Political and Public International Law

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JANUARY 1 TO JUNE 30, 2006 SUPREME COURT DECISIONS by: Prof. Arturo M. de Castro 1. (a) Do local Governments have the inherent power of eminent domain (expropriation)? Ans: Local governments have no inherent power of eminent domain and may exercise it only when expressly authorized by statute. Section 19 of the Local Government Code of 1991 (Republic Act No. 7160) prescribes the delegation by Congress of the power of eminent domain to local government units and lays down the parameters for its exercise, thus: SEC. 19. Eminent Domain A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, purpose or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws: Provided, however, That, the power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner and such offer was not accepted: Provided, further, That, the local government unit may immediately take possession of the property upon filing of expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated: Provided, finally, That, the amount to be paid for expropriated property shall be determined by the proper court, based on the fair market value at the time of the taking of the property. (Masikip vs. City of Pasig, G.R. No. 136349, January 23, 2006) Note: The deposit under the law on expropriation must be 100% of the market value or the zonal valuation of the BIR, which ever is higher (RA No. ________) (b) What are the issues (areas of concern) in the exercise of eminent domain? Ans: Judicial review of the exercise of eminent domain is limited to the following areas of concern: (a) the adequacy of the compensation, (b) the necessity of the taking, and (c) the public use character of the purpose of the taking. (Ibid)
(c) Discus and illustrate the element of necessity in eminent domain? Ans: The right to take private property for public purposes necessarily originates from the necessity and the taking must be limited to such necessity. In City of Manila v. Chinese Community of Manila (40 Phil. 349 [1919]), we held that the very foundation of the right to exercise eminent domain is a genuine necessity and that necessity must be of a public character. Moreover, the ascertainment of the necessity must precede or accompany and not follow, the taking of the land. In City of
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Manila v. Arellano Law College (85 Phil. 663 [1950]), we ruled that necessity within the rule that the particular property to be expropriated must be necessary, does not mean an absolute but only a reasonable or practical necessity, such as would combine the greatest benefit to the public with the least inconvenience and expense to the condemning party and the property owner consistent with such benefit. Applying this standard, we hold that respondent City of Pasig has failed to establish that there is a genuine necessity to expropriate petitioners property. Our scrutiny of the records shows that the Certification issued by the Caniogan Barangay Council dated November 20, 1994, the basis for the passage of Ordinance No. 42 s. 1993 authorizing the expropriation, indicates that the intended beneficiary is the Melendres Compound Homeowners Association, a private, non-profit organization, not the residents of Caniogan. It can be gleaned that the members of the said Association are desirous of having their own private playground and recreational facility. Petitioners lot is the nearest vacant space available, the purpose is, therefore, not clearly and categorically public. The necessity has not been shown, especially considering that there exists an alternative facility for sports development and community recreation in the area, which is the Rainforest Park, available to all residents of Pasig City, including those of Caniogan. The right to own and possess property is one of the most cherished rights of men. It is so fundamental that it has been written into organic law of every nation where the rule of law prevails. Unless the requisite of genuine necessity for the expropriation of ones property is clearly established, it shall be the duty of the courts to protect the rights of individuals to their private property. Important as the power of eminent domain may be, the inviolable sanctity which the Constitution attaches to the property of the individual requires not only that the purpose for the taking of private property be specified. The genuine necessity for the taking, which must be of a public character, must also be shown to exist. (Ibid) 2. Jurisdiction over an action relating to the conduct of plebiscite, such as an action to annul its result, lies with: a) RTC b) COMELEC c) DILG Ans: COMELEC. The conduct of plebiscite and determination of its result have always been the business of the COMELEC and not the regular courts. Such a case involves the appreciation of ballots which is best left to the COMELEC. As an independent constitutional body exclusively charged with the power of enforcement and administration of all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall, the COMELEC has the indisputable expertise in the field of election and related laws. (Cayetano vs. COMELEC, G.R. Nos. 166388 & 166652, January 23, 2006)
Administrative Law 3. (a) State the doctrine of exhaustion of administrative remedies?

Ans:
Under the doctrine of exhaustion of administrative remedies, a litigant cannot go to court without first pursuing his administrative remedies, otherwise his action is premature and his case is not ripe for judicial determination. A litigant should first exhaust the administrative remedies provided by law before seeking judicial intervention in order to give the administrative agency an opportunity to decide correctly the matter and prevent unnecessary and premature resort to the court. (Joson vs. Court of Appeals, G.R. No. 160652, February 13, 2006)
(b) What are the exceptions to the rule on exhaustion of administrative remedies? Ans: However, the Court recognizes some exceptions to the rule of exhaustion of administrative remedies. As held in Paat v. Court of Appeals (266 SCRA 167, 176-177 [1997]): x x x However, we are not amiss to reiterate that the principle of exhaustion of administrative remedies as tested by a battery of cases is not an ironclad rule. This doctrine is a relative one and its flexibility is called upon by the peculiarity and uniqueness of the factual and circumstantial settings of a case. Hence, it is disregarded (1) when there is a violation of due process, (2) when the issue involved is purely a legal question, (3) when the administrative action is patently illegal amounting to lack or excess of jurisdiction, (4) when there is estoppel on the part of the administrative agency concerned, (5) when there is irreparable injury, (6) when the respondent is a department secretary whose acts as an alter ego of the President bears the implied and assumed approval of the latter, (7) when to require exhaustion of administrative remedies would be unreasonable, (8) when it would amount to a nullification of a claim, (9) when the subject matter is a private land in land case proceedings, (10) when the rule does not provide a plain, speedy and adequate remedy, and (11) when there are circumstances indicating the urgency of judicial intervention. The requirement of prior exhaustion of administrative remedies may likewise be dispensed with in the following instances: (1) when the claim involved is small; (2) when strong public interest is involved; and (3) in quo warranto proceedings. (Ibid) (c) When may preventive suspension be imposed under the Local Government Code? Ans: Under Section 63 of the Local Government code, preventive suspension may be imposed (a) after the issues are joined; (b) when the evidence of guilt is strong; and (c) given the gravity of the offense, there is great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence. (Ibid)
4. (a) State the concept of the Police Power. Which department of Government has the primary power to exercise the police power? When and under what conditions may the police power be exercised by the Executive Department? Ans: Police power is inherent in a government to enact laws, within constitutional limits, to promote the order, safety, health, morals, and general welfare of society. It is lodged primarily with the legislature. By
virtue of a valid delegation of legislative power, it may also be exercised by the President and administrative boards, as well as the lawmaking bodies on all municipal levels, including the barangay. Such delegation confers upon the President quasi-legislative power which may be defined as the authority delegated by the law-making body to the administrative body to adopt rules and regulations intended to carry out the provisions of the law and implement legislative policy. To be valid, an administrative issuance, such as an executive order, must comply with the following requisites: (1) Its promulgation must be authorized by the legislature; (2) It must be promulgated in accordance with the prescribed procedure; (3) It must be within the scope of the authority given by the legislature; and (4) It must be reasonable. Delegation of legislative powers to the President is permitted in Section 28(2) of Article V of the Constitution which provides that the Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government. (Executive Secretary vs. Southwing Heavy Industries, Inc., G.R. No. 164171, February 20, 2006) (b) State the exception to the general rule that promulgation of administrative issuances requires previous notice and hearing? Ans: The general rule is that, the promulgation of administrative issuances requires previous notice and hearing, the only exception being where the legislature itself requires it and mandates that the regulation shall be based on certain facts as determined at an appropriate investigation. This exception pertains to the issuance of legislative rules as distinguished from interpretative rules which give no real consequence more than what the law itself has already prescribed; and are designed merely to provide guidelines to the law which the administrative agency is in charge of enforcing. A legislative rule, on the other hand, is in the nature of subordinate legislation, crafted to implement a primary legislation. When an administrative rule goes beyond merely providing for the means that can facilitate or render less cumbersome the implementation of the law and substantially increases the burden of those governed, it behooves the agency to accord at least to those directly affected a chance to be heard and, thereafter, to be duly informed, before the issuance is given the force and effect of law. To be valid, an administrative issuance must not be ultra vires or beyond the limits of the authority conferred. It must not supplant or modify the Constitution, its enabling statute and other existing laws, for such is the sole function of the legislature which the other branches of the government cannot usurp. It is an axiom in administrative law that administrative authorities should not act arbitrarily and capriciously in the issuance of rules and
