Selected Pointers in Political Law

2018 Bar Exam

Norhabib Bin Suod S. Barodi

Associate Professor of Law
MSU College of Law

Archipelago doctrine; regime of islands; Republic of the Philippines v. People’s Republic of

China

1. What is the archipelago doctrine of national territory?

Under this doctrine, the Philippine Archipelago is considered as one integrated unit
instead of being divided into more than seven thousand islands. This assertion, together with
the application of the “straight baseline method,” is what is referred to as the Archipelagic
Doctrine. By using this method, the outermost points of our archipelago are connected with
straight baselines and all waters inside the baselines are considered internal waters. [Suarez,
p. 50]

2. Explain the concept of regime of islands as applied in the contested land territories of KIG
and the Scarborough Shoal.

The contested land territories of Kalayaan Island Group, which is located in the
disputed Spratly Archipelago, and Bajo de Masinloc or the Scarborough Shoal are treated
under the “regime of islands” provided for by UNCLOS, Article 121. This means that each
group of islands is entitled to claim its own maritime zones, and are not enclosed within
the archipelagic baseline. [Santiago, p. 7]

3. What are the salient findings and declarations of the UN Permanent Court of Arbitration in
Republic of the Philippines v. People’s Republic of China?

Resolution of Motion for Reconsideration of the main decision in Saguisag v. Executive
Secretary Ochoa, G.R. No. 212426, July 26, 2016:

While this Motion for Reconsideration was pending resolution, the United Nations
Permanent Court of Arbitration tribunal constituted under the Convention on the Law of the
Sea (UNCLOS) in Republic of the Philippines v. People's Republic of China released its
monumental decision on the afternoon of 12 July 2016. The findings and declarations in this
decision contextualizes the security requirements of the Philippines, as they indicate an
alarming degree of international law violations committed against the Philippines' sovereign
rights over its exclusive economic zone (EEZ).

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 Firstly, the tribunal found China's claimed nine-dash line, which included sovereign
claims over most of the West Philippine, invalid under the UNCLOS for exceeding the limits
of China's maritime zones granted under the convention.

Secondly, the tribunal found that the maritime features within the West Philippine
Sea/South China Sea that China had been using as basis to claim sovereign rights within the
Philippines' EEZ were not entitled to independent maritime zones.

Thirdly, the tribunal found that the actions of China within the EEZ of the Philippines,
namely: forcing a Philippine vessel to cease-and-desist from survey operations, the
promulgation of a fishing moratorium in 2012,the failure to exercise due diligence in
preventing Chinese fishing vessels from fishing in the Philippines' EEZ without complying with
Philippine regulations, the failure to prevent Chinese fishing vessels from harvesting

endangered species, the prevention of Filipino fishermen from fishing in traditional fishing
grounds in Scarborough Shoal, and the island-building operations in various reefs, all violate
its obligations to respect the rights of the Philippines over its EEZ.


Fourthly, the tribunal rejected Chinese claims of sovereignty over features within the
Philippine's EEZ, and found that its construction of installations and structures, and later on
the creation of an artificial island, violated its international obligations.

Fifthly, the tribunal found that the behaviour of Chinese law enforcement vessels
breached safe navigation provisions of the UNCLOS in respect of near-collision instances
within Scarborough Shoal.

Finally, the tribunal found that since the arbitration was initiated in 2013, China has
aggravated the dispute by building a large artificial island on a low-tide elevation located in
the EEZ of the Philippines aggravated the Parties' dispute concerning the protection and
preservation of the marine environment at Mischief Reef by inflicting permanent, irreparable
harm to the coral reef habitat of that feature, extended the dispute concerning the protection
and preservation of the marine environment by commencing large-scale island-building and
construction works at Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef,
Hughes Reef, and Subi Reef, aggravated the dispute concerning the status of maritime
features in the Spratly Islands and their capacity to generate entitlements to maritime zones
by permanently destroying evidence o f the natural condition o f Mischief Reef, Cuarteron
Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, and Subi Reef.

Amendments and revision; two-part test to determine whether the proposal constitutes
amendment or revision; effect of non-compliance with the amendatory process

4. How to determine whether the proposal constitutes amendment or revision?

By applying the two-part test, i.e., the Quantitative test and the Qualitative test.
(Lambino v. Comelec, G.R. No. 174153, October 25, 2006, 505 SCRA 160)
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First, QUANTITATIVE TEST, which asks whether the proposed change is so extensive
in its provisions as to change directly the “substantial entirety” of the Constitution by the
deletion or alteration of numerous provisions. The court examines only the number of
provisions affected and does not consider the degree of the change. [How many provisions
will be affected by the proposed change?]

Second, QUALITATIVE TEST, which inquires into the qualitative effects of the
proposed change in the Constitution. The main inquiry is whether the change will
“accomplish such far-reaching changes in the nature of our basic governmental plan as to
amount to a revision.” [What kind of change is sought to be effected by the proposal?]

5. May the constitution be changed without following the process prescribed by the existing
constitution?

Generally, no, because by adopting the article on amendments and revision the
people themselves have imposed on themselves a constitutional limitation on their capacity
to dispose of the Constitution. However, since the people are the ultimate legal sovereign,
they may in extraordinary circumstances decide to disregard the constitution. When they do
so, the change they effect is neither amendment nor revision in the constitutional sense but
“revolution.” The ratification of the 1973 Constitution was done in an extra-constitutional
way. Ratification cases, 50 SCRA 30, 373, note 3 (1973). Similarly, the Freedom Constitution
was promulgated by President Aquino under her revolutionary authority conferred by the
people through the EDSA event. [Bernas, p. 542]

Citizenship of foundlings in the Philippines; dual citizenship by virtue of birth v. dual citizenship
by naturalization

6. Why is Grace Poe-Llamanzares, a foundling, a natural-born Filipino citizen?

She is a natural-born Filipino citizen because she is a citizen of the Philippines from
birth without having to perform any act to acquire or perfect her Philippine citizenship. (See
Section 2, Article IV, 1987 Constitution)

Poe-Llamanzares v. Comelec, G.R. No. 221697, March 8, 2016:

The fact is that petitioner's blood relationship with a Filipino citizen is
DEMONSTRABLE.

xxx xxx

The factual issue is not who the parents of petitioner are, as their identities are
unknown, but whether such parents are Filipinos.

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 xxx xxx

All of the foregoing evidence, that a person with typical Filipino features is abandoned
in Catholic Church in a municipality where the population of the Philippines is overwhelmingly
Filipinos such that there would be more than a 99% chance that a child born in the province
would be a Filipino, would indicate more than ample probability if not statistical certainty,
that petitioner's parents are Filipinos. That probability and the evidence on which it is based
are admissible under Rule 128, Section 4 of the Revised Rules on Evidence.

xxx xxx

As a matter of law, 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
enumeration with respect to foundlings, there is a need to examine the intent of the framers.

xxx xxx

As pointed out by petitioner as well as the Solicitor General, the deliberations of the
1934 Constitutional Convention show that the framers intended foundlings to be covered by
the enumeration.

xxx xxx

The Solicitor General makes the further point that the framers "worked to create a
just and humane society," that "they were reasonable patriots and that it would be unfair to
impute upon them a discriminatory intent against foundlings." He exhorts that, given the
grave implications of the argument that foundlings are not natural-born Filipinos, the Court
must search the records of the 1935, 1973 and 1987 Constitutions "for an express intention
to deny foundlings the status of Filipinos. The burden is on those who wish to use the
constitution to discriminate against foundlings to show that the constitution really intended
to take this path to the dark side and inflict this across the board marginalization."

We find no such intent or language permitting discrimination against foundlings. On
the contrary, all three Constitutions guarantee the basic right to equal protection of the laws.
All exhort the State to render social justice. Of special consideration are several provisions in
the present charter: Article II, Section 11 which provides that the "State values the dignity of
every human person and guarantees full respect for human rights," Article XIII, Section 1
which mandates Congress to "give highest priority to the enactment of measures that protect
and enhance the right of all the people to human dignity, reduce social, economic, and
political inequalities x x x" and Article XV, Section 3 which requires the State to defend the
"right of children to assistance, including proper care and nutrition, and special protection
from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their

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 development." Certainly, these provisions contradict an intent to discriminate against
foundlings on account of their unfortunate status.

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. The most basic of such laws is
Article 15 of the Civil Code which provides that "[l]aws relating to family rights, duties, status,
conditions, legal capacity o f persons are binding on citizens of the Philippines even though
living abroad." Adoption deals with status, and a Philippine adoption court will have
jurisdiction only if the adoptee is a Filipino.

xxx xxx

Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing the Rules
to Govern the Inter-Country Adoption of Filipino Children and For Other Purposes" (otherwise
known as the "Inter-Country Adoption Act of 1995"), R.A. No. 8552, entitled "An Act
Establishing the Rules and Policies on the Adoption of Filipino Children and For Other
Purposes" (otherwise known as the Domestic Adoption Act of 1998) and this Court's A.M. No.
02-6-02-SC or the "Rule on Adoption," all expressly refer to "Filipino children" and include
foundlings as among Filipino children who may be adopted.

xxx xxx

Foundlings are likewise citizens under international law. ..

xxx xxx

Universal Declaration of Human Rights ("UDHR") has been interpreted by this Court
as part of the generally accepted principles of international law and binding on the State.
Article 15 thereof states:

1. Everyone has the right to a nationality.


2. No one shall be arbitrarily deprived of his nationality nor denied the right to change
his nationality.

The Philippines has also ratified the UN Convention on the Rights of the Child (UNCRC).
Article 7 of the UNCRC imposes the following obligations on our country:

Article 7

1. The child shall be registered immediately after birth and shall have the right from birth to
a name, the right to acquire a nationality and as far as possible, the right to know and be
cared for by his or her parents.
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2. States Parties shall ensure the implementation of these rights in accordance with their
national law and their obligations under the relevant international instruments in this field,
in particular where the child would otherwise be stateless.

In 1986, the country also ratified the 1966 International Covenant on Civil and Political
Rights (ICCPR). Article 24 thereof provide for the right of every child "to acquire a nationality:"

Article 24

1. Every child shall have, without any discrimination as to race, colour, sex, language, religion,
national or social origin, property or birth, the right, to such measures of protection as are
required by his status as a minor, on the part of his family, society and the State.

