Professional Documents
Culture Documents
2019 Political Law Sandoval
2019 Political Law Sandoval
2019 Political Law Sandoval
POLITICAL LAW
THE CONSTITUTION
A provision which lays down a general principle, such as those found in Article II
of the 1987 Constitution, is usually not self-executing. But a provision which is complete
in itself and becomes operative without the aid of supplementary or enabling legislation,
or that which supplies sufficient rule by means of which the right it grants may be
enjoyed or protected, is self-executing. Thus a constitutional provision is self-executing
if the nature and extent of the right conferred and the liability imposed are fixed by the
Constitution itself, so that they can be determined by an examination and construction
of its terms, and there is no language indicating that the subject is referred to the
legislature for action. (Manila Prince Hotel v. GSIS, 267 SCRA 408 [1997]
[Bellosillo])
AMENDMENTS OR REVISION
(Article XVII, 1987 Constitution)
1
One: Congress may directly propose amendments or revision by three-fourths
(3/4) vote of all its members. In such a case, Congress will not be acting as a legislative
body but rather, as a constituent assembly – a non-legislative function of Congress.
There are two (2) ways by which a constitutional convention may be convened;
First, Congress may directly call a constitutional convention, by two-thirds of all its
members; second, Congress, instead of directly calling a constitutional convention,
may submit the issue of calling such a convention to the people, by majority vote of all
its members.
People‟s initiative on the Constitution is done through a petition, but the petition
will have to be signed by at least twelve (12) percent of the total number of registered
voters provided that in each legislative district, at least three (3) percent of the
registered voters therein shall sign the petition.
The provisions of R.A. No 6735 (The Initiative and Referendum Law) dealing with
initiative on the constitution implements people‟s initiative on the Constitution under
Section 2, Article XVII, 1987 Constitution.
Ratification
The doctrine of operative fact recognizes the existence of the law or executive
act prior to the determination of its unconstitutionality as an operative fact that produced
consequences that cannot always be erased, ignored or disregarded. In short, it
nullifies the void law or executive act but sustains its effects. It provides an exception to
the general rule that a void or unconstitutional law produces no effect. But its use must
be subjected to great scrutiny and circumspection, and it cannot be invoked to validate
2
an unconstitutional law or executive act, but is resorted to only as a matter of equity and
fair play.It applies only to cases where extraordinary circumstances exist, and only
when the extraordinary circumstances have met the stringent conditions that will permit
its application. (Maria Carolina P. Araullo, et al. v. Benigno Simeon C. Aquino III, et
al. G.R. No., 209287, 728 SCRA 1, July 1, 2014, En Banc [Bersamin])
As already mentioned, the implementation of the DAP resulted into the use of
savings pooled by the Executive to finance the PAPs that were not covered in the GAA,
or that did not have proper appropriation covers, as well as to augment items pertaining
to other departments of the Government in clear violation of the Constitution. To
declare the implementation of the DAP unconstitutional without recognizing that its prior
implementation constituted an operative fact that produced consequences in the real as
well as juristic worlds of the Government and the Nation is to be impractical and unfair.
Unless the doctrine is held to apply, the Executive as the disburser and the offices
under it and elsewhere as the recipients could be required to undo everything that they
had implemented in good faith under the DAP. That scenario would be enormously
burdensome for the Government. Equity alleviates such burden.
The other side of the coin is that it has been adequately shown as to be beyond
debate that the implementation of the DAP yielded undeniably positive results that
enhanced the economic welfare of the country. To count the positive results may be
impossible, but the visible ones, like public infrastructure, could easily include roads,
bridges, homes for the homeless, hospitals, classrooms and the like. Not to apply the
doctrine of operative fact to the DAP could literally cause the physical undoing of such
worthy results by destruction, and would result in most undesirable wastefulness.(Maria
Carolina P. Araullo, et al. v. Benigno Simeon C. Aquino III, et al. G.R. No., 209287,
728 SCRA 1, July 1, 2014, En Banc [Bersamin])
The term executive act is broad enough to include any and all acts of the
Executive, including those that are quasi-legislative and quasi-judicial in nature.
It is clear from the foregoing that the adoption and the implementation of the DAP
and its related issuances were executive acts. The DAP itself, as a policy, transcended
3
a merely administrative practice especially after the Executive, through the DBM,
implemented it by issuing various memoranda and circulars. (Maria Carolina P.