regulations. To be valid, such rules and regulations must be reasonable and fairly adapted to secure the end in view. If shown to bear no reasonable relation to the purposes for which they were authorized to be issued, then they must be held to be invalid. (Ibid) (c) Distinguish legislative rule from interpretative rule. Ans: As in the enactment of laws, the general rule is that, the promulgation of administrative issuances requires previous notice and hearing, the only exception being where the legislature itself requires it and mandates that the regulation shall be based on certain facts as determined at an appropriate investigation. This exception pertains to the issuance of legislative rules as distinguished from interpretative rules which give no real consequence more than what the law itself has already prescribed; and are designed merely to provide guidelines to the law which the administrative agency is in charge of enforcing. A legislative rule, on the other hand, is in the nature of subordinate legislation, crafted to implement a primary legislation. In Commissioner of Internal Revenue vs. Court of Appeals (329 Phil. 987, 1007 [1996]), and Commissioner of Internal Revenue vs. Michel J. Lhuillier Pawnshop, Inc. (453 Phil. 1043, 1058 [2003]), the Court enunciated the doctrine that when an administrative rule goes beyond merely providing for the means that can facilitate or render less cumbersome the implementation of the law and substantially increases the burden of those governed, it behooves the agency to accord at least to those directly affected a chance to be heard and, thereafter, to be duly informed, before the issuance is given the force and effect of law. In the instant case, EO 156 is obviously a legislative rule as it seeks to implement or execute primary legislative enactments intended to protect the domestic industry by imposing a ban on the importation of a specified product not previously subject to such prohibition. The due process requirements in the issuance thereof are embodied in Section 401 of the Tariff and Customs Code and Sections 5 and 9 of the SMA which essentially mandate the conduct of investigation and public hearings before the regulatory measure or importation ban may be issued. (Ibid) 5. State the exception to the rule that government projects cannot be restrained by injunction. Ans: Presidential Decree No. 1818 prohibits courts from issuing injunctions against government infrastructure projects. In Garcia v. Burgo (353 Phil. 740, 743 [1998]), Presidential Decree No. 1818 was held to prohibit courts from issuing an injunction against any infrastructure project in order not to disrupt or hamper the pursuit of essential government projects or frustrate the economic development effort of the nation. While its sole provision would appear to encompass all cases involving the implementation of projects and contracts on infrastructure, natural resource development and public utilities, this rule, however, is not absolute as there are actually instances when Presidential Decree No. 1818 should not find application. In a spate of cases, this Court declared that although Presidential Decree No. 1818 prohibits any court from issuing injunctions in cases involving infrastructure projects, the prohibition extends only to the issuance of injunctions or restraining orders against administrative acts in controversies involving facts or the exercise of discretion in technical cases. On
issues clearly outside this dimension and involving questions of law, this Court declared that courts could not be prevented from exercising their power to restrain or prohibit administrative acts. The rule on preliminary injunction merely requires that unless restrained, the act complained of will probably violate his rights and tend to render the judgment ineffectual. Here, there is adequate evidence on record to justify the conclusion that the project of NAPOCOR probably imperils the health and safety of the petitioners so as to justify the issuance by the trial court of a writ of preliminary injunction. In sum, what Presidential Decree No. 1818 aims to avert is the untimely frustration of government infrastructure projects, particularly by provisional remedies, to the detriment of the greater good by disrupting the pursuit of essential government projects or frustrate the economic development effort of the nation. Presidential Decree No. 1818, however, was not meant to be a blanket prohibition so as to disregard the fundamental right to health, safety and well-being of a community guaranteed by the fundamental law of the land. (Hernandez v. National Power Corp., G.R. No. 145328, March 23, 2006) 6. (a) Distinguish between the power of eminent domain and the police power. Ans: The power of eminent domain is the inherent right of the state to condemn private property to public use upon payment of just compensation. On the other hand, police power is the power of the state to promote public welfare by restraining and regulating the use of liberty and property. Although both police power and the power of eminent domain have the general welfare for their object, and recent trends show a mingling of the two with the latter being used as an implement of the former, there are still traditional distinctions between the two. Property condemned under police power is usually noxious or intended for a noxious purpose; hence, no compensation shall be paid. Likewise, in the exercise of police power, property rights of private individuals are subjected to restraints and burdens in order to secure the general comfort, health, and prosperity of the state. Thus, an ordinance prohibiting theaters from selling tickets in excess of their seating capacity was upheld valid as this would promote the comfort, convenience and safety of the customers. In U.S. vs. Toribio (15 Phil. 85, 93 [1910]), the court upheld the provisions of Act No. 1147, a statute regulating the slaughter of carabao for the purpose of conserving an adequate supply of draft animals, as a valid exercise of police power, notwithstanding the property rights impairment that the ordinance imposed on cattle owners. A zoning ordinance prohibiting the operation of a lumber yard within certain areas was assailed as unconstitutional in that it was an invasion of the property rights of the lumber yard owners in People v. de Guzman (90 Phil. 132 [1951]). The Court nonetheless ruled that the regulation was a valid exercise of police power. A similar ruling was arrived at in Seng Kee S Co. v. Earnshaw and Piatt (56 Phil. 204 [1931]) where an ordinance divided the City of Manila into industrial and residential areas. A thorough scrutiny of the extant jurisprudence leads to a cogent deduction that where a property interest is merely restricted because the continued use thereof would be injurious to public welfare, or where property is destroyed because its continued existence would be injurious
to public interest, there is no compensable taking. However, when a property interest is appropriated and applied to some public purpose, there is compensable taking. According to noted constitutionalist, Fr. Joaquin Bernas, SJ, in the exercise of its police power regulation, the state restricts the use of private property, but none of the property interests in the bundle of rights which constitute ownership is appropriated for use by or for the benefit of the public. Use of the property by the owner was limited, but no aspect of the property is used by or for the public. The deprivation of use can in fact be total and it will not constitute compensable taking if nobody else acquires use of the property or any interest therein. If, however, in the regulation of the use of the property, somebody else acquires the use or interest thereof, such restriction constitutes compensable taking. Thus, in City Government of Quezon City v. Ericta (207 Phil. 648 [1983]), it was argued by the local government that an ordinance requiring private cemeteries to reserve 6% of their total areas for the burial of papers was a valid exercise of the police power under the general welfare clause. This court did not agree in the contention, ruling that property taken under the police power is sought to be destroyed and not, as in this case, to be devoted to a public use. It further declared that the ordinance in question was actually a taking of private property without just compensation of a certain area from a private cemetery to benefit paupers who are charges of the local government. Being an exercise of eminent domain without provision for the payment of just compensation, the same was rendered invalid as it violated the principles governing eminent domain. (DESAMA vs. Gozun, G.R. No. 157882, March 30, 2006) (b) What is the nature of the function to determine just compensation in expropriation cases? Ans: The question on the judicial determination of just compensation has been settled in the case of Export Processing Zone Authority v. Dulay (149 SCRA 305, 312 [1987]) wherein the court declared that the determinations of just compensation in eminent domain cases is a judicial function. Even as the executive department or the legislature may make the initial determinations, the same cannot prevail over the courts findings. (Ibid) Local Government 7. May a City Mayor file a suit on behalf of the City without the prior authorization of the City Council? Ans: Yes. The mayor has the authority to file suits for recovery of funds and property on behalf of the city, even without the prior authorization from the Sanggunian. This conclusion is strengthened by the fact that nowhere in the enumerated powers and duties of the Sanggunian can one find the requirement of such prior authorization in favor of the mayor for the urpose of filing suits on behalf of the city. Civil Case No. C-18308 was filed by Malonzo to enjoin the registration of what he deemed to be an anomalous deed of sale, while Civil Case No. C-18337 was instituted to annul the Deed of Absolute Sale and to cancel the title issued to Gotesco. Obviously, these suits were filed, initially to preserve, and subsequently to