2. Every child shall be registered immediately after birth and shall have a name.

3. Every child has the right to acquire a nationality.

The common thread of the UDHR, UNCRC and ICCPR is to obligate the Philippines to
grant nationality from birth and ensure that no child is stateless. . .

The principles found in two conventions, while yet unratified 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 ofthe country ofbirth," to wit:

Article 14

A child whose parents are both unknown shall have the nationality o f the country o f
birth. I f the child's parentage is established, its nationality shall be determined by the rules
applicable in cases where the parentage is known.

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

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 o f Statelessness:

Article 2

A foundling found in the territory of a Contracting State shall, in the absence of proof
to the contrary, be considered to have been within the territory of parents possessing the
nationality of that State.
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xxx xxx

Adopting these legal principles from the 1930 Hague Convention and the 1961
Convention on Statelessness is rational and reasonable and consistent with the }us sanguinis
regime in our Constitution. The presumption o f natural-born citizenship o f foundlings stems
from the presumption that their parents are nationals of the Philippines. As the empirical
data provided by the PSA show, that presumption is at more than 99% and is a virtual
certainty.

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 own 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.

7. What is the difference of “dual citizens by virtue of birth” and “dual citizens by
naturalization” in connection with the requirement of oath of renunciation under RA 9225?

“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 carries with it an implied renunciation of
foreign citizenship. [see Cordora vs. Comelec, 2009] 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.” [Maquiling v. Comelec]

Principle of sovereign equality and independence; effect of a foreign government’s failure to
invoke its immunity from suit in a proper pleading

8. In compliance with the Gulf Cooperative Countries (GCC) States' requirement that only
GCC-accredited medical clinics/hospitals' examination results will be honored by the GCC
States' respective embassies, the Department of Health issued Administrative Order No. 5,
Series of 2001 (AO 5-01), which directed the referral decking system or equal distribution of
migrant workers among the several clinics who are members of GCC Approved Medical
Centers Association, Inc. (GAMCA). AO 5-01 required an OFW applicant to first go to a
GAMCA Center which, in turn, will refer the applicant to a GAMCA clinic or hospital.
However, on March 8, 2010, R.A. 10022 lapsed into law. R.A. 10022, under Section 16
thereof, totally prohibits the referral decking system or the decking practice. GAMCA,
asserting that it is an agent of the GCC States, questioned the constitutionality of Section
16 of the law for it violates the principle of sovereign equality and independence. According
to GAMCA, the referral decking system, as part of the application procedure for obtaining
visas to enter the GCC States, is an exercise of the sovereign power of the GCC States to
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 protect their nationals from health hazards, and their diplomatic power to regulate and
screen entrants to their territories. Thus, GAMCA contends that to restrain an agent of the
GCC States under the control and acting in accordance with the direction of these GCC
States, restrains the GCC States. Does the application of Section 16 of Republic Act
No.10022 to the GAMCA violate the international customary principles of sovereign
equality and independence?

The prohibition against the referral decking system against GAMCA does not violate
the principle of sovereign equality and independence. . .While the principles of sovereign
independence and equality have been recognized in Philippine jurisprudence, our recognition
of this principle does not extend to the exemption of States and their affiliates from
compliance with Philippine regulatory laws. . .The principle of sovereign equality and
independence of states does not exempt GAMCA from the referral decking system prohibition
under RA No. 10022.

Our recognition of sovereign immunity, however, has never been unqualified. While
we recognized the principles of independence and equality of States to justify a State's
sovereign immunity from suit, we also restricted state immunity to acts jus imperii, or public
acts. We said that once a State enters into commercial transactions (jus gestionis), then it
descends to the level of a private individual, and is thus not immune from the resulting
liability and consequences of its actions.

By this recognition, we acknowledge that a foreign government acting in its jus imperii
function cannot be held liable in a Philippine court. Philippine courts, as part of the Philippine
government, cannot and should not take jurisdiction over cases involving the public acts of a
foreign government. Taking jurisdiction would amount to authority over a foreign
government, and would thus violate the principle of sovereign independence and equality.

This recognition is altogether different from exempting governments whose agents
are in the Philippines from complying with our domestic laws. We have yet to declare in a
case that the principle of sovereign independence and equality exempts agents of foreign
governments from compliance with the application o f Philippine domestic law.

In the present case, GAMCA has not adduced any evidence in the court below, nor has
it presented any argument before us showing that the principle of sovereign equality and
independence has developed into an international custom shielding state agents from
compliance with another state's domestic laws. Under this situation, the Court is in no
position to determine whether the practice that GAMCA alleges has indeed crystallized into
an international custom.

GAMCA has never proven in this case, too, that the GCC has extended its sovereign
immunity to GAMCA. Sovereign immunity belongs to the State, and it must first be extended
to its agents before the latter may be considered to possess sovereign immunity.

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 Significantly, the Court has even adopted a restrictive approach in recognizing state
immunity, by distinguishing between a State's jus imperii and jus gestionis. It is only when a
State acts in its jus imperii function that we recognize state immunity.

We point out furthermore that the prohibition against the referral decking system
applies to hospitals and clinics, as well as to OFW employers, and does not seek to interfere
with the GCC's visa requirement processes. RA 10022 prohibits hospitals and clinics in the
Philippines from practicing the referral decking system, and employers from requiring OFWs
to procure their medical examinations from hospitals and clinics practicing the referral
decking system.

The regulation applies to Philippine hospitals and clinics, as well as to employers of
OFWs. It does not apply to the GCCs and their visa processes. That the regulation could affect
the OFWs' compliance with the visa requirements imposed by GCCs does not place it outside
the regulatory powers of the Philippine government.

In the same manner, GCC states continue to possess the prerogative to apply their
visa requirements to any foreign national, including our OFWs, who seeks to enter their
territory; they may refuse to grant them entry for failure to comply with the referral decking
system, or they may adjust to the prohibition against the referral decking system that we
have imposed. These prerogatives lie with the GCC member-states and do not affect at all the
legality of the prohibition against the referral decking system. (Association of Medical Clinics
for Overseas Workers (AMCOW) v. GCC Approved Medical Centers Association, G.R. No.
207132, December 6, 2016)

9. While transiting the Sulu Sea, the USS Guardian ship, a US navy vessel, ran aground on the
South Shoal of the Tubbataha Reefs . No one was injured in the incident, and there have
been no reports of leaking fuel or oil. Because of this incident, a petition for Writ of
Kalikasan under A.M. No. 09-6-8-SC (Rules of Procedure for Environmental Cases) was filed
before the Supreme Court against Scott H. Swift in his capacity as Commander of the US 7th
Fleet, Mark A. Rice in his capacity as the Commanding Officer of USS Guardian and Lt. Gen.
Terry G. Robling, US Marine Corps Forces, Pacific and Balikatan 2013 Exercises Co-Director
(US respondents); Pres. Aquino in his capacity as Commander in Chief of AFP; DFA Sec.
Albert Del Rosario; Exec. Sec. Paquito Ochoa; DND Sec. Voltaire Gazmin; DENR Sec. Jesus
Paje, et. als (Philippine Respondents). However, only the Philippine respondents filed their
comment to the petition. The US respondents did not submit any pleading or
manifestation. Does the principle of state immunity bar the exercise of jurisdiction by the
Supreme Court over the persons of the US respondents?

“In this case, the US respondents were sued in their official capacity as commanding
officers of the US Navy who had control and supervision over the USS Guardian and its crew.
The alleged act or omission resulting in the unfortunate grounding of the USS Guardian on
the TRNP was committed while they were performing official military duties. Considering
that the satisfaction of a judgment against said officials will require remedial actions and
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 appropriation of funds by the US government, the suit is deemed to be one against the US
itself. The principle of State immunity therefore bars the exercise of jurisdiction by this
Court over the persons of respondents Swift, Rice, and Robling.” (Most Rev. Pedro Arigo,
et.al v. Scott H. Swift, et.al, G.R. No. 206510, September 16, 2014)

10. The University of the Philippines (“U.P.”) signed a contract with Stern Builders Company
(“SBC”) for the expansion of Arts and Sciences Building in its Los Banos campus. U.P. failed
to pay the full balance of its obligation to SBC. SBC filed a civil suit against U.P. to collect
the outstanding balance under its contract with U.P. and also asked for award of damages.
The trial court allowed the garnishment of funds of U.P. from its depository bank to cover
its outstanding obligation to SBC as well awards of actual damages of ₱ 5,716,729.00, moral
damages of ₱ 10,000,000.00 and attorney’s fees of ₱ 150,000.00 plus ₱ 1,500.00 per
appearance. Was the order of garnishment proper?

No. Trial judges should not immediately issue writs of execution or garnishment
against the Government or any of its subdivisions, agencies and instrumentalities to enforce
money judgments. They should bear in mind that the primary jurisdiction to examine, audit
and settle all claims of any sort due from the Government or any of its subdivisions, agencies
and instrumentalities pertains to the Commission on Audit (COA) pursuant to Presidential
Decree No. 1445 (Government Auditing Code of the Philippines). (University of the Philippines
v. Hon.Dizon and Stern Builders, 679 SCRA 54) [Pointers in Political Law 2017 BAR EXAMS by
Professor Victoria V. Loanzon]

In the matter of military takeover of the Bureau of Customs

11. What does the Constitution provide about the military takeover of a civilian agency?

Civilian authority is, at all times, supreme over the military. The Armed Forces of the
Philippines is the protector of the people and the State. Its goal is to secure the sovereignty
of the State and the integrity of the national territory. [Section 3, Article II]

No member of the armed forces in the active service shall, at any time, be appointed
or designated in any capacity to a civilian position in the Government including government-
owned or controlled corporations or any of their subsidiaries. [Section 5(4), Article XVI]

12. The President issued Letter of Instruction (LOI) ordering the deployment of members of the
Philippine Marines in the metropolis to conduct joint visibility patrols with members of the
Philippine National Police in various shopping malls. Will this not violate the civilian
supremacy clause under Section 3, Article II of the Constitution? Does this not amount to
an "insidious incursion" of the military in the task of law enforcement in violation of Section
5(4), Article XVI of the Constitution?