Araullo, et al. v. Benigno Simeon C. Aquino III, et al. G.R. No., 209287, 728 SCRA
1, July 1, 2014, En Banc [Bersamin])
The Presumption of Good Faith Stands in the DAP Case despite the
ObiterPronouncement
The quoted text of paragraphs 3 and 4 shows that the Court has neither thrown
out the presumption of good faith nor imputed bad faith to the authors, proponents and
implementers of the DAP. The contrary is true, because the Court has still presumed
their good faith by pointing out that “the doctrine of operative fact xxx cannot apply to
the authors, proponents and implementers of the DAP, unless there are concrete
findings of good faith in their favor by the proper tribunals determining their criminal,
civil, administrative and other liabilities.” X x x
It is equally important to stress that the ascertainment of good faith, or the lack of
it, and the determination of whether or not due diligence and prudence were exercised,
are questions of fact. The want of good faith is thus better determined by tribunals other
than this Court, which is not a trier of facts.
For sure, the Court cannot jettison the presumption of good faith in this or in any
other case. The presumption is a matter of law. It has had a long history. Indeed, good
faith has long been established as a legal principle even in the heydays of the Roman
Empire. X x x
Relevantly the authors, proponents and implementers of the DAP, being public
officers, further enjoy the presumption of regularity in the performance of their functions.
This presumption is necessary because they are clothed with some part of the
sovereignty of the State, and because they act in the interest of the public as required
by law. However, the presumption may be disputed.
At any rate, the Court has agreed during its deliberations to extend to the
proponents and the implementers of the DAP the benefit of the doctrine of operative
fact. This is because they had nothing to do at all with the adoption of the invalid acts
and practices. (Maria Carolina P. Araullo, et al. v. Benigno Simeon C. Aquino III, et
al., G.R. No. 209287, February 3, 2015, En Banc [Bersamin], Resolution of the
Motion for Reconsideration)
The national territory comprises the Philippine archipelago, with all the
islands and waters embraced therein, and all other territories over which the
Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and
aerial domains, including its territorial sea, the seabed, the subsoil, the insular
shelves, and other submarine areas. The waters around, between, and
connecting the islands of the archipelago, regardless of their breadth and
dimensions, form part of the internal waters of the Philippines. (Article I, 1987
Constitution)
4
The Maritime Baselines Law (R.A. No. 9522)
In 1961, Congress passed Republic Act No. 3046 (RA 3046) demarcating the
maritime baselines of the Philippines as an archipelagic State. This law followed the
framing of the Convention on the Territorial Sea and the Contiguous Zone in 1958
(UNCLOS I), codifying, among others, the sovereign right of States parties over their
“territorial sea,” the breadth of which, however, was left undetermined. Attempts to fill
this void during the second round of negotiations in Geneva in 1960 (UNCLOS II)
proved futile. Thus, domestically, RA 3046 remained unchanged for nearly five
decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA 5446])
correcting typographical errors and reserving the drawing of baselines around Sabah in
North Borneo.
UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a
multilateral treaty regulating, among others, sea-use rights over maritime zones (i,e., the
territorial waters [12 nautical miles from the baselines], contiguous zone [24 nautical
miles from the baselines], exclusive economic zone [200 nautical miles from the
baselines]), and continental shelves that UNCLOS III delimits. UNCLOS III was the
culmination of decades-long negotiations among United Nations members to codify
norms regulating the conduct of States in the world‟s oceans and submarine areas,
recognizing coastal and archipelagic States‟ graduated authority over a limited span of
waters and submarine lands along their coasts.
On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III
States parties to work-out specific basepoints along their coasts from which baselines
are drawn, either straight or contoured, to serve as geographic starting points to
measure the breadth of the maritime zones and continental shelf.
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III
States- parties to delimit with precision the extent of their maritime zones and
continental shelves. In turn, this gives notice to the rest of the international community
of the scope of the maritime space and submarine areas within which Statesparties
5
exercise treaty-based rights, namely:the exercise of sovereignty over territorial waters
(Article 2), the jurisdiction to enforce customs, fiscal, immigration and sanitation laws in
the contiguous zone (Article 33), and the right to exploit the living and non-living
resources in the exclusive economic zone (Article 56) and continental shelf (Article
77).(Professor Merlin M. Magallona, et al. v. Hon. Eduardo Ermita, et al., G.R. No.