recover, the property subject of the said suits, to protect the interests of the City of Caloocan over the said parcel of land. Thus, it can be said that the institution of Civil Cases Nos. C-18308 and C-18337 was made within the bounds of Malonzos authority as the city mayor. (City of Caloocan vs. Court of Appeals, G.R. No. 145004, May 3, 2006) Constitutional Law 8. (a) Define moot and academic question. Ans: A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value. Generally, courts decline jurisdiction over such case or dismiss it on ground of mootness. (David vs. Arroyo, G.R. No. 171396, May 3, 2006)
(b) State its exception. Ans: The moot and academic principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, 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 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. (Ibid)
(c) Define locus standi (legal standing). Ans: Locus standi is defined as a right of appearance in a court of justice on a given question. In private suits, standing is governed by the realparties-in-interest rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that every action must be prosecuted or defended in the name of the real party in interest. Accordingly, the real-party-in-interest is the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit. Succinctly put, the plaintiffs standing is based on his own right to the relief sought. The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a public right in assailing an allegedly illegal official action, does so as a representative of the general public. He may be a person who is affected no differently from any other person. He could be suing as a stranger, or in the category of a citizen, or taxpayer. In either case, he has to adequately show that he is entitled to seek judicial protection. In other words, he has to make out a sufficient interest in the vindication of the public order and the securing of relief as a citizen or taxpayer. (Ibid) (d) What are the requisites for a taxpayers suit? Ans: Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided that the following requirements are met: (1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional; (3) for voters, there must be a showing of obvious interest in the validity of the election lwa in question; (4) for concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled early; and (5) for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators. (Ibid) (e) What is the direct injury test in legal standing? Ans: This Court adopted the direct injury test in our jurisdiction. In People v. Vera (65 Phil. 56 [1937]), it held that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result. (Ibid)
(f) Explain the concept of the Presidents immunity from civil or criminal suit. Ans: Settled is the doctrine that the President, during his tenure of office or actual incumbency, may not be sued in any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court litigations while serving as such. Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction to enable him to fully attend to the performance of his official duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive branch and anything which impairs his usefulness in the discharge of the many great and important duties imposed upon him by the constitution necessarily impairs the operation of the Government. However, this does not mean that the President is not accountable to anyone. Like any other official, he remains accountable to the people but he may be removed from office only in the mode provided by law and that is by impeachment. (Ibid)
(g) What is the concept of the power of the President to call on the armed forces of the Philippines? Ans: The overbreadth doctrine is an analytical tool developed for testing on their face statutes in free speech cases, also known under the American Law as First Amendment cases. Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms, seek to regulate only spoken words and again, that overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct. (Ibid) (h) Explain the void for vagueness doctrine. Ans: Related to the overbreadth doctrine is the void for vagueness doctrine which holds that a law is facially invalid if men of common intelligence must necessarily guess at its meaning and differ as to its application. (Ibid)
Elections 9. What are the instances when failure of election may be declared? Ans: Section 6 of the Omnibus Election Code prescribes the conditions for a declaration of elections and for the annulment of the election results, thus: If, on account of force majeure, violence, terrorism, fraud or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for closing of the voting, or after the voting and during the preparation and the transmission of the returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of the verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect. In Tan v. COMELEC (417 SCRA 532 [2003]), we held that the above provisions lay down three instances where a failure of election may be declared, namely: (1) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud or other analogous causes; (2) the election in any polling place has been suspended before the hour fixed by law for the closing of the voting on account of any of such causes; or (3) after the voting and during the preparation, transmission, custody or canvass of the election returns, the election results in a failure to elect on account of any of said aforementioned causes. In all instances, there must have been a failure to elect. This is obvious in the first two scenarios, where the election was not held and where the election was suspended. As to the third scenario, the circumstances attending the preparation, transmission, custody or canvass of the election returns cause a failure to elect. The term failure to elect means nobody emerges as a winner. (Galo vs. COMELEC, G.R. No. 164225, April 19, 2006) E.O. 420 (Unified ID System) 10. Facts: This case involves two consolidated petitions for certiorari, prohibition and mandamus under Rule 65 of the Rules of Court, seeking the nullification of Executive Order No. 420 on the ground that it is unconstitutional. xxx Thus, under EO 420, the President directs all government agencies and government-owned and controlled corporations to adopt a uniform data collection and format for their existing identification (ID) systems. Petitioners in GR. No. 167798 allege that EO 420 is unconstitutional because it constitutes usurpation of legislative functions by the executive branch of the
government. Furthermore, they allege that EO 420 infringes on the citizens right to privacy. xxx Essentially, the petitions raise two issues. First, petitioners claim that EO 420 is a usurpation of legislative power by the President. Second, petitioners claim that EO 420 infringes on the citizens right to privacy. Section 2 of EO 420 provides, Coverage All government agencies and government-owned and controlled corporations issuing ID cards to their members or constituents shall be covered by this execute order. EO 420 applies only to government entities that issue ID cards as part of their functions under existing laws. These government entities have already been issuing ID cards even prior to EO 420. Examples of these government entities are the GSIS, SSS, Philhealth, Mayors Office, LTO, PRC, and similar government entities. Section 1 of EO 420 directs these government entities to adopt a unified multi-purpose ID system. Thus, all government entities that issue IDs as part of their functions under existing laws are required to adopt a uniform data collection and format for their IDs. (Kilusang Mayo Uno v. NEDA, G.R. No. 167798, April 19, 2006) Issues: 1) Is EO 420 constitutional? Ans: Yes. In short, the purposes of the uniform ID data collection and ID format are to reduce costs, achieve efficiency and reliability, insure compatibility, and provide convenience to the people served by government entities. Section 3 of EO 420 limits the data to be collected and recorded under the uniform ID system to only 14 specific items, namely: (1) Name; (2) Home Address; (3) Sex; (4) Picture; (5) Signature; (6) Date of Birth; (7) Place of Birth; (8) Marital Status; (9) Name of Parents; (10) Height; (11) Weight; (12) Two index fingers and two thumbmarks; (13) Any prominent distinguishing features like moles or others; and (14) Tax Identification Number. These limited and specific data are the usual data required for personal identification by government entities, and even by the private sector. Any one who applies for or renews a drivers license provides to the LTO all these 14 specific data. At present, government entities like LTO require considerably more data from applicants for identification purposes. EO 420 will reduce the data required to be collected in the ID databases of the government entities. Government entities cannot collect or record data, for identification purposes, other than the 14 specific data. Various laws allow several government entities to collect and record data for their ID systems, either expressly or impliedly by the nature of the functions of these government entities. Under their existing ID systems, some government entities collect and record more data than what EO 420 allows. At present, data collected and recorded by government entities are disparate, and the IDs they issue are dissimilar.