The deployment of the Marines does not constitute a breach of the civilian supremacy
clause. The calling of the marines in this case constitutes permissible use of military assets
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 for civilian law enforcement. x x x The limited participation of the Marines is evident in the
provisions of the LOI itself, which sufficiently provides the metes and bounds of the Marines'
authority. It is noteworthy that the local police forces are the ones in charge of the visibility
patrols at all times, the real authority belonging to the PNP. In fact, the Metro Manila Police
Chief is the overall leader of the PNP-Philippine Marines joint visibility patrols. Under the LOI,
the police forces are tasked to brief or orient the soldiers on police patrol procedures. It is
their responsibility to direct and manage the deployment of the Marines. It is, likewise, their
duty to provide the necessary equipment to the Marines and render logistical support to
these soldiers. In view of the foregoing, it cannot be properly argued that military authority
is supreme over civilian authority.

Moreover, the deployment of the Marines to assist the PNP does not unmake the
civilian character of the police force. Neither does it amount to an “insidious incursion” of
the military in the task of law enforcement in violation of Section 5[4], Article XVI of the
Constitution.

In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the
AFP, by his alleged involvement in civilian law enforcement, has been virtually appointed to
a civilian post in derogation of the aforecited provision. The real authority in these
operations, as stated in the LOI, is lodged with the head of a civilian institution, the PNP, and
not with the military. Such being the case, it does not matter whether the AFP Chief actually
participates in the Task Force Tulungan since he does not exercise any authority or control
over the same. Since none of the Marines was incorporated or enlisted as members of the
PNP, there can be no appointment to a civilian position to speak of. Hence, the deployment
of the Marines in the joint visibility patrols does not destroy the civilian character of the PNP.

Considering the above circumstances, the Marines render nothing more than
assistance required in conducting the patrols. As such, there can be no “insidious incursion”
of the military in civilian affairs nor can there be a violation of the civilian supremacy clause
in the Constitution. (IBP v. Hon. Ronaldo B. Zamora, G.R. No. 141284, Aug. 15, 2000) [Prof.
Edwin Rey Sandoval Notes in Political Law]

13. State the guidelines for screening Party-List Participants.

In determining who may participate in the coming 13 May 2013 and subsequent
party-list elections, the COMELEC shall adhere to the following parameters:

1. Three different groups may participate in the party-list system: (1) national
parties or organizations, (2) regional parties or organizations, and (3) sectoral parties
or organizations.

2. National parties or organizations and regional parties or organizations do not
need to organize along sectoral lines and do not need to represent any
“marginalized and underrepresented” sector.
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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.

(What happens when political parties field candidates in legislative district elections?
Can they participate in party-list elections?)

A political party, whether major or not, that fields candidates in legislative
district elections can participate in party- list elections only 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 overseasworkers. 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.

(How about their nominees?)

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.



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Duty of the Congress to convene under Section 18, Article VII, meaning of.

14. Is it mandatory upon Congress to automatically convene in joint session in the event that
the President proclaims a state of martial law and/or suspends the privilege of the writ of
habeas corpus in the Philippines or any part thereof?

We now come to the crux of the present petitions - the issue of whether or not under
Article VII, Section 18 of the 1987 Constitution, it is mandatory for the Congress to
automatically convene in joint session in the event that the President proclaims a state of
martial law and/or suspends the privilege of the writ of habeas corpus in the Philippines or
any part thereof.

The Court answers in the negative. The Congress is not constitutionally mandated
to convene in joint session except to vote jointly to revoke the President's declaration or
suspension.

By the language of Article VII, Section 18 of the 1987 Constitution, the Congress is only
required to vote jointly to revoke the President's proclamation of martial law and/or
suspension of the privilege of the writ of habeas corpus. (Padilla v. Congress of the
Philippines, G.R. No. 231671, July 25, 2017).

xxx xxx

It is worthy to stress that the provision does not actually refer to a "joint session."
While it may be conceded, subject to the discussions below, that the phrase "voting jointly"
shall already be understood to mean that the joint voting will be done "in joint session,"
notwithstanding the absence of clear language in the Constitution, still, the requirement that
"[t]he Congress, voting jointly, by a vote of at least a majority of all its Members in regular or
special session, x x x" explicitly applies only to the situation when the Congress revokes the
President's proclamation of martial law and/or suspension of the privilege of the writ of
habeas corpus. Simply put, the provision only requires Congress to vote jointly on the
revocation of the President's proclamation and/or suspension.

Hence, the plain language of the subject constitutional provision does not support the
petitioners' argument that it is obligatory for the Congress to convene in joint session
following the President's proclamation of martial law and/or suspension ofthe privilege ofthe
writ ofhabeas corpus, under all circumstances. (Padilla v. Congress of the Philippines, G.R. No.
231671, July 25, 2017).

No judicial review of internal rule of the House of Representatives that does not violate the
Constitution; political question

15. Petitioners Baguilat, et. al, filed the instant petition for mandamus, insisting that Rep.
Baguilat should be recognized as the Minority Leader in light of: (a) the "long-standing
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 tradition" in the House where the candidate who garnered the second (2nd)-highest number
of votes for Speakership automatically becomes the Minority Leader; and (b) the
irregularities attending Rep. Suarez's election to said Minority Leader position. However,
the circumstances show that the House of Representatives has deviated from this internal
rule that has the character of a “long-standing tradition.” Should the Supreme Court grant
the petition?

After a judicious study of this case, the Court finds that petitioners have no clear legal
right to the reliefs sought. Records disclose that prior to the Speakership Election held on July
25, 2016, then-Acting Floor Leader Rep. Farinas responded to a parliamentary inquiry from
Rep. Atienza as to who would elect the Minority Leader of the House of Representatives. Rep.
Farinas then articulated that: (a) all those who vote for the winning Speaker shall belong to
the Majority and those who vote for other candidates shall belong to the Minority; (b) those
who abstain from voting shall likewise be considered part of the Minority; and (c) the
Minority Leader shall be elected by the members of the Minority. Thereafter, the election
of the Speaker of the House proceeded without any objection from any member of Congress,
including herein petitioners. Notably, the election of the Speaker of the House is the essential
and formative step conducted at the first regular session of the 17th Congress to determine
the constituency of the Majority and Minority (and later on, their respective leaders),
considering that the Majority would be comprised of those who voted for the winning
Speaker and the Minority of those who did not. The unobjected procession of the House at
this juncture is reflected in its Journal No. 1 dated July 25, 2016, which, based on case law, is
conclusive as to what transpired in Congress. . .

xxx xxx

Logically speaking, the foregoing circumstances would show that the House of
Representatives had effectively adopted Rep. Farinas' proposal anent the new rules regarding
the membership of the Minority, as well as the process of determining who the Minority
Leader would be. More significantly, this demonstrates the House's deviation from the "legal
bases" of petitioners' claim for entitlement to the reliefs sought before this Court, namely:
(a) the "long-standing tradition" of automatically awarding the Minority Leadership to the
second placer in the Speakership Elections, i.e., Rep. Baguilat; and (b) the rule that those who
abstained in the Speakership Elections should be deemed as independent Members of the
House of Representatives, and thus, they could not have voted for a Minority Leader in the
person of Rep. Suarez. As will be explained hereunder, the deviation by the Lower House from
the aforesaid rules is not averse to the Constitution.

xxx xxx

However, as may be gleaned from the circumstances as to how the House had
conducted the questioned proceedings and its apparent deviation from its traditional rules,
the Court is hard-pressed to find any attending grave abuse of discretion which would
warrant its intrusion in this case. By and large, this case concerns an internal matter of a
14
 coequal, political branch of government which, absent any showing of grave abuse of
discretion, cannot be judicially interfered with. To rule otherwise would not only embroil
this Court in the realm of politics, but also lead to its own breach of the separation of
powers doctrine. Verily, "[i]t would be an unwarranted invasion of the prerogative of a
coequal department for this Court either to set aside a legislative action as void [only]
because [it] thinks [that] the House has disregarded its own rules of procedure, or to allow
those defeated in the political arena to seek a rematch in the judicial forum when petitioners
can find their remedy in that department itself." [Representative Baguilat, et. al., v. Speaker
Alvarez, et. al., G.R. No. 227757, July 25, 2017]

Period of detention under the Senate’s inherent power of contempt; when does Senate
legislative inquiry terminate

16. What is the period of imprisonment for contempt during inquiries in aid of legislation?
What are the two (2) instances by which the legislative inquiry of the Senate terminates?

The period of detention under the Senate's inherent power of contempt is not
indefinite.

xxx xxx

The Court finds that the period of imprisonment under the inherent power of
contempt by the Senate during inquiries in aid of legislation should only last until the
termination of the legislative inquiry under which the said power is invoked. In Arnault, it
was stated that obedience to its process may be enforced by the Senate Committee if the
subject of investigation before it was within the range oflegitimate legislative inquiry and the
proposed testimony called relates to that subject. Accordingly, as long as there is a legitimate
legislative inquiry, then the inherent power of contempt by the Senate may be properly
exercised. Conversely, once the said legislative inquiry concludes, the exercise of the inherent
power of contempt ceases and there is no more genuine necessity to penalize the detained
witness.

Further, the Court rules that the legislative inquiry of the Senate terminates on two
instances:

First, upon the approval or disapproval of the Committee Report.

Sections 22 and 23 of Senate Rules state:

Sec. 22. Report of Committee. Within fifteen (15) days after the conclusion of the
inquiry, the Committee shall meet to begin the consideration of its Report.

The Report shall be approved by a majority vote of all its members. Concurring
and dissenting reports may likewise be made by the members who do not sign the
15
 majority report within seventy-two (72) hours from the approval o f the report. The
number o f members who sign reports concurring in the conclusions of the Committee
Report shall be taken into account in determining whether the Report has been
approved by a majority of the members: Provided, That the vote of a member who
submits both a concurring and dissenting opinion shall not be considered as part of
the majority unless he expressly indicates his vote for the majority position.

The Report, together with any concurring and/or dissenting opinions, shall
be filed with the Secretary of the Senate, who shall include the same in the next
Order of Business.

