94
contradiction to, but in conformity with, the standards prescribed by law. They must
conform to and be consistent with the provisions of the enabling statute in order for such
rule or regulation to be valid.

It is, however, important to stress that before there can even be a valid
administrative issuance, there must first be a showing that the delegation of power is itself
valid. It is valid only if there is a law that (a) is complete in itself, setting forth therein the
policy to be executed, carried out, or implemented by the delegate; and (b) fixes a
standard the limits of which are sufficiently determinate and determinable to which the
delegate must conform in the performance of his functions. (Efraim C. Genuino, et al.
v. Hon. Leila M. De Lima, et al., G.R. Nos. 199034, 199046 and 197930, April 17, 2018,
En Banc [Reyes, Jr.])

The Doctrine of Primary Jurisdiction or Prior Resort

The Doctrine of Exhaustion of Administrative Remedies

Under the doctrine of exhaustion of administrative 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

Conchita Carpio-Morales v. Court of Appeals (6th Div.), G.R. Nos. 217126-27,

November 10, 2015 (Perlas-Bernabe)

Nature of Appointment as Discretionary

Flores v. Drilon

The Powers of the Ombudsman

Conchita Carpio-Morales v. Court of Appeals (6th Div.), 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,
95
 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 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.

96
 Xxx

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.
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

Jurisprudential 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

97
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.

Preventive suspension is merely a preventive measure, a 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.

That preventive suspension is not a penalty is in fact 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, 3rd 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
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:

98
 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

Generally speaking, condonation has been defined as “[a] victim’s express or

implied forgiveness of an offense, [especially] by treating the offender as if there had
been no offense.”

The condonation doctrine – which connotes this same sense of complete

extinguishment of liability 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.

Xxx

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, 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

99
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 for Pascual’s judicious re-examination.

Testing the Condonation Doctrine

Pascual’s ratio decidendi may be dissected into three (3) parts:

First, the penalty of removal may not be extended 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

Third, courts may not deprive the electorate, who are 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

A thorough review of the cases post-1987 x x x would 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 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.

Xxx

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
100
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
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.

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.

101
 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.

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.

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

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.”

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.

104
 “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 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

There is now an exception to the residence 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 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?

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 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.

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

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

106
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 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
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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 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. 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

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 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, 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
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.

109
 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.

Powers of Local Governments

Corporate Powers of Local Governments

To be considered as a valid police power, an 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).

The formalities in enacting an ordinance are laid down 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.

The corporate powers of the local government unit 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

110
accomplish and carry out the declared objects of its creation, and to promote and maintain
local autonomy. X x x.

Section 16 comprehends two branches of delegated 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 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.

Section 458 of the Local Government Code explicitly vests the local government
unit with the authority to enact ordinances aimed at promoting the general welfare x x x.

In 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 Mosqueda,
et al. v. Pilipino Banana Growers & Exporters Association, et al., G.R. No. 189185,
August 16, 2016, En Banc [Bersamin])

Requisites of a Valid Ordinance

A valid ordinance must not only be enacted within the 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 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, August 16, 2016, En Banc
[Bersamin])

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, August 16, 2016, En Banc (Bersamin)

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
111
 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 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.

Xxx

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, 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

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 In 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, August 16, 2016, En Banc
[Bersamin])

Vacancies and Succession in the Local Governments

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

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exception of barangay officials, from serving more than 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)

What is prohibited by the Constitution is after serving 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)

Service of the recall term, since it is less than three (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 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.

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 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

Recall is a mode of removing a local elective official from his post even before the
end of his term on the ground of loss of confidence.

There is only one ground for Recall: Loss of Confidence

Loss of confidence as a ground for recall is a political question and therefore, not
subject to judicial review. (Evardone v. COMELEC) After all, as explained by the Court
in that case, the initiation of the recall process is not the recall itself. There will still be
conducted a special recall election and, in that special recall election, it will be known
whether the people still have confidence in the local elective official sought to be recalled
or whether they no longer have confidence in him.

Way of Initiating Recall

Under current and existing laws, there is only one way of initiating recall and that
is, through a petition to be signed by the registered voters of the local government unit
concerned because of the enactment by Congress of R.A. No. 9244 (Abolishing the
Preparatory Recall Assembly as a Mode of Initiating Recall) on February 18, 2004.

A petition signed by just one person is in violation of the minimum statutory

requirement of initiating recall. (Angubung v. COMELEC)

PUBLIC INTERNATIONAL LAW

Jus Cogens Norms and Erga Omnes Obligations

Just 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.

Under the Vienna Convention on the Law of Treaties, a treaty that violates a jus
cogens norm will have to be invalidated.

Erga omnes literally means “in relation to the whole.” 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

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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 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 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
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 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. 183591, 568 SCRA 402, October 14, 2008, En
Banc (Carpio-Morales)

The 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 of
international law. However, this right to self-determination of peoples may be understood
in two senses, i.e., the right to internal self-determination (a people’s pursuit of its own
political, economic, social and cultural development within the framework of an existing
State), and the right to external self-determination (which consists of the assertion of a
right to unilateral secession). But, as normally understood in international law, this right
to self-determination merely refers to the right to internal self-determination. The right to
external self-determination, 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

An association is formed when two states of unequal 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” 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])
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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. 183591,
568 SCRA 402, October 14, 2008, En Banc [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 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)

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 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

The right of a refugee not to be expelled or returned “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 Paquito N. Ochoa, Jr., G.R. No.
212426, January 12, 2016, En Banc (Sereno, CJ)

The Doctrine of State Responsibility to Aliens

An important premise for this doctrine to be validly 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:

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 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.
(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.

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

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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

An important principle to be observed under IHL is the 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

An armed conflict may be of such nature in which “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 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

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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)?

The tenth preambular paragraph of the ICC Statute 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.])

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 60th ratification.

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).

Insofar 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.])

International Environmental Law

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Background Information

The Convention on Biological Diversity (CBD)

On December 29, 1993, the Convention on Biological 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.”
(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 Cartagena Protocol

In 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.”

On May 24, 2000, the Philippines signed the 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 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

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
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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.

The Rules (of Procedure for Environmental Cases) incorporated the principle in
Part V, Rule 20.

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