xxx Making the date collection and recording of government entities unified, and making their ID formats uniform, will admittedly achieve substantial benefits. These benefits are savings in terms of procurement of equipment and supplies, compatibility in systems as to hardware and software, ease of verification and thus increased reliability of date, and the usefriendliness of a single ID format for all government entities. There is no dispute that government entities can individually limit the collection and recording of their date to the 14 specific items in Section 3 of EO 420. There is also no dispute that these government entities can individually adopt the ID format as specified in Section 3 of EO 420. Such an act is certainly within the authority of the heads or governing boards of the government entities that are already authorized under existing laws to issue IDs. A unified ID system for all these government entities can be achieved in either of two ways. First, the heads of these existing government entities can enter into a memorandum of agreement making their systems uniform. If the government entities can individually adopt a formal for their own ID pursuant to their regular functions under existing laws, they can also adopt by mutual agreement a uniform ID format, especially if the uniform format will result in substantial savings, greater efficiency, and optimum compatibility. This is purely an administrative matter, and does not involve the exercise of legislative power. Second, the President may be executive or administrative order direct the government entities under the Executive department to adopt a uniform ID data collection and format. Section 17, Article V of the 1987 Constitution provides that the President shall have control of all executive departments, bureaus and offices. The same Section also mandates the President to ensure that the laws be faithfully executed. Certainly, under this constitutional power of control the President can direct all government entities, in the exercise of their functions under existing laws, to adopt a uniform ID data collection and ID format to achieve savings, efficiency, reliability, compatibility, and convenience to the public. The Presidents constitutional power of control is self-executing and does not need any implementing legislation. Of course, the Presidents power of control is limited to the Executive branch of government and does not extend to the Judiciary or to the independent constitutional commissions. Thus, EO 420 does not apply to the Judiciary, or to the COMELEC which under existing laws is also authorized to issue voters ID cards. This only shows that EO 420 does not establish a national ID system because legislation is needed to establish a single ID system that is compulsory for all branches of government. The Constitution also mandates the President to ensure that the laws are faithfully executed. There are several laws mandating
government entities to reduce costs, increase efficiency, and in general, improve public services. The adoption of a uniform ID data collection and format under EO 420 is designed to reduce costs, increase efficiency, and in general improve public services. Thus, in issuing EO 420, the President is simply performing the constitutional duty to ensure that the laws are faithfully executed. Clearly, EO 420 is well within the constitutional power of the President to promulgate. The President has not usurped legislative power in issuing EO 420. EO 420 is an exercise of Executive power the Presidents constitutional power of control over the Executive department. EO 420 is also compliance by the President of the constitutional duty to ensure that the laws are faithfully executed. Legislative power is the authority to make laws and to alter or repeal them. In issuing EO 420, the President did not make alter or repeal any law but merely implemented and executed existing laws. EO 420 reduces costs, as well as insures efficiency, reliability, compatibility and user-friendliness in the implementation of current ID systems of government entities under existing laws. Thus, EO 420 is simply an executive issuance and not an act of legislation. The act of issuing ID cards and collecting the necessary personal data for imprinting on the ID card does not require legislation. Private employers routinely issue ID cards to their employees. Private and public schools also routinely issue ID cards to their students. Even private clubs and associations issue ID cards to their members. The purpose of all these ID cards is simply to insure the proper identification of a person as an employee, student, or member of a club. These ID cards, although imposed as a condition for exercising a privilege, are voluntary because a person is not compelled to be an employee, student or member of a club. What require legislation are three aspects of a government maintained ID card system. First, when the implementation of an ID card system requires a special appropriation because there is no existing appropriation for such purpose. Second, when the ID card system is compulsory on all branches of government, including the independent constitutional commissions, as well as compulsory on all citizens whether they have a use for the ID card or not. Third, when the ID card system requires the collection and recording of personal data beyond what is routinely or usually required for such purpose, such that the citizens right to privacy is infringed. In the present case, EO 420 does not require any special appropriation because the existing ID card systems of government entities covered by EO 420 have the proper appropriation or funding. EO 420 is not compulsory on all branches of government and is not compulsory on all citizens. EO 420 requires a very narrow and focused collection and recording of personal data while safeguarding the confidentiality of such data. In fact, the data collected and recorded under EO 420 are far less than the data collected and recorded under the ID systems existing prior to EO 420. (Ibid)
2) Does EO 420 establish a national ID card system? Ans: No. EO 420 does not establish a national ID card system. EO 420 does not compel all citizens to have an ID card. EO 420 applies only to government entities that under existing laws are already collecting data and issuing ID cards as part of their governmental functions. Every government entity that presently issues an ID card will still issue its own ID card under its own name. The only difference is that the ID card will contain only the five data specified in Section 3 of EO 420, plus the fingerprint, the agency ID number, and the common reference number which is needed for cross-verification to ensure integrity and reliability of identification. (Ibid)
3) Does EO 420 on Unified I.D. System infringe upon the right to privacy? Ans: No. On its face, EO 420 shows no constitutional infirmity because it even narrowly limits the data that can be collected, recorded and shown compared to the existing ID systems of \government entities. EO 420 further provides strict safeguards to protect the confidentiality of the data collected, in contrast to the prior ID systems which are bereft of strict administrative safeguards. The right to privacy does not bar the adoption of reasonable ID systems by government entities. Some one hundred countries have compulsory national ID systems, including democracies such as Spain, France, Germany, Belgium, Greece, Luxembourg, and Portugal. Other countries which do not have national ID systems, like the United States, Canada, Australia, New Zealand, Ireland, the Nordic Countries and Sweden, have sectoral cards for health, social or other public services. Even with EO 420, the Philippines will still fall under the countries that do not have compulsory national ID sytems but allow only sectoral cards for social security, health services, and other specific purposes. Without a reliable ID system, government entities like GSIS, SSS, Philhealth, and LTO cannot perform effectively and efficiently their mandated functions under existing laws. Without a reliable ID system, GSIS, SSS Philhealth and similar government entities stand to suffer substantial losses arising from false names and identities. The integrity of the LTOs licensing system will suffer in the absence of a reliable ID system. (Ibid) 4) Distinguish EO 420 from the Executive Order of President Ramos establishing a national ID system declared unconstitutional by the Supreme Court. Ans: EO 420 applies only to government entities that already maintain ID systems and issue ID cards pursuant to their regular functions under existing laws. EO 420 does not grant such government entities any power that they do not already possess under existing laws. In contrast, the assailed executive issuance in Ople v. Torres (354 Phil. 948 [1998]), sought to establish a National Computerized Identification Reference System, a national ID system that did not exist prior to the assailed executive issuance. Obviously, a national ID card system requires legislation because
it creates a new national data collection and card issuance system where none existed before. In the present case, EO 420 does not establish a national ID system but makes the existing sectoral card systems of government entities like GSIS, SSS, Philhealth and LTO less costly, more efficient, reliable and user-friendly to the public. Hence, EO 420 is a proper subject of executive issuance under the Presidents constitutional power of control over government entities in the Executive department, as well as under the Presidents constitutional duty to ensure that laws are faithfully executed. (Ibid) 11. E.O. 420 requiring all government agencies and government-owned and controlled corporations to streamline and merge their respective identification systems into one ID system is constitutional. 1) To facilitate the administrative aspects of people in Government, in transacting business with government agencies. 2) It does not cover private citizens. 12. E.O. 420 was declared constitutional because it is limited to persons transacting with government agencies. A.O. No. 308 prescribing a National I.D. System for all citizens was declared unconstitutional for being overbroad and vague which if implemented will put the peoples right to privacy in clear and present danger. The right to privacy is one of the most threatened rights of man living in a mass society. The threats emanate from various sources governments, journalists, employers, social scientists, etc. In the case at bar, the threat comes from the executive branch of government which by issuing A.O. No. 308 pressures the people to surrender their privacy by giving information about themselves on the pretext that it will facilitate delivery of basic services. Given the record-keeping power of the computer, only the indifferent will fail to perceive the danger that A.O. No. 308 gives the government the power to compile a devastating dossier against unsuspecting citizens. x x x [W]e close with the statement that the right to privacy was not engraved in our Constitution for flattery. (Ople v. Torres, G.R. No. 127685, July 23, 1998) (Kilusang Mayo Uno v. NEDA, G.R. No. 167798, April 19, 2006) Bayan, et al. vs. Ermita G.R No. 769838, April 25, 2006 En Banc, Adolf Ascuna (2007 Bar Chairman)
13. Calibrated Pre-emptive Response (CPR) used to disperse rallies is

unconstitutional. a. Authorities must strictly observe the policy of maximum tolerance in dealing with rallies. b. The no permit, no rally policy under BP 880 is upheld.