Sec. 23. Action on Report. The Report, upon inclusion in the Order of Business,
shall be referred to the Committee on Rules for assignment in the Calendar.
(emphases supplied)

As gleaned above, the Senate Committee is required to issue a Committee Report
after the conduct of the legislative inquiry. The importance of the Committee Report is
highlighted in the Senate Rules because it mandates that the committee begin the
consideration of its Report within fifteen (15) days from the conclusion of the inquiry. The
said Committee Report shall then be approved by a majority vote o f all its members;
otherwise, it is disapproved. The said Report shall be the subject matter ofthe next order
ofbusiness, and it shall be acted upon by the Senate. Evidently, the Committee Report is the
culmination ofthe legislative inquiry. Its approval or disapproval signifies the end of such
legislative inquiry and it is now up to the Senate whether or not to act upon the said
Committee Report in the succeeding order of business. At that point, the power of contempt
simultaneously ceases and the detained witness should be released. As the legislative inquiry
ends, the basis for the detention ofthe recalcitrant witness likewise ends.

Second, the legislative inquiry of the Senate also terminates upon the expiration of
one (1) Congress. As stated in Neri, all pending matters and proceedings, such as unpassed
bills and even legislative investigations, of the Senate are considered terminated upon the
expiration of that Congress and it is merely optional on the Senate of the succeeding Congress
to take up such unfinished matters, not in the same status, but as if presented for the first
time. Again, while the Senate is a continuing institution, its proceedings are terminated upon
the expiration of that Congress at the final adjournment of its last session. Hence, as the
legislative inquiry ends upon that expiration, the imprisonment of the detained witnesses
likewise ends.

State of health of the President

17. Is there an interest of the public in case of the illness of the President?

Article VII, Section 12: In case of serious illness of the President, the public shall be
informed of the state of his health. The members of the Cabinet in charge of national security
16
 and foreign relations and the Chief of Staff of the AFP, shall not be denied access to the
President during such illness.

Midnight appointment; elements of a valid appointment; JBC clustering of nominees for
simultaneous vacancies in collegiate courts

18. Prior to the conduct of the May 2010 elections, then President Gloria Macapagal-Arroyo
issued more than 800 appointments to various positions in several government offices. One
of these appointments was that issued to Atty. Cheloy E. Velicaria-Garafil, who was
appointed State Solicitor II at the Office of the Solicitor General. Atty. Garafil’s appointment
was issued outside the period of the ban on midnight appointment but the appointing
process was completed only during that period, which for purposes of the 2010 elections,
began on 11 March 2010, the start of the ban on midnight appointments. On 30 July 2010,
President Aquino issued EO 2 recalling, withdrawing, and revoking appointments issued by
President Macapagal- Arroyo which violated the constitutional ban on midnight
appointments. Did Atty. Garafil’s appointment violate Section 15, Article VII of the 1987
Constitution (ban on midnight appointment)?

Yes, based on Atty. Cheloy E. Velicaria-Garafil v. Office of the President and Hon.
Solicitor General Jose Anselmo I. Cadiz, G.R. No. 212030, June 16, 2015, where the Supreme
Court held in part, as follows:

“All of petitioners’ appointments are midnight appointments and are void for
violation of Section 15, Article VII of the 1987 Constitution. EO 2 is constitutional.

This ponencia and the dissent both agree that the facts in all these cases show that
“none of the petitioners have shown that their appointment papers (and transmittal letters)

have been issued (and released) before the ban.” The dates of receipt by the MRO, which in
these cases are the only reliable evidence of actual transmittal of the appointment papers by
President Macapagal-Arroyo, are dates clearly falling during the appointment ban. Thus, this
ponencia and the dissent both agree that all the appointments in these cases are midnight
appointments in violation of Section 15, Article VII of the 1987 Constitution.

xxx xxx

The following elements should always concur in the making of a valid (which should
be understood as both complete and effective) appointment: (1) authority to appoint and
evidence of the exercise of the authority; (2) transmittal of the appointment paper and
evidence of the transmittal; (3) a vacant position at the time of appointment; and (4) receipt
of the appointment paper and acceptance of the appointment by the appointee who
possesses all the qualifications and none of the disqualifications. The concurrence of all these
elements should always apply, regardless of when the appointment is made, whether
outside, just before, or during the appointment ban. These steps in the appointment process
should always concur and operate as a single process. There is no valid appointment if the
17
 process lacks even one step. And, unlike the dissent’s proposal, there is no need to further
distinguish between an effective and an ineffective appointment when an appointment is
valid.”

Xxx xxx

Acceptance is indispensable to complete an appointment. Assuming office and taking

the oath amount to acceptance of the appointment. An oath of office is a qualifying
requirement for a public office, a prerequisite to the full investiture of the office.

Xxx xxx

Petitioners have failed to show compliance with all four elements of a valid
appointment. They cannot prove with certainty that their appointment papers were
transmitted before the appointment ban took effect. On the other hand, petitioners admit
that they took their oaths of office during the appointment ban.

19. The JBC, whose function is to recommend qualified nominees to the President, adopted
the policy of clustering of nominees in instances of simultaneous vacancies in collegiate
courts. Is this policy constitutional and within the scope of JBC’s function?

The primordial question then for resolution of the Court is whether President Aquino,
under the circumstances, was limited to appoint only from the nominees in the shortlist
submitted by the JBC for each specific vacancy.

The Court answers in the negative.

xxx xxx

As the Court has categorically declared herein, the clustering by the JBC of nominees
for simultaneous vacancies in collegiate courts constitute undue limitation on and
impairment of the power of the President to appoint members of the Judiciary under the
1987 Constitution. It also deprives qualified nominees equal opportunity to be considered
for all vacancies, not just a specific one.

xxx xxx

Furthermore, the JBC, in sorting the qualified nominees into six clusters, one for every
vacancy, could influence the appointment process beyond its constitutional mandate of
recommending qualified nominees to the President. Clustering impinges upon the
President's power of appointment, as well as restricts the chances for appointment of the
qualified nominees, because (1) the President's option for every vacancy is limited to the five
to seven nominees in the cluster; and (2) once the President has appointed from one cluster,
then he is proscribed from considering the other nominees in the same cluster for the other
18
 vacancies. The said limitations are utterly without legal basis and in contravention of the
President's appointing power. [Aguinaldo v. H.E. Pres. Aquino, G.R. No. 224302, Nov. 29,
2016]

Extension of Martial law

20. Who has the authority to decide the duration of the extension of martial law?

Section 18, Article VII did not also fix the period of the extension of the proclamation
and suspension. However, it clearly gave the Congress the authority to decide on its duration;
thus, the provision states that that the extension shall be "/or a period to be determined by
the Congress." If it were the intention of the framers of the Constitution to limit the extension
to sixty (60) days, as petitioners in G.R. No. 235935 theorize, they would not have expressly
vested in the Congress the power to fix its duration. [Lagman v. Senate President Pimentel,
G.R. No.235935, February 6, 2018]

21. Revocation of amnesty

AMNESTY PARDON
Addressed to political offenses Infractions of the peace of the state
Classes of persons Individuals
No need for distinct acts of acceptance Acceptance necessary
Requires concurrence of Congress Does not
A public act which the courts may take Private act which must be pleaded and proved
judicial notice of
Looks backward and puts into oblivion Looks forward and relieves the pardonee of the
the offense itself consequences of the offense

Nature of foreign relations power of the President

22. May the Executive Department be compelled to espouse the claims of Filipina comfort
women for official apology and other forms of reparations against Japan?

From a Domestic Law Perspective, the Executive Department has the exclusive
prerogative to determine whether to espouse petitioners’ claims against Japan.

xxx xxx

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

19
 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. Neither could petitioners herein assail the said determination by the Executive
Department via the instant petition for certiorari. [Vinuya, et.als. vs. Romulo, et. als.]

Doctrine of Augmentation

23. What are the 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), supra, 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 for
their respective offices; and

(3) The purpose of the transfer is to augment an item in the general appropriations
law for their respective offices. [Araullo v. Aquino, DAP case]

Extent of Supreme Court administrative supervision over lower courts.

24. Office of Administrative Services-Office of the Court Administrator v. Judge Ignacio B.
Macarine, A.M. No. MTJ-10-1770, July 18, 2012

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
20
 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, July
18, 2012]

25. Agcaoili, Jr. v. The Honorable Representative Fariñas, G.R. No. 232395, July 3, 2018

The Court's administrative supervision over lower courts does not equate to the power
to usurp jurisdiction already acquired by lower courts.

Jurisdiction over petitions for habeas corpus and the adjunct authority to issue the
writ are shared by this Court and the lower courts.

Xxx xxx

It is clear from the foregoing that this Court, the CA and the RTC enjoy concurrent
jurisdiction over petitions for habeas corpus. As the Habeas Corpus Petition was filed by
petitioners with the CA, the latter has acquired jurisdiction over said petition to the exclusion
of all others, including this Court. This must be so considering the basic postulate that
jurisdiction once acquired by a court is not lost upon the instance of the parties but continues

until the case is terminated. A departure from this established rule is to run the risk of having
conflicting decisions from courts of concurrent jurisdiction and would unwittingly promote
judicial interference and instability.

Operative fact doctrine

26. Explain 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.208 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.209 It applies
only to cases where extraordinary circumstances exist, and only when the extraordinary
circumstances have met the stringent conditions that will permit its application. [Araullo v.
Aquino, DAP Case]

21
27. Rappler issue: Ownership and management of mass media

The ownership and management of mass media shall be limited to citizens of the
Philippines, or to corporations, cooperatives or associations, wholly owned and managed by
such citizens. [Section 11, Article XVI]

Impeachment under Section 2, Article XI in relation to Republic of the Philippines v. CJ Sereno

28. Does the 1987 Constitution, particularly Section 2 of Article XI thereof, allow the institution
of a quo warranto action against an impeachable officer?

Impeachment is not an exclusive remedy by which an invalidly appointed or invalidly
elected impeachable official may be removed from office.

xxx xxx

We hold, therefore, that by its tenor, Section 2, Article XI of the Constitution allows
the institution of a quo warranto action against an impeachable officer. After all, a quo
warranto petition is predicated on grounds distinct from those of impeachment. The former
questions the validity of a public officer's appointment while the latter indicts him for the so-
called impeachable offenses without questioning his title to the office he holds.

xxx xxx

For lack of a Constitutional qualification, respondent is ineligible to hold the position
of Chief Justice and is merely holding a colorable right or title thereto. As such, respondent
has never attained the status of an impeachable official and her removal from the office,
other than by impeachment, is justified. The remedy, therefore, of a quo warranto at the
instance of the State is proper to oust respondent from the appointive position of Chief
Justice.