c. Local governments are ordered to designate freedom parks where rallies can be held without a permit within 30 days after the court ruling becomes final. d. All parks in cities and municipalities that fail to designate Freedom Parks will become freedom parks. e. Mayors have two days to act on rally permit applications. Applications are deemed approved if no action is taken. f. Specific reasons must be stated in writing if a rally permit application is denied, namely clear and present danger to public order, public safety, public convenience, public morals or public health.
14. Presidential Proclamation No. 1017 declaring a state of National Emergency: Summary of Supreme Court rulings. 1. P.P. No. 1017 is declared constitutional insofar as it constitutes a call by the President for the military to prevent or suppress lawless violence. The proclamations extraneous provisions giving the President express or implied power to issue decrees; to direct the military to enforce obedience to all laws even though not related to lawless violence as well as the decrees promulgated by the President; and to impose standards on media or any form of prior restraint on the press are unconstitutional. The high Court also struck down a PP 1017 provision containing an Arroyo order directing the Armed Forces to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction. 2.1. The Presidents power is limited to issuing executive orders, administrative orders, proclamations, memorandum orders, memorandum circulars, and general and special orders. She cannot issue decrees similar to the decrees issued by former President Marcos in the exercise of legislative power during martial law. She cannot issue decrees similar to those issued by former Presidential Marcos under PP 1081. Presidential decrees are laws which are of the same category and binding force as statutes because they were issued by the President in the exercise of his legislative power during the period of martial law under the 1973 Constitution. 3. The series of warrantless arrest on Administration opponents and the orders banning anti-government protests are unconstitutional for violation of the right against warrantless arrest and the right to peaceably assemble. Assembly means a right on the part of the citizens to meet peaceably for consultation in respect to public affairs. It is a necessary consequence of our republican institution and complements the right of speech. As in the case of freedom of expression, this right is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that Congress has a right to prevent.
2.
On the arrests made on university professor, Randy David and other protesters, the court said they were arrested while they were exercising their right to peaceful assembly. They were not committing any crime, neither was there a showing of a clear and present danger that warranted the limitation of that right.
4.
The SC also strongly criticized the police raid on the Tribune as well the arrogant warning of government officials to media against making reports critical of the government as plain censorship. This court cannot tolerate the blatant disregard of a constitutional right even if it involves the most defiant of our citizens. Freedom to comment on public affairs is essential to the vitality of a representative democracy. It is the duty of the courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.
5.
Citing the Constitution, the SC also declared that the president in the absence of a legislation, cannot take over privately owned public utility and private business affected with public interest.
15. Because the Ponente of Bayan vs. Ermita is the Chairman of the 2007 Bar
Examinations, the Bar Candidates are well-advised to read and digest the case from the original decision. 16. BP No. 880 is constitutional. 16.1. It is not void for vagueness. Contrary to petitioners claim, the law is very clear and is nowhere vague in its provisions. Public does not have to be defined. Its ordinary meaning is well-known. xxx Not every expression of opinion is a public assembly. The law refers to rally, demonstration, march, parade, procession or any other form of mass or concerted action held in a public place. So it does not cover any and all kinds of gatherings. 16.2. It is not overbroad. Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition only to the extent needed to avoid a clear and present danger of the substantive evils Congress has the right to prevent. There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation. 16.3. It is not an undue delegation of legislative power to the Mayor. As to the delegation of powers to the mayor, the law provides a precise and sufficient standard the clear and present danger test stated in Sec. 6(a). The reference to imminent and grave danger of a substantive evil in Sec. 6(c) substantially means the same thing and is not an inconsistent standard. As to whether respondent Mayor has the same power independently under Republic Act No. 7160 is thus not necessary to resolve in these proceedings, and was not pursued by the parties in their arguments.
16.4. There is no prior restraint since the content of the speech is not relevant to the regulation. 16.5. Calibrated Pre-emptive Response Policy is unconstitutional. In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people, especially freedom of expression and freedom of assembly. In several policy addresses, Chief Justice Artemio V. Panganiban has repeatedly vowed to uphold the liberty of our people and to nurture their prosperity. He said that in cases involving liberty, the scales of justice should weigh heavily against the government and in favor of the poor, the oppressed, the marginalized, the dispossessed and the weak. Indeed, laws and actions that restrict fundamental rights come to the courts with a heavy presumption against their validity. These laws and actions are subjected to heightened scrutiny. 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 tot eh constitutionally-sound clear and present danger standard. 16.6. Salient Provisions of B.P. 880 The provisions of B.P. No. 880 practically codify the ruling in Reyes: Reyes v. Bagatsing G.R. No. L-65366, November 9, 1983, 125 SCRA 553, 569 8. By way of a summary. The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. If it were a private place, only the consent of the owner or the one entitled to its legal possession is required. Such application should be filed well ahead in time grant to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be the applications must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can have recourse to the proper judicial authority. B.P. No. 880 SEC. 4. 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 the freedom park duly established by law or ordinance or in 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. SEC. 5. Application requirements All applications for a permit shall comply with the following guidelines: (a) The applications shall be in writing and shall include the names of the leaders or organizers; the purpose of such public assembly; the date, time and duration thereof, and place or streets to be used for the intended activity; and the probable number of persons participating, the transport and the public address systems to be used. (b) The application shall incorporate the duty and responsibility of applicant under Section 8 hereof. (c) The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction the intended activity is to be held, at least five (5) working days before the scheduled public assembly. (d) Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or municipal mayor shall cause the same to immediately be posted at a conspicuous place in the city or municipal building. SEC. 6. Action to be taken on the application (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. (f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the Regional
Trial Court, or the Intermediate Appellate Court, its decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt of the same. No appeal bond and record on appeal shall be required. A decision granting such permit or modifying it in terms satisfactory to the applicant shall be immediately executory. (g) All cases filed in court under this section shall be decided within twenty-four (24) hours from date of filing. Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank. (h) In all cases, any decision may be appealed to the Supreme Court. (i) Telegraphic appeals to be followed by formal appeals are hereby allowed. Senate of the Philippines vs. Ermita G.R. No. 169777, April 20, 2006 17. E.O. 464 barring officials to testify in Congress without consent or clearance from the President is unconstitutional. 1) Congress has the absolute right to compel the appearance of officials from the Executive Department for hearings in aid of legislation or needed in making laws. 2) The President can ban officials from appearing in Congressional Question Hour or inquiries unrelated to legislation. 3) Only the President enjoys executive privilege, for reasons that must be stated, such as confidentiality of the information to safeguard public interest. 18. What are the limitations to the power of judicial review? Ans: The power of judicial review is subject to limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the at must have standing to challenge the validity of the subject at or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.
19.
Taxpayers suit. It is well settled that when suing as a citizen, the interest of the petitioner in assailing the constitutionality of laws, presidential decrees, orders, and other regulations, must be direct and personal. In Francisco v. House of Representatives (415 SCRA 136 [2003]), this Court held that when the proceeding involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement of personal interest.
20.
Doctrine of Executive Privilege
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. Executive privilege, whether asserted against Congress, the courts, or the public, is recognized only in relation to certain types of information of a sensitive character. While executive privilege is a constitutional concept, a claim thereof may be valid or not depending on the ground invoked to justify it and the context in which it is made. Noticeably absent is any recognition that executive officials are exempt from the duty to disclose information by the mere fact of being executive officials. Indeed, the extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure. When Congress exercises its power or 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 her 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. A claim of privilege, being a claim of exemption from an obligation to disclose information, must, therefore, be clearly asserted. Executive privilege, is recognized with respect to information the confidential nature of which is crucial to the fulfillment of the unique role and responsibilities of the executive branch, or in those instances where exemption from disclosure is necessary to the discharge of highly important executive responsibilities. The doctrine of executive privilege is thus premised on the fact that certain informations must, as a matter of necessity, be kept confidential in pursuit of the public interest. The privilege being, by definition, an exemption from the obligation to disclose information, in this case to Congress, the necessity must be of such high degree as to outweigh the public interest in enforcing that obligation in a particular case. In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President the power to invoke the privilege. She may of course authorize the Executive Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must state that the authority is By order of the President, which means that he personally consulted with her. The privilege being an extraordinary power, it must be wielded only by the highest official in the executive hierarchy. In other words, the President may not authorize her subordinates to exercise such power. There is even less reason to uphold such authorization in the instant case where the authorization is not explicit but by mere silence. Section 3, in relation to Section 2(b), is further invalid on this score. It follows, therefore, that when an official is being summoned by Congress on a matter which, in his own judgment, might be covered by executive privilege, he must be afforded reasonable time to inform the President or the Executive Secretary of the possible need for invoking the privilege. This is necessary in order to provide the President or the Executive Secretary with
fair opportunity to consider whether the matter indeed calls for a claim of executive privilege. If, after the lapse of that reasonable time, neither the President nor the Executive Secretary invokes the privilege, Congress is no longer bound to respect the failure of the official to appear before Congress and may then opt to avail of the necessary legal means to compel his appearance. The Court notes that one of the expressed purposes for requiring officials to secure the consent of the President under Section 3 of E.O. 464 is to ensure respect for the rights of public officials appearing in inquiries in aid of legislation. That such rights must indeed be respected by Congress is an echo from Article V Section 21 of the Constitution mandating that the rights of persons appearing in or affected by such inquiries shall be respected. 21. (a) May the Government withhold the payment of any money due the accountable officer to cover his cash shortage? Ans: Yes, except retirement pay or gratuity due him/her, as soon as the cash shortage is ascertained and not contested. Under Paragraph 8 of the aforequoted Guidelines, the examiner/auditor is authorized to direct the proper officer to withhold the payment of any money due the accountable officer, except retirement pay or gratuity due her/him, as soon as the cash shortage is ascertained and is not contested. In this case, respondent COA Regional Director Linda N. Solite stated in her Comment that petitioner Santiago never disputed the second and final demand letter dated November 23, 1998 informing her of her cash shortage. Hence, the directive of State Auditor del Rosario to withhold petitioners salary was in order. The State Auditors finding of cash shortage against petitioner municipal treasurer, which has not been satisfactorily disputed is prima facie evidence against her. The prima facie evidence suffices for the withholding of petitioners salary, in order to safeguard the interest of the Government. (Santiago vs. Commission on Audit, 490 SCRA 661, June 15, 2006) (b) May the withheld salary be offset against the cash shortage? Ans: No, until judgment is rendered by a competent Court or the liability is admitted. However, it must be stated that although State Auditor del Rosario properly directed the Municipal Mayor of Goa, Camarines Sur to withhold petitioners salary and other emoluments, she incorrectly directed that the same be applied or set off against petitioners cash shortage. As ruled in Villanueva, before set-off can take place under Section 624 of the Revised Administrative Code of 1919, as amended, now Section 21 of the Administrative Code of 1987, a persons indebtedness to the government must be one that is admitted by him or pronounced by final judgment of a competent court. In this case, the indebtedness was not admitted by petitioner and a competent court has not yet pronounced final judgment thereon.
As a result, the amount of petitioners salary remitted to the local government treasurer as payment of petitioners cash shortage should be considered merely withheld until final resolution on her indebtedness. In the event that petitioner is found not liable for the cash shortage, the withheld salary and other emoluments will be released to her; otherwise, it will be applied in payment of her indebtedness. (Ibid) 22. (a) May the Office of the Ombudsman investigate constitutional officers removable only by impeachment? Ans: Yes. Section 22 thereof vests in the Office of the Ombudsman the power to investigate any serious misconduct in the office allegedly committed by officials removable by impeachment, for the purpose of filing a verified complaint for impeachment, if warranted. (Office of the Ombudsman vs. Court of Appeals, 491 SCRA 92, June 16, 2006)
(b) May the Office of the Ombudsman preventively suspend public officials facing administrative charges, determine the appropriate penalty and impose such penalty? Ans: Yes. Still in connection with their administrative disciplinary authority, the Ombudsman and his deputies are expressly given the power to preventively suspend public officials and employees facing administrative charges in accordance with Section 24 of Republic Act No. 6770: Sec. 24. Preventive Suspension The Ombudsman and 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 respondents 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 months, without pay, 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. Section 25 thereof sets forth the penalties as follows: Sec. 25. Penalties (1) In administrative proceedings under Presidential Decree No. 807, the penalties and rules provided therein shall be applied. (2) In other administrative proceedings, the penalty ranging from suspension without pay for one year to dismissal with forfeiture of benefits or a fine ranging from five thousand pesos (PhP5,000.00) to twice the amount malversed, illegally taken or lost, or both at the discretion of the Ombudsman, taking into consideration circumstances that mitigate or aggravate the liability of the officer or employee found guilty of the complaint or charges.