“No Garage, No Car” Policy

29. What is the “valid object and valid means” analysis or the “means-end” test?

First. The interests of the public generally, as distinguished from those of a particular
class, require the exercise of police power. (lawful subject)

Second. The means employed are reasonably necessary for the accomplishment of
the purpose and not unduly oppressive upon individuals.

Mosqueda, et al., v. Pilipino Banana Growers and Exporters Association, G.R. No.
189185, August 16, 2016

22
 The main issue is whether or not Ordinance No. 0309-07 is unconstitutional on
due process and equal protection grounds for being unreasonable and oppressive, and an
invalid exercise of police power: (a) in imposing a ban on aerial spraying as an agricultural
practice in Davao City under Section 5; (b) in decreeing a 3-month transition-period to
shift to other modes of pesticide application under Section 5; and (c) in requiring the
maintenance of the 30-meter buffer zone under Section 6 thereof in all agricultural lands
in Davao City.

Xxx xxx

The respondents challenge Section 5 of Ordinance No. 0309-07 for being
unreasonable and oppressive in that it sets the effectivity of the ban at three months after
publication of the ordinance. They allege that three months will be inadequate time to
shift from aerial to truck-mounted boom spraying, and effectively deprives them of
efficient means to combat the Black Sigatoka disease.

The petitioners counter that the period is justified considering the urgency of
protecting the health of the residents.

We find for the respondents.

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. To recall, even the RTC
recognized the impracticality of attaining a full-shift to other modes of spraying within
three months in view of the costly financial and civil works required for the conversion.

Xxx 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 conversion 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.

Due process

30. Francis Jardeleza v. Chief Justice Sereno, et. als, August 19, 2014

To write finis to this controversy and in view of the realistic and practical fruition of
the Court’s findings, the Court now declares its position on whether or not Jardeleza may be

23
 included in the shortlist, just in time when the period to appoint a member of the Court is
about to end.

The conclusion of the Court is hinged on the following pivotal points:

1. There was a misapplication of the “unanimity rule” under Section 2, Rule 10
of JBC-009 as to Jardeleza’s legal strategy in handling a case for the government.

2. While Jardeleza’s alleged extra-marital affair and acts of insider trading fall
within the contemplation of a “question on integrity” and would have warranted the
application of the “unanimity rule,” he was not afforded due process in its application.

3. The JBC, as the sole body empowered to evaluate applications for
judicial posts, exercises full discretion on its power to recommend nominees to the
President. The sui generis character of JBC proceedings, however, is not a blanket
authority to disregard the due process under JBC-010.

4. Jardeleza was deprived of his right to due process when, contrary to the JBC
rules, he was neither formally informed of the questions on his integrity nor was
provided a reasonable opportunity to prepare his defense.

With the foregoing, the Court is compelled to rule that Jardeleza should have
been included in the shortlist submitted to the President for the vacated position of
Associate Justice Abad. This consequence arose not from the unconstitutionality of
Section 2, Rule 10 of JBC-009, per se, but from the violation by the JBC of its own rules
of procedure and the basic tenets of due process. By no means does the Court intend to
strike down the “unanimity rule” as it reflects the JBC’s policy and, therefore, wisdom in
its selection of nominees. Even so, the Court refuses to turn a blind eye on the palpable
defects in its implementation and the ensuing treatment that Jardeleza received before
the Council. True, Jardeleza has no vested right to a nomination, but this does not
prescind from the fact that the JBC failed to observe the minimum requirements of due
process.

31. Mayor Emmanuel L. Maliksi v. Comelec and Homer T. Saquilayan, G.R. No. 203302, April
13, 2013 (Resolution of Extremely Urgent Motion for Reconsideration)

Maliksi insists:

(a) that he had the right to be notified of every incident of the proceedings and
to be present at every stage thereof;

(b) that he was deprived of such rights when he was not informed of the
decryption, printing, and examination of the ballot images by the First Division;

24
 (c) that the March 28, 2012 and April 17, 2012 orders of the First Division did not
sufficiently give him notice inasmuch as the orders did not state the date, time, and venue
of the decryption and printing of the ballot images; and

(d) that he was thus completely deprived of the opportunity to participate in the
decryption proceedings.

HELD: The Court grants Maliksi’s Extremely Urgent Motion for Reconsideration,
and reverses the decision promulgated on March 12, 2013 on the ground that the First
Division of the COMELEC denied to him the right to due process by failing to give due
notice on the decryption and printing of the ballot images. Consequently, the Court
annuls the recount proceedings conducted by the First Division with the use of the
printouts of the ballot images.

Xxx xxx

Moreover, due process of law does not only require notice of the decryption,
printing, and recount proceedings to the parties, but also demands an opportunity to be
present at such proceedings or to be represented therein. Maliksi correctly contends that
the orders of the First Division simply required Saquilayan to post and augment his cash
deposit. The orders did not state the time, date, and venue of the decryption and recount
proceedings. Clearly, the First Division had no intention of giving the parties the
opportunity to witness its proceedings.

Due process and plea bargaining

Yet a defendant has no constitutional right to plea bargain. No basic rights are infringed
by trying him rather than accepting a plea of guilty; the prosecutor need not do so if he prefers

to go to trial. Under the present Rules, the acceptance of an offer to plead guilty is not a

demandable right but depends on the consent of the offended party and the prosecutor, which
is a condition precedent to a valid plea of guilty to a lesser offense that is necessarily included in
the offense charged. The reason for this is that the prosecutor has full control of the prosecution
of criminal actions; his duty is to always prosecute the proper offense, not any lesser or graver
one, based on what the evidence on hand can sustain. (Estipona v. Hon. Lobrigo, G.R. No.
226679, August 15, 2017) [citations omitted]

Equal protection; standards of judicial review

32. Enumerate and explain the three (3) standards of judicial review to determine the
reasonableness of classifications.

Philippine jurisprudence has developed three (3) tests of judicial scrutiny to
determine the reasonableness of classifications.
The strict scrutiny test applies when a
classification either (i) interferes with the exercise of fundamental rights, including the basic
25
 liberties guaranteed under the Constitution, or (ii) burdens suspect classes. The intermediate
scrutiny test applies when a classification does not involve suspect classes or fundamental
rights, but requires heightened scrutiny, such as in classifications based on gender and
legitimacy. Lastly, the rational basis test applies to all other subjects not covered by the first
two tests.

Xxx xxx

Under the strict scrutiny test, a legislative classification that interferes with the
exercise of a fundamental right or operates to the disadvantage of a suspect class is presumed
unconstitutional. Thus, the government has the burden of proving that the classification (i) is
necessary to achieve a compelling State interest, and (ii) is the least restrictive means to
protect such interest or the means chosen is narrowly tailored to accomplish the interest.

a. Compelling state interest

Jurisprudence holds that compelling State interests include constitutionally

declared policies. This Court has ruled that children's welfare and the State's mandate to
protect and care for them as parens patriae constitute compelling interests to justify
regulations by the State. It is akin to the paramount interest of the state for which some
individual liberties must give way.

Xxx xxx

b. Least restrictive means/narrowly drawn

The second requirement of the strict scrutiny test stems from the fundamental
premise that citizens should not be hampered from pursuing legitimate activities in the
exercise of their constitutional rights. While rights may be restricted, the restrictions
must be minimal or only to the extent necessary to achieve the purpose or to address
the State's compelling interest. When it is possible for governmental regulations to be
more narrowly drawn to avoid conflicts with constitutional rights, then they must be so
narrowly drawn. (Samahan ng mga Progresibong Kabataan (SPARK) v. Quezon City, et
al., G.R. No. 225442, August 8, 2017) [citations omitted]

Freedom of expression

GMA Networks v. Comelec, G.R. No. 205357, September 2, 2014

Section 9 (a) of COMELEC Resolution No.
9615 on airtime limits also goes against the
constitutional guaranty of freedom of
expression, of speech and of the press

26
 The guaranty of freedom to speak is useless without the ability to communicate
and disseminate what is said. And where there is a need to reach a large audience, the
need to access the means and media for such dissemination becomes critical. This is
where the press and broadcast media come along. At the same time, the right to speak
and to reach out would not be meaningful if it is just a token ability to be heard by a few.
It must be coupled with substantially reasonable means by which the communicator and
the audience could effectively interact. Section 9 (a) of COMELEC Resolution No. 9615,
with its adoption of the “aggregate-based” airtime limits unreasonably restricts the
guaranteed freedom of speech and of the press.

Political speech is one of the most important expressions protected by the
Fundamental Law. “[F]reedom of speech, of expression, and of the press are at the core

of civil liberties and have to be protected at all costs for the sake of democracy.”
Accordingly, the same must remain unfettered unless otherwise justified by a compelling
state interest.

Xxx xxx

[…]The assailed rule on “aggregate-based” airtime limits is unreasonable and
arbitrary as it unduly restricts and constrains the ability of candidates and political
parties to reach out and communicate with the people. Here, the adverted reason for
imposing the “aggregate-based” airtime limits – leveling the playing field – does not
constitute a compelling state interest which would justify such a substantial restriction on
the freedom of candidates and political parties to communicate their ideas, philosophies,
platforms and programs of government. And, this is specially so in the absence of a clear-
cut basis for the imposition of such a prohibitive measure. In this particular instance, what
the COMELEC has done is analogous to letting a bird fly after one has clipped its wings.

Freedom of religion

Re: Letter of Tony Valenciano, Holding of Religious Rituals at the Hall of Justice Building
in Quezon City, A.M. No. 10-4-19-SC, March 7, 2017

Issue: WHETHER THE HOLDING OF MASSES AT THE BASEMENT OF THE QUEZON CITY
HALL OF JUSTICE VIOLATES THE CONSTITUTIONAL PRINCIPLE OF SEPARATION OF
CHURCH AND STATE AS WELL AS THE CONSTITUTIONAL PROHIBITION AGAINST
APPROPRIATION OF PUBLIC MONEY OR PROPERTY FOR THE BENEFIT OF ANY SECT,
CHURCH, DENOMINATION, SECTARIAN INSTITUTION, OR SYSTEM OF RELIGION.

Held: The Court agrees with the findings and recommendation of the OCA and denies
the prayer of Valenciano that the holding of religious rituals of any of the world's religions
in the QC Hall of Justice or any halls of justice all over the country be prohibited.

27
 The Holding of Religious Rituals in the Halls
of Justice does not Amount to a Union of
Church and State

Xxx xxx

[T]he State still recognizes the inherent right of the people to have some form of
belief system, whether such may be belief in a Supreme Being, a certain way of life, or
even an outright rejection of religion. Our very own Constitution recognizes the
heterogeneity and religiosity of our people[.]

xxx xxx

Free Exercise Clause

Freedom of religion was accorded preferred status by the framers of our
fundamental law. And this Court has consistently affirmed this preferred status, well
aware that it is "designed to protect the broadest possible liberty of conscience, to allow
each man to believe as his conscience directs, to profess his beliefs, and to live as he
believes he ought to live, consistent with the liberty of others and with the common
good."

"The right to religious profession and worship has a two-fold aspect - freedom to
believe and freedom to act on one's beliefs. The first is absolute as long as the belief is
confined within the realm of thought. The second is subject to regulation where the belief
is translated into external acts that affect the public welfare."

Xxx xxx

Allowing religion to flourish is not contrary to the principle of separation of
Church and State. In fact, these two principles are in perfect harmony with each other.

Xxx xxx

No Compelling State Interest

Religious freedom, however, is not absolute. It cannot have its way if there is a
compelling state interest. To successfully invoke compelling state interest, it must be
demonstrated that the masses in the QC Hall of Justice unduly disrupt the delivery of
public services or affect the judges and employees in the performance of their official
functions.

Xxx xxx

28
 As reported by the Executive Judges of Quezon City, the masses were being
conducted only during noon breaks and were not disruptive of public services. The court
proceedings were not being distracted or interrupted and that the performance of the
judiciary employees were not being adversely affected. Moreover, no Civil Service rules
were being violated. As there has been no detrimental effect on the public service or
prejudice to the State, there is simply no state interest compelling enough to prohibit the
exercise of religious freedom in the halls of justice.

Xxx xxx

Accommodation, Not Establishment of Religion

In order to give life to the constitutional right of freedom of religion, the State
adopts a policy of accommodation. Accommodation is a recognition of the reality that
some governmental measures may not be imposed on a certain portion of the population
for the reason that these measures are contrary to their religious beliefs. As long as it can
be shown that the exercise of the right does not impair the public welfare, the attempt of
the State to regulate or prohibit such right would be an unconstitutional encroachment.

Xxx xxx

Non-Establishment Clause

On the opposite side of the spectrum is the constitutional mandate that "no law

shall be made respecting an establishment of religion," otherwise known as the non-
establishment clause. Indeed, there is a thin line between accommodation and
establishment, which makes it even more imperative to understand each of these
concepts by placing them in the Filipino society's perspective.

Xxx xxx

Establishment entails a positive action on the part of the State. Accommodation,
on the other hand, is passive. In the former, the State becomes involved through the
use of government resources with the primary intention of setting up a state religion.
In the latter, the State, without being entangled, merely gives consideration to its
citizens who want to freely exercise their religion.

Xxx xxx

Guided by the foregoing, it is our considered view that the holding of Catholic
masses at the basement of the QC Hall of Justice is not a case of establishment, but merely
accommodation. First, there is no law, ordinance or circular issued by any duly
constitutive authorities expressly mandating that judiciary employees attend the Catholic
masses at the basement. Second, when judiciary employees attend the masses to profess
29
 their faith, it is at their own initiative as they are there on their own free will and volition,
without any coercion from the judges or administrative officers. Third, no government
funds are being spent because the lightings and airconditioning continue to be
operational even if there are no religious rituals there. Fourth, the basement has neither
been converted into a Roman Catholic chapel nor has it been permanently appropriated
for the exclusive use of its faithful. Fifth, the allowance of the masses has not prejudiced
other religions.

Xxx xxx

In no case shall a particular part of a public building be a permanent place for
worship for the benefit of any and all religious groups. There shall also be no permanent
display of religious icons in all halls of justice in the country. In case of religious rituals,
religious icons and images may be displayed but their presentation is limited only during
the celebration of such activities so as not to offend the sensibilities of members of other
religious denominations or the non-religious public. After any religious affair, the icons
and images shall be hidden or concealed from public view.

Bill of Rights; Four (4) sections governed by the Exclusionary Rule in evidence

Sections 2, the right against unreasonable searches and seizures;
section 3, the right to privacy of communication and correspondence;
section 12, custodial investigation rights, and
section 17, the right against self-incrimination.

It is in these provisions that the doctrine of fruit of the poisonous tree is applicable.

Right of the accused; Right to Be Informed of the Nature and the Cause of Accusation

First, a conviction for falsification of a private document under paragraph 2 of
Article 172 violates the right of Alid to be informed of the nature and cause of the
accusation against him given that his Information charged him only with falsification of
documents committed by a public officer under 171. Second, for falsifying a commercial
document, the penal provision allegedly violated by Alid was paragraph 1, and not
paragraph 2, of Article 172.

Xxx xxx

At the outset, we note that the appeal of Alid is grounded on two points: (1) that
he was not the one who altered the plane ticket; and (2) that he had no intent to cause
damage. He has not raised the defense that his right to be informed of the nature and
cause of the accusation against him has been violated. However, an appeal in a criminal
case opens the whole matter for the review of any question, including those questions

not raised by the parties. In this case, a review is necessary because the conviction was
30
 made in violation of the accused's constitutional rights.

One of the fundamental rights of an accused person is the right to be "informed
of the nature and cause of the accusation against him." This means that the accused may

not be convicted of an offense unless it is clearly charged in the Information. Even if the
prosecution successfully proves the elements of a crime, the accused may not be
convicted thereof, unless that crime is alleged or necessarily included in the Information
filed against the latter.

Xxx xxx

Here, it cannot be overlooked that there is a variance between the felony as
charged in the Information and as found in the judgment of conviction. Applying the
rules, the conviction of Alid for falsification of a private document under paragraph 2,
Article 172 is valid only if the elements of that felony constituted the elements o f his
indictment for falsification by a public officer under Article 171.

Xxx xxx

Since Alid was not specifically informed of the complete nature and cause of the
accusation against him, he cannot be convicted of falsification of a private document
under paragraph 2 of Article 172. To convict him therefor, as the Sandiganbayan did,
violates the very proscription found in the Constitution and our Rules of Criminal
Procedure. On this ground alone, we find that the court a quo erred in its decision.
(Malabanan v. Sandiganbayan, and companion cases, August 2, 2017)

Same; Bail

“All persons, except those charged with offenses punishable by reclusion perpetua
when evidence of guilt is strong, shall, before conviction, be bailable by sufficient
sureties, or be released on recognizance as may be provided by law. The right to bail shall
not be impaired even when the privilege of the writ of habeas corpus is suspended.
Excessive bail shall not be required.” [Sec. 13, Article III]

Juan Ponce Enrile Vs. Sandiganbayan (Third Division) and the People of the Philippines,
G.R. NO. 213847, AUG. 18, 2015

We first note that Enrile has averred in his Motion to Fix Bail the presence of two
mitigating circumstances that should be appreciated in his favor, namely: that he was
already over 70 years at the time of the alleged commission of the offense, and that he
voluntarily surrendered.

Xxx xxx

31
 In our view, his social and political standing and his having immediately
surrendered to the authorities upon his being 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, but which the Sandiganbayan did not recognize.
Xxx xxx

LEONEN, J. DISSENTING:

The grant of provisional liberty to petitioner without any determination of
whether the evidence of guilt is strong violates the clear and unambiguous text of the
Constitution. xxx xxx

But, as members of this court, our duty is to enforce the exact textual formulation
of the fundamental document written and ratified by the sovereign. This fealty to the text
of the Constitution will provide us with a stable anchor despite the potential political
controversies that swirl over the legal questions that we need to decide. It is also this
fealty to the text of the Constitution that gives this court the legitimacy as the final bastion
and the ultimate sentinel of the Rule of Law.

Xxx xxx

10 Factors to consider in granting bail (Villasenor vs. Abano, 21 SCRA 312). [See Section
9, Rule 114 of the December 1, 2000 Rules on Criminal Procedure]

1. financial ability of the accused to give bail;
2. nature and circumstances of the offense;
3. penalty of the offense charged;
4. character and reputation of the accused;
5. age and health of the accused;
6. the weight of the evidence against the accused;
7. probability of the accused appearing in trial;
8. forfeiture of other bonds;
9. the fact that the accused was a fugitive from justice when arrested; and
10. the pendency of other cases in which the accused is under bond.
32

These guidelines should be observed to prevent violation of the prohibition
against excessive bail. [Cruz, 322] “[B]ail is not intended as a punishment nor as in
satisfaction of civil liability which should necessarily await the judgment of the appellate
court.” [Yap v. Court of Appeals, 358 SCRA 564]

Double jeopardy; Requisites

Javier v. Gonzales, G.R. No. 193150, January 23, 2017

There are two divergent RTC Decisions: one for conviction, and another for
acquittal. Our resolution of this Petition for Review hinges on the validity of the second
RTC Decision.

After review of the case and the records, We rule that the Court of Appeals, in
affirming Judge Soluren's Decision of acquittal, committed reversible error, which can be
remedied by granting this Petition for Review on Certiorari.

Double jeopardy is not triggered when the order of acquittal is void.

Grave abuse of discretion amounts to lack of jurisdiction, and lack of jurisdiction
prevents double jeopardy from attaching.

In People v. Hernandez, this Court explained that "an acquittal rendered in grave
abuse of discretion amounting to lack or excess of jurisdiction does not really 'acquit' and
therefore does not terminate the case as there can be no double jeopardy based on a
void indictment." (Javier v. Gonzales, G.R. No. 193150, January 23, 2017)

LOCAL GOVERNMENTS

Mandanas v. Exec. Sec. Ochoa, G.R. No. 199802, July 3, 2018

Section 284 of the LGC deviates from the plain language of Section 6 of Article X of the
1987 Constitution

Section 6, Article X the (sic) 1987 Constitution textually commands the allocation to the
LGUs of a just share in the national taxes, viz.:

Section 6. Local government units shall have a just share, as determined
by law, in the national taxes which shall be automatically released to them.