As referred to in the above provision, under Presidential Decree No. 807, the penalties that may be imposed by the disciplining authority in administrative disciplinary cases are removal from the service, transfer, demotion in rank, suspension for not more than one year without pay, fine in an amount not exceeding six months salary, or reprimand. Section 27 of the Republic Act No. 6770 provides for the period of effectivity and finality of the decisions of the Office of the Ombudsman: Sec. 27. Effectivity and Finality of Decisions (a) All provisionary orders of the Office of the Ombudsman are immediately effective and executory. A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must be filed within five (5) days after receipt of written notice and shall be entertained only on any of the following grounds: (1) New evidence has been discovered which materially affects the order, directive or decision; (2) Errors of law or irregularities have been committed prejudicial to the interest of the movant. The motion for reconsideration shall be resolved within three (3) days from filing: Provided, That only one motion for reconsideration shall be entertained. Findings of facts by the Office of the Ombudsman when supported by substantial evidence are conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one months salary shall be final and unappealable. [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.] The above rules may be amended or modified by the Office of the Ombudsman as the interest of justice may require. All these provisions in Republic Act No. 6770 taken together reveal the manifest intent of the lawmakers to bestow on the Office of the Ombudsman full administrative disciplinary authority. These provisions cover the entire gamut of administrative adjudication which entails the authority to inter alia, receive complaints, conduct investigations, hold hearings in accordance with its rules of procedure, summon witnesses and require the production of documents, place under preventive suspension public officers and employees pending an investigation, deter mine the appropriate penalty imposable on erring public officers or employees as warranted by the evidence, and, necessarily, impose the said penalty. (Ibid) Election
23. (a) What is a pre-proclamation controversy? Ans: A pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the Board of Canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 of the Omnibus Election Code in relation to the preparation, transmission, receipt, custody and appreciation of election returns. The proceedings are summary in nature in that there is no room for the presentation of evidence aliunde, the inspection of voluminous documents, and for meticulous technical examinations which take up considerable time. (Sinsuat vs. Commission on Elections, 492 SCRA 391, June 23, 2006)
(b) What is the effect of filing an election protest on the pre-proclamation controversy? Ans: As a rule, the filing of an election protest (1) precludes the subsequent filing of a pre-proclamation controversy or (2) amount to the abandonment of one earlier filed, thus depriving the COMELEC of the authority to inquire into and pass upon the title of the protestee or the validity of his proclamation. The reason for this rule is that once the competent tribunal has acquired jurisdiction of an election protest, all questions relative thereto will have to be decided in the case itself and not in another proceeding to prevent confusion and conflict of authority. (Ibid)
(c) May the candidate who obtains the second highest number of votes be proclaimed in case the winner is disqualified? State the exception. Ans: It is now settled doctrine that the COMELEC cannot proclaim as winner the candidate who obtains the second highest number of votes in case the wining candidate is ineligible or disqualified. This rule admits an exception. But this exception is predicated on the concurrence of two requisites, namely: (1) the one who obtained the highest number of votes is disqualified; and (2) the electorate is fully aware in fact and in law of a candidates disqualification so as to bring such awareness within the realm of notoriety but would nonetheless cast their votes in favor of the ineligible candidate. (Ibid) Freedom of Religion (ESTRADA VS. ESCRITOR, 492 SCRA 1[2006]) 24. Facts: The respondent admitted that she began cohabiting with a married man, Luciano D. Quilapio when her husband was still alive and continued to do so after his death and begot a son twenty years of age. Confronted with these facts, the respondent presented a document entitled Declaration of Faithfulness she executed stating among others, that she pledged to the marital relationship with Luciano D. Quilapio, her live-in partner in accordance with the tenets of her church. Quilapio also executed a similar document. In support of her allegation, the respondent presented Gregoria Salazar a former presiding minister of the congregation of the witnesses of Jehovah who affirmed the execution of the document as pledged as in accordance with the doctrines of the said church, citing a passage from Matthew, 5:32 of the Bible. Salvador Reyes, a District
Minister of the Congregation affirmed the testimony of Gregoria Salazar. The Jehovahs Congregation requires that at the time the declarations are executed, the couple cannot secure the approval of the civil authority of the marital relationship. Issue: May the respondent be exempt from the operation of the Family Code on the basis of freedom of religion (free exercise of religion)? Resolution: Thus, we find that in this particular case and under these distinct circumstances, respondent Escritors conjugal arrangement cannot be penalized as she has made out a case for exemption from the law based on her fundamental right to freedom of religion. The Court recognizes that state interests must be upheld in order that freedoms including religious freedom may be enjoyed. In the area of religious exercise as a preferred freedom, however, man stands accountable to an authority higher than the state, and so the state interest sought to be upheld must be so compelling that its violation will erode the very fabric of the state that will also protect the freedom. In the absence of a showing that such state interest exists, man must be allowed to subscribe to the Infinite. Our Constitution adheres to the benevolent neutrality approach that gives room for accommodation of religious exercises as required by the Free Exercise Clause. Thus, in arguing that respondent should be held administratively liable as the arrangement she had was illegal per se because, by universally recognized standards, it is inherently or by its very nature bad, improper, immoral and contrary to good conscience, the Solicitor General failed to appreciate that benevolent neutrality could allow for accommodation of morality based on religion, provided it does not offend compelling state interests. Note: The respondent, a court employee, was absolved from the administrative charge of immorality. 25. a) Define legislative power. Ans: The legislative power has been described generally as the power to make, alter, and repeal laws. The authority to amend, change, or modify a law is thus part of such legislative power. It is the peculiar province of the legislature to prescribe general rules for the government of society. However, the legislature cannot foresee every contingency involved in a particular problem that it seeks to address. Thus, it has become customary for it to delegate to instrumentalities of the executive department, known as administrative agencies, the power to make rules and regulations. This is because statutes are generally couched in general terms which express the policies, purposes, objectives, remedies and sanctions intended by the legislature. The details and manner of carrying out the law are left to the administrative agency charged with its implementation. In this sense, rules and regulations promulgated by an administrative agency are the product of a delegated power to create new or additional legal provisions that have the effect of law. Hence, in general, rules and regulations issued by an administrative agency, pursuant to the authority conferred upon it by law, have the force and effect, or partake of the nature, of a statute. b) What is the doctrine of necessary implication in relation to rule making power?
Ans: The law delegated to the HDMF the rule-making power since this is necessary for the proper exercise of its authority to administer the Fund. Following the doctrine of necessary implication, this grant of express power to formulate implementing rules and regulations must necessarily include the power to amend, revise, alter, or repeal the same. (Yazaki Torres Manufacturing, Inc. vs. Court of Appeals, 493 SCRA 86 [June 27, 2006]) 26. a) Has the Supreme Court the power to pass upon the qualification of Gregory Ong to be appointed Justice of the Supreme Court? Ans: Yes. While an appointment is an essentially discretionary executive power, it is subject to the limitation that the appointee should possess none of the disqualifications but all the qualifications required by law. Where the law prescribes certain qualifications for a given office or position, courts may determine whether the appointee has the requisite qualifications, absent which, his right or title thereto may be declared void. (Engao vs. Court of Appeals, 493 SCRA 323 [June 27, 2006]) b) Is Justice Ong a natural born Filipino citizen? Ans: Yes, being born of a Filipino mother, as found by the Department of Justice, and having taken his oath of allegiance to the Republic of the Philippines upon reaching the age of majority when he took his oath of office as Public Prosecutor and as Justice of the Sandiganbayan. He is a natural born Filipino citizen by express provision of the 1987 Constitution that those born under the 1935 Constitution of Filipino mothers and who took their oath of allegiance to the Philippines upon reaching the age of majority are natural borne Filipino citizens. Note: Under the Constitution, Justices of the Supreme Court, the Court of Appeals, the Sandiganbayan and other Collegiate Courts must be natural borne Filipino citizens. 27. a) Is the appointment of Magdangal Elma as Charman of the PCGG and as Presidential Legal Counsel Constitutional? Ans: No. The dual unconstitutional. appointment to incompatible offices is
The issue in this case is whether the position of the PCGG Chairman or that the CPLC falls under the prohibition against multiple offices imposed by Section 13, Article VII and Section 7, par. 2, Article IX-B of the 1987 Constitution, which provide that: Art. VII. xxxx Section 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. x x x Art. IX-B. xxxx