Section 6, when parsed, embodies three mandates, namely: (1) the LGUs shall
have a just share in the national taxes; (2) the just share shall be determined by law; and
(3) the just share shall be automatically released to the LGUs.
33

Congress has sought to carry out the second mandate of Section 6 by enacting
Section 284, Title III (Shares of Local Government Units in the Proceeds of National Taxes),
of the LGC, which is again quoted for ready reference:

Section 284. Allotment of Internal Revenue Taxes. – Local government
units shall have a share in the national internal revenue taxes based on the
collection of the third fiscal year preceding the current fiscal year as follows…

There is no issue as to what constitutes the LGUs’ just share expressed in
percentages of the national taxes (i.e., 30%, 35% and 40% stipulated in subparagraphs (a),
(b), and (c) of Section 284). Yet, Section 6, supra, mentions national taxes as the source
of the just share of the LGUs while Section 284 ordains that the share of the LGUs be taken
from national internal revenue taxes instead.

Has not Congress thereby infringed the constitutional provision?

Garcia contends that Congress has exceeded its constitutional boundary by
limiting to the NIRTs the base from which to compute the just share of the LGUs.

We agree with Garcia’s contention.

Although the power of Congress to make laws is plenary in nature, congressional
lawmaking remains subject to the limitations stated in the 1987 Constitution. The phrase
national internal revenue taxes engrafted in Section 284 is undoubtedly more restrictive
than the term national taxes written in Section 6. As such, Congress has actually departed
from the letter of the 1987 Constitution stating that national taxes should be the base
from which the just share of the LGU comes. Such departure is impermissible. Verba legis
non est recedendum (from the words of a statute there should be no departure). Equally
impermissible is that Congress has also thereby curtailed the guarantee of fiscal
autonomy in favor of the LGUs under the 1987 Constitution.

xxx xxx

In recapitulation, the national taxes to be included in the base for computing the
just share the LGUs shall henceforth be, but shall not be limited to, the following:

1. The NIRTs enumerated in Section 21 of the NIRC, as amended, to be inclusive of the
VATs, excise taxes, and DSTs collected by the BIR and the BOC, and their deputized
agents;

2. Tariff and customs duties collected by the BOC;

34
 3. 50% of the VATs collected in the ARMM, and 30% of all other national taxes collected
in the ARMM; the remaining 50% of the VATs and 70% of the collection of the other
national taxes in the ARMM shall be the exclusive share of the ARMM pursuant to
Section 9 and Section 15 of R.A. No. 9054;

4. 60% of the national taxes collected from the exploitation and development of the
national wealth; the remaining 40% will exclusively accrue to the host LGUs pursuant
to Section 290 of the LGC;

5. 85% of the excise taxes collected from locally manufactured Virginia and other
tobacco products; the remaining 15% shall accrue to the special purpose funds
pursuant created in R.A. No. 7171 and R.A. No. 7227;

6. The entire 50% of the national taxes collected under Section 106, Section 108 and
Section 116 of the NIRC in excess of the increase in collections for the immediately
preceding year; and

7. 5% of the franchise taxes in favor of the national government paid by franchise
holders in accordance with Section 6 of R.A. No. 6631 and Section 8 of R.A. No. 6632.

Ordinances should always conform with the law

Thus springs the question of whether local governments could validly impose on
minors these sanctions - i.e., (a) community service; (b) reprimand and admonition; (c)
fine; and (d) imprisonment. Pertinently, Sections 57 and 57-A of RA 9344, as amended,
prohibit the imposition of penalties on minors for status offenses such as curfew
violations[.]

Xxx xxx

As worded, the prohibition in Section 57-A is clear, categorical, and unambiguous.
It states that "[n]o penalty shall be imposed on children for x x x violations [of] juvenile
status offenses]." Thus, for imposing the sanctions of reprimand, fine, and/or
imprisonment on minors for curfew violations, portions of Section 4 of the Manila
Ordinance directly and irreconcilably conflict with the clear language of Section 57-A of
RA 9344, as amended, and hence, invalid. On the other hand, the impositions of
community service programs and admonition on the minors are allowed as they do not
constitute penalties.

Xxx xxx

For another, the Court has determined that the Manila Ordinance's penal
provisions imposing reprimand and fines/imprisonment on minors conflict with Section
57-A of RA 9344, as amended. Hence, following the rule that ordinances should always
35
 conform with the law, these provisions must be struck down as invalid. (Samahan ng mga
Progresibong Kabataan (SPARK) v. Quezon City, et al., G.R. No. 225442, August 8, 2017)

Same; two-pronged test for the validity of ordinance

To be considered as a valid police power measure, 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). (Mosqueda, et al., v. Pilipino Banana Growers and Exporters Association, G.R.
No. 189185, August 16, 2016)

Extent of local initiative and the duty of Comelec in relation thereto

Marmeto v. Comelec, G.R. No. 213953, September 26, 2017

The COMELEC cannot defeat the exercise of
the people's original legislative power for
lack of budgetary allocation for its conduct

xxx xxx

Although Goh involved the conduct of recall elections, the billion appropriation
under the FY 2014 GAA was for the "conduct and supervision of elections, referenda,
recall votes and plebiscites. The term "election" is comprehensive enough to include
other kinds of electoral exercises, including initiative elections. A s earlier mentioned, the
C O M E L E C ' s constitutional mandate is to enforce and administer all laws relative to
the conduct of an election, plebiscite, initiative, referendum, and recall. The Constitution
further states that the "[f]unds certified by the [COMELEC] as necessary to defray the
expenses for holding regular and special elections, plebiscites, initiatives, referenda, and
recalls, shall be provided in the regular or special appropriations and, once approved shall
be released automatically. Thus, the budgetary allocation for the "regulation of elections"
identified as the COMELEC's MFO 1 should necessarily also cover expenses for the
conduct of initiative elections.

Xxx xxx

Thus, as in Goh, the COMELEC was provided with budgetary allocation for the
conduct of initiative elections. The COMELEC, therefore, committed grave abuse of
discretion in dismissing Marmeto's second initiative petition on the ground that there
were no funds allocated for the purpose.

36
 Xxx xxx

The COMELEC has the power to review
whether the propositions in an initiative
petition are within the power of the
concerned Sanggunian to enact

Xxx xxx

Significantly, the power of the courts to nullify propositions for being ultra
vires
extends only to those already approved, i.e. those which have been approved by a
majority of the votes cast in the initiative election called for the
purpose. In other words,
the courts can review the terms only of an approved ordinance. It will be premature for
the courts to review the propositions contained
in an initiative petition that has yet to be
voted for by the people because at that point, there is no actual controversy that the
courts may adjudicate. This begs the question of which tribunal can review the
sufficiency of an initiative petition?

Inasmuch as the COMELEC also has quasi-judicial and administrative functions, it
is the COMELEC which has the power to determine whether the propositions in an
initiative petition are within the powers of a concerned sanggunian to enact.

Xxx xxx

The COMELEC's power to review the substance of the propositions is also implied
in Section 12 of RA No. 6735, which gives this Court appellate power to review the
COMELEC's "findings of the sufficiency or insufficiency of the petition for initiative or
referendum x x x."

Xxx xxx

Marmeto 's propositions in his initiative
petition are beyond the powers of the
Sanggunian Panlungsod ng Muntinlupa to
enact

Xxx xxx

Manneto's initiative petitions propose the following:

(1) The creation of a sectoral council composed of 12 members from various
sectors who will serve as the people's representatives for the implementation
and management of livelihood programs and projects;
(2) The sectoral council will also stand as the people's representatives that will
37
 directly propose, enact, approve, or reject ordinances through initiative or
referendum;
(3) An appropriation of P200 million to be allocated for livelihood projects of the
people and other purposes. The net income from the projects will then be
used for the delivery ofbasic services and facility for Muntinlupa residents;
(4) The MPP will create the implementing guidelines and procedure for the
utilization of the appropriated funds, and conduct programs and project
feasibility studies. It shall comply with the prescribed accounting and auditing
rules of, and submit monthly accomplishmentreport to the local government
unit (LGU). It shall also observe transparency and accountability in fund
management.

Xxx xxx

The creation of a separate local legislative body is ultra vires


Under the LGC, local legislative power within the city is to be exercised by the
sangguniang panlungsod, which shall be comprised of elected district and sectoral
representatives. The sectoral representatives, moreover, be limited shall be limited to
three members, coming from enumerated/identified sectors.

Significantly, nothing in the LGC allows the creation of another local legislative
body that will enact, approve, or reject local laws either through the regular legislative
process or through initiative or referendum. Even Marmeto's claim that the sectoral
council will not legislate but will merely "facilitate" the people's exercise o f the power o
f initiative and referendum is rendered unnecessary by the task the COMELEC must
assume under the LGC. Section 122(c) of the LGC provides that the COMELEC (or its
designated representative) shall extend assistance in the formulation of the proposition.

Xxx xxx

ELECTION LAW

Does COMELEC have jurisdiction over the expulsion of a party-list representative from his
party-list organization when he is already a Member of the House of Representatives?

NO. The HRET is the sole judge of all contests relative to the election, returns, and
qualifications of Members of the House of Representative (Section 17, Article VI). [Lico v.
COMELEC, G.R. No. 205505, Sept. 29, 2015]

Can the COMELEC cancel or deny due course to a COC on grounds of false representations
regarding the candidate’s qualifications without a prior authoritative finding that he or she is
not qualified?

38
 The issue before the COMELEC is whether or not the COC of petitioner should be
denied due course or cancelled "on the exclusive ground" that she made in the certificate
a false material representation. The exclusivity of the ground should hedge in the
discretion of the COMELEC and restrain it from going into the issue of the qualifications
of the candidate for the position, if, as in this case, such issue is yet undecided or
undetermined by the proper authority. The COMELEC cannot itself, in the same
cancellation case, decide the qualification or lack thereof of the candidate.

xxx xxx

If a candidate cannot be disqualified without a prior finding that he or she is
suffering from a disqualification "provided by law or the Constitution," neither can the
certificate of candidacy be cancelled or denied due course on grounds of false
representations regarding his or her qualifications, without a prior authoritative finding
that he or she is not qualified, such prior authority being the necessary measure by
which the falsity of the representation can be found. The only exception that can be
conceded are self-evident facts of unquestioned or unquestionable veracity and judicial
confessions. Such are, anyway, bases equivalent to prior decisions against which the
falsity of representation can be determined. (Poe-Llamanzares v. Comelec, G.R. No.
221697, March 8, 2016)

Does COMELEC have the authority to order special elections? Kida v. Senate

The COMELEC has no authority to order special elections.