Section 7. No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. To harmonize these two provisions, this Court, in the case of Civil Liberties Union v. Executive Secretary, construed the prohibition against multiple offices contained in section 7, Article IX-B and Section 13, Article VII in this manner: [T]hus, while all other appointive officials in the civil service are allowed to hold other office or employment in the government during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. In other words, Section 7, Article IX-B is meant to lay down the general rule applicable to all elective and appointive public officials and employees, while Section 13, Article VII is meant to be the exception applicable only to the President, the VicePresident, Members of the Cabinet, their deputies and assistants. The general rule contained in Article IX-B of the 1987 Constitution permits an appointive official to hold more than one office only if allowed by law or by the primary functions of his position. In the case of Quimson v. Ozaeta, this Court ruled that, [t]here is no legal objection to a government official occupying two government offices and performing the functions of both as long as there is no incompatibility. The crucial test in determining whether incompatibility exists between two offices was laid out in People v. Green whether one office is subordinate to the other, in the sense that one office has the right to interfere with the other. [I]ncompatibility between two offices, is an inconsistency in the functions of the two; x x x Where one office is not subordinate to the other, nor the relations of the one to the other such as are inconsistent and repugnant, there is not that incompatibility from which the law declares that the acceptance of the one is the vacation of the other. The force of the word, in its application to this matter is, that from the nature and relations to each other, of the two places, they ought not to be held by the same person, from the contrariety and antagonism which would result in the attempt by one person to faithfully and impartially discharge the duties of one, toward the incumbent of the other. x x x The offices must subordinate, one [over] the other, and they must, per se, have the right to interfere, one with the other, before they are incompatible at common law. x x x In this case, an incompatibility exists between the positions of the PCGG Chairman and the CPLC. The duties of the CPLC include giving independent and impartial legal advice on the actions of the heads of various executive departments and agencies and to review investigations involving heads of executive departments and agencies, as well as other Presidential appointees. The PCGG is, without question, an agency under the Executive Department. Thus, the actions of the PCGG Chairman are subject to the review of the CPLC. In Memorandum Order No. 152, issued on 9 July 2004, the Office of the President, in an effort to promote efficiency and effective coordination, clearly delineated and specified the functions and duties of its senior officers as such:
Section 1. The Chief Presidential Legal Counsel (CPLC) shall advise and provide the President with legal assistance on matters requiring her action, including matters pertaining to legislation. The CPLC shall have the following duties and functions: a. Exercise administrative supervision over the Office of the CPLCP; b. Review and/or draft legal orders referred to her by the President on the following matters that rare subject of decisions of the President; 1. Executive Orders, proclamations, administrative orders, memorandum orders, and other legal documents initiated by the President; 2. Decision on investigation involving Cabinet Secretaries, agency heads, or Presidential appointees with the rank of Secretary conducted by the Presidential Anti-Graft Commission (PAGC); As CPLC, respondent Elma will be required to give his legal opinion on his own actions as PCGG Chairman and review any investigation conducted by the Presidential Anti-Graft Commission, which may involve himself as PCGG Chairman. In such cases, questions on his impartiality will inevitably be raised. This is the situation that the law seeks to avoid in imposing the prohibition against holding incompatible offices. b) What are the exceptions to the rule against holding multiple offices? Ans: The Court cautiously allowed only two exceptions to the rule against multiple offices: (1) those provided for under the Constitution, such as Section 3, Article VII, authorizing the Vice-President to become a member of the Cabinet; or (2) posts occupied by the Executive officials specified in Section 13, Article VII without additional compensation in an ex officio capacity as provided by law and as required by the primary functions of said officials office. The Court further qualified that additional duties must not only be closely related to, but must be required by the officials primary functions. Moreover, the additional post must be exercised in an ex officio capacity, which denotes an act done in an official character, or as a consequence of office, and without any other appointment or authority than that conferred by the office. Thus, it will not suffice that no additional compensation shall be received by virtue of the second appointment, it is mandatory that the second post is required by the primary functions of the first appointment and is exercise in an ex officio capacity. (Public Interest Center, Inc. vs. Elma, 494 SCRA 63 [June 30, 2006])
28.
In the absence of a clear proviso or reference to Section 3(d) of R.A. No. 6981, a witness in a legislative investigation whether or not he is a law enforcement officer, may be admitted into the Witness Protection and Security Benefit Program subject only to the requirements provided for under Section 4. (Acop vs. Guingona, Jr., 383 SCRA 577 [2002]) Is the political law doctrine still in effect in light of the power of judicial review over acts of the legislative or executive done with abuse of discretion? Ans: Yes. While it is conceded that Article VIII, Section 1 of the Constitution has broadened the scope of judicial inquiry into areas normally left to the political departments to decide, such as those relating to national security, it has not altogether done away with political questions such as those
29.
which arise in the field of foreign relations. (Bayan [Bagong Alyansang Makabayan] vs. Zamora, 342 SCRA 449 [2000]) 30. a) Are political subdivisions entitled to exercise police power? Ans: Yes, under the delegated legislative power under the Local Government Code under the General Welfare Clause of the Constitution. Like all LGUs, the City of Marikina is empowered to enact ordinances for the purposes set forth in the Local Government Code (RA 7160). It is expressly vested with police powers delegated to LGUs under the general welfare clause of RA 7160. With this power, LGUs may prescribe reasonable regulations to protect the lives, health, and property of their constituents and maintain peace and order within their respective territorial jurisdictions. Cities and municipalities also have the power to exercise such powers and discharge such functions and responsibilities as may be necessary, appropriate or incidental to efficient and effective provisions of the basic intended primarily to service the needs of their residents and which are financed by their own funds. These infrastructure facilities include municipal or city roads and bridges and similar facilities. There is no question about the public nature and use of the sidewalks in the Marikina Greenheights Subdivision. One of the whereas clauses of PD 1216 (which amended PD 957) declares that open spaces, roads, alleys and sidewalks in a residential subdivision are for public use and beyond the commerce of man. In conjunction herewith. PD 957, as amended by PD 1216, mandates subdivision owners to set aside open spaces which shall be devoted exclusively for the use of the general public. b) May the City of Marikina appropriate public funds for the improvement of sidewalks of a private subdivision before the sidewalks are donated to, or expropriated by the City Government? Ans: No. In Pascual, the validity of RA 920 (An Act Appropriating Funds for Public Works) which appropriated P85,000 for the construction, repair, extension and improvement of feeder roads within a privately-owned subdivision was questioned. The Court held that where the land on which the projected feeder roads were to be constructed belonged to a private person, an appropriation made by Congress for that purpose was null and void. In Young v. City of Manila, the City of Manila undertook the filling of lowlying streets of the Antipolo Subdivision, a privately-owned subdivision. The Court ruled that as long as the private owner retained title and ownership of the subdivision, he was under the obligation to reimburse to the city government the expenses incurred in land-filling the streets. Moreover, the implementing rules of PD 957, as amended by PD 1217, provide that it is the registered owner or developer of a subdivision who has the responsibility for the maintenance, repair and improvement of road lots and open spaces of the subdivision prior to their donation to the concerned LGU. The owner or developer shall be deemed relieved of the responsibility of maintaining the road lots and open space only upon securing a certificate of completion and executing a deed of donation of these road lots and open spaces to the LGU.
Therefore, the use of LGU funds for the widening and improvement of privately-owned sidewalks is unlawful as it directly contravenes Section 335 of RA 7160. This conclusion finds further support from the language of Section 17 of RA 7160 which mandates LGUs to efficiently and effectively provide basic services and facilities. The law speaks of infrastructure facilities intended primarily to service the needs of the residents of the LGU and which are funded out of municipal funds. It particularly refers to municipal roads and bridges and similar facilities. Applying the rules of ejusdem genris, the phrase similar facilities refers to or includes infrastructure facilities like sidewalks owned by the LGU. Thus, RA 7160 contemplates that only the construction, improvement, repair and maintenance of infrastructure facilities owned by the LGU may be bankrolled with local government funds. (Albon vs. Fernando, 494 SCRA 148 [June 30, 2006])
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