The power to fix the date of elections is essentially legislative in nature x x x

Statutorily, COMELEC has no power to call for the holding of special elections
unless pursuant to a specific statutory grant. True, Congress did grant, via Sections 5 and
6 of BP 881, COMELEC with the power to postpone elections to another date. However,
this power is limited to, and can only be exercised within, the specific terms and
circumstances provided for in the law.

A close reading of Section 5 of BP 881 reveals that it is meant to address instances
where elections have already been scheduled to take place but have to be postponed
because of (a) violence, (b) terrorism, (c) loss or destruction of election paraphernalia or
records, (d) force majeure, and (e) other analogous causes of such a nature that the
holding of a free, orderly and honest election should become impossible in any political
subdivision. Under the principle of ejusdem generis, the term “analogous causes” will be
restricted to those unforeseen or unexpected events that prevent the holding of the
scheduled elections. These “analogous causes” are further defined by the phrase “of such
nature that the holding of a free, orderly and honest election should become impossible.”

39
 Similarly, Section 6 of BP 881 applies only to those situations where elections have
already been scheduled but do not take place because of (a) force majeure, (b) violence,
(c) terrorism, (d) fraud, or (e) 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 the closing of the voting, or after the voting and during the preparation and the
transmission of the election returns or in the custody or canvass thereof, such election
results in a failure to elect. As in Section 5 of BP 881, Section 6 addresses instances where
the elections do not occur or had to be suspended because of unexpected and
unforeseen circumstances.

In the present case, the postponement of the ARMM elections is by law – i.e., by
congressional policy – and is pursuant to the constitutional mandate of synchronization
of national and local elections. By no stretch of the imagination can these reasons be given
the same character as the circumstances contemplated by Section 5 or Section 6 of BP
881, which all pertain to extralegal causes that obstruct the holding of elections. Courts,
to be sure, cannot enlarge the scope of a statute under the guise of interpretation, nor
include situations not provided nor intended by the lawmakers. Clearly, neither Section
5 nor Section 6 of BP 881 can apply to the present case and this Court has absolutely no
legal basis to compel the COMELEC to hold special elections.

PUBLIC INTERNATIONAL LAW

What is a Jus Cogens norm?

A Jus Cogens norm is a peremptory norm of general international law accepted
and recognized by the international community of States as a whole as a norm from which
no derogation is permitted and which can be modified only by a subsequent norm of
general international law of the same character. It is by its nature binding on every State.
The following are norms considered jus cogens in character: 1) Laws on genocide 2)
Principle of non-racial discrimination 3) Principle of self – determination 4) Laws
penalizing crimes against humanity 5) prohibition against slavery, slave trade 6) Laws
penalizing piracy. [Dean Hilario Justino F. Morales, Bar Review Lecture PIL notes]

What is obligation erga omnes?

Erga Omnes is an obligation of every State towards the international community as a
whole. All states have a legal interest in its compliance, and thus all States are entitled to invoke
responsibility for breach of such an obligation. By the nature of jus cogens norms they embody
erga omnes obligations. Even as all erga omnes obligations may not be in the nature of jus cogens
norms, jus cogens norms necessarily embody erga omnes obligations. Examples of erga omnes
obligations are 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. [ibid]

40
Explain the principle of rebus sic stantibus.

Rebus sic stantibus is a fundamental change of circumstances which has occurred with
regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by
the parties. It may be invoked as a ground for terminating or withdrawing from the treaty if:

1. The existence of those circumstances constituted an essential basis of the consent of
the parties to be bound by the treaty; and
2. The effect of the change is radically to transform the extent of the obligations still to
be performed under the treaty. [See Article 62(1), VCLT]

Basic Principles of International Environmental Law; Precautionary Principle

The principle of precaution originated as a social planning principle in Germany.
In the 1980s, 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, among others. The oft-cited Principle 15 of the
1992 Rio Declaration on Environment and Development (1992 Rio Agenda), first
embodied this principle, as follows:

Principle 15

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.

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.

It is notable, therefore, that the precautionary principle shall only be relevant if
there is concurrence of three elements, namely: uncertainty, threat of environmental
damage and serious or irreversible harm. In situations where the threat is relatively
certain, or that the causal link between an action and environmental damage can be
established, or the probability of occurrence can be calculated, only preventive, not
precautionary measures, may be taken. Neither will the precautionary principle apply if
41
 there is no indication of a threat of environmental harm, or if the threatened harm is
trivial or easily reversible.

Xxx xxx

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. (Mosqueda, et al., v. Pilipino Banana
Growers and Exporters Association, G.R. No. 189185, August 16, 2016)

Accession of the Philippines to the Madrid Protocol was constitutional

On March 27, 2012, President Benigno C. Aquino III ratified the Madrid Protocol
through an instrument of accession. The instrument of accession was deposited with the
Director General of the World Intellectual Property Organization (WIPO) on April 25,

2012. The Madrid Protocol entered into force in the Philippines on July 25, 2012.

Xxx xxx


According to the IPAP, the Madrid Protocol is a treaty, not an executive
agreement; hence, respondent DFA Secretary Albert Del Rosario acted with grave abuse

of discretion in determining the Madrid Protocol as an executive agreement.

Xxx xxx


The Court has highlighted the difference between treaties and executive

agreements in Commissioner of Customs v. Eastern Sea Trading, thusly:

International agreements involving political issues or changes of
national policy and those involving international arrangements of a
permanent character usually take the form of treaties. But international
agreements embodying adjustments of detail carrying out well-established
national policies and traditions and those involving arrangements of a
more or less temporary nature usually take the form of executive
agreements.

In the Philippines, the DFA, by virtue of Section 9, Executive Order No. 459, is
initially given the power to determine whether an agreement is to be treated as a treaty
or as an executive agreement. To determine the issue of whether DFA Secretary Del
42
 Rosario gravely abused his discretion in making his determination relative to the Madrid
Protocol, we review the jurisprudence on the nature of executive agreements, as well as
the subject matters to be covered by executive agreements.


The pronouncement in Commissioner of Customs v. Eastern Sea Trading is
instructive, to wit:

x x x The concurrence of said House of Congress is required by our
fundamental law in the making of "treaties" (Constitution of the
Philippines; Article VII, Section 10[7]), which are, however, distinct and
different from "executive agreements," which may be validly entered into
without such concurrence.

"Treaties are formal documents which require
ratification with the approval o f two thirds o f the Senate.
Executive agreements become binding through executive
action without the need o f a vote by the Senate or by
Congress.

xx xx

"x x x the right of the Executive to enter into binding
agreements without the necessity of subsequent
Congressional approval has been confirmed by long usage.
From the earliest days of our history we have entered into
executive agreements covering such subjects as
commercial and consular relations, most-favored-nation
rights, patent rights, trademark and copyright protection,
postal and navigation arrangements and the settlement of
claims. The validity of these has never been seriously
questioned by our courts.

xx xx

Agreements with respect to the registration of
trade- marks have been concluded by the Executive with
various countries under the Act of Congress of March 3,
1881 (21 Stat. 502), xx x

xx xx

As the foregoing pronouncement indicates, the registration of trademarks and
copyrights have been the subject of executive agreements entered into without the
concurrence of the Senate. Some executive agreements have been concluded in
43
 conformity with the policies declared in the acts of Congress with respect to the general
subject matter.

Xxx xxx

Accordingly, DFA Secretary Del Rosario’s determination and treatment of the
Madrid Protocol as an executive agreement; being in apparent contemplation of the
express state policies on intellectual property as well as within his power under Executive
Order No. 459, are upheld. We observe at this point that there are no hard and fast rules
on the propriety of entering into a treaty or an executive agreement on a given subject as
an instrument of international relations. The primary consideration in the choice of the
form of agreement is the parties' intent and desire to craft their international agreement
in the form they so wish to further their respective interests. The matter of form takes a
back seat when it comes to effectiveness and binding effect of the enforcement of a treaty
or an executive agreement; inasmuch as all the parties; regardless of the form, become

obliged to comply conformably with the time-honored principle of pacta sunt servanda.
The principle binds the parties to perform in good faith their parts in the agreements.
(Intellectual Property Ass’n of the Phils. V. Hon. Paquito Ochoa, G.R. No. 204605, July 19,
2016)

Salient Points of Saguisag v. Ochoa on the constitutionality of the EDCA

The role of the President as the executor of the law includes the duty to defend
the State, for which purpose he may use that power in the conduct of foreign relations

Xxx xxx

The plain meaning of the Constitution prohibits the entry of foreign military bases,
troops or facilities, except by way of a treaty concurred in by the Senate - a clear limitation
on the President's dual role as defender of the State and as sole authority in foreign
relations.

Xxx xxx

The President, however, may enter into an executive agreement on foreign
military bases, troops, or facilities, if (a) it is not the instrument that allows the presence
of foreign military bases, troops, or facilities; or (b) it merely aims to implement an
existing law or treaty.

Xxx xxx

The President may generally enter into executive agreements subject to
limitations defined by the Constitution and may be in furtherance of a treaty already
concurred in by the Senate.
44

Xxx xxx

The President had the choice to enter into EDCA by way of an executive agreement
or a treaty.

Xxx xxx

Executive agreements may cover the matter of foreign military forces if it merely
involves detail adjustments.

Xxx xxx

Culling from the foregoing discussions, we reiterate the following
pronouncements to guide us in resolving the present controversy:

1. Section 25, Article XVIII ofthe Constitution, contains stringent requirements that must
be fulfilled by the international agreement allowing the presence of foreign military
bases, troops, or facilities in the Philippines: (a) the agreement must be in the form of a
treaty, and (b) it must be duly concurred in by the Senate.

2. I f the agreement is not covered by the above situation, then the President may choose
the form of the agreement (i.e., either an executive agreement or a treaty), provided that
the agreement dealing with foreign military bases, troops, or facilities is not the principal
agreement that first allows their entry or presence in the Philippines.

3. The executive agreement must not go beyond the parameters, limitations, and
standards set by the law and/or treaty that the former purports to implement; and must
not unduly expand the international obligation expressly mentioned or necessarily
implied in the law or treaty.

4. The executive agreement must be consistent with the Constitution, as well as with
existing laws and treaties.

Xxx xxx

EDCA is consistent with the content, purpose, and framework of the MDT and the
VFA.

45