187167, 655 SCRA 476, August 16, 2011, En Banc [Carpio])
UNCLOS III and its ancillary baselines laws play no role in the acquisition,
enlargement or diminution of territory. Under traditional international law typology,
states acquire (or conversely, lose) territory through occupation, accretion, cession and
prescription, not by executing multilateral treaties on the regulation of sea-use rights or
enacting statutes to comply with the treaty‟s terms to delimit maritime zones and
continental shelves. Territorial claims to land features are outside UNCLOS IIII, and are
instead governed by the rules on general international law. (Professor Merlin M.
Magallona, et al. v. Hon. Eduardo Ermita, et al., G.R. No. 187167, 655 SCRA 476,
August 16, 2011, En Banc [Carpio])
The configuration of the baselines drawn under RA 3046 and RA 9522 shows
that RA 9522 merely followed the basepoints mapped by RA 3046, save for at least
nine basepoints that RA 9522 skipped to optimize the location of basepoints and adjust
the length of one baseline (and thus comply with UNCLOS III‟s limitation on the
maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the
Scarborough Shoal lie outside of the baselines drawn around the Philippine
archipelago. This undeniable cartographic fact takes the wind out of petitioners‟
argument branding RA 9522 as a statutory renunciation of the Philippines‟ claim over
the KIG, assuming that baselines are relevant for this purpose.
Further, petitioners‟ argument that the KIG now lies outside Philippine territory
because the baselines that RA 9522 draws do not enclose the KIG is negated by RA
9522 itself. Section 2 of the law commits to text the Philippines‟ continued claim of
sovereignty and jurisdiction over the KIG and the Scarborough Shoal x x x
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part
of the Philippine archipelago, adverse legal effects would have ensued. The Philippines
would have committed a breach of two provisions of UNCLOS III. X x x
Although the Philippines has consistently claimed sovereignty over the KIG and
the Scarborough Shoal for several decades, these outlying areas are located at an
appreciable distance from the nearest shoreline of the Philippine archipelago, such that
6
any straight baseline loped around them from the nearest basepoint will inevitably
“depart to an appreciable extent from the general configuration of our archipelago.”
Xxx
[T]he amendment of the baselines law was necessary to enable the Philippines
to draw the outer limits of its maritime zones including the extended continental shelf
provided by Article 47 of [UNCLOS III].
Hence, far from surrendering the Philippines‟ claim over the KIG and the
Scarborough Shoal, Congress‟ decision to classify the KIG and the Scarborough Shoal
as “‟Regime[s] of Islands‟ under the Republic of the Philippines consistent with Article
121” of UNCLOS III manifests the Philippine State‟s responsible observance of its pacta
sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III, any
“naturally formed area of land, surrounded by water, which is above water at high tide,”
such as portions of the KIG, qualifies under the category of “regime of islands,” whose
islands generate their own applicable maritime zones.(Professor Merlin M. Magallona,
et al. v. Hon. Eduardo Ermita, et al., G.R. No. 187167, 655 SCRA 476, August 16,
2011, En Banc [Carpio])
The State may not be sued without its consent. (Section 3, Article XVI,
1987 Constitution)
The basic postulate enshrined in the Constitution that “[t]he State may not be
sued without its consent,” reflects nothing less than a recognition of the sovereign
character of the State and an express affirmation of the unwritten rule effectively
insulating it from the jurisdiction of courts. It is based on the very essence of
sovereignty. As has been aptly observed by Justice Holmes, a sovereign is exempt
from suit, not because of any formal conception or obsolete theory, but on the logical
and practical ground that there can be no legal right as against the authority that makes
the law on which the right depends. True, the doctrine, not too infrequently, is derisively
called “the royal prerogative of dishonesty” because it grants the state the prerogative to
defeat any legitimate claim against it by simply invoking its non-suability.We have had
occasion to explain in its defense, however, that a continued adherence to the doctrine
of non-suability cannot be deplored, for the loss of governmental efficiency and the
obstacle to the performance of its multifarious functions would be far greater in severity
than the inconvenience that may be caused private parties, if such fundamental
principle is to be abandoned and the availability of judicial remedy is not to be
accordingly restricted. (Department of Agriculture v. NLRC, 227 SCRA 693, Nov. 11,
1993 [Vitug])
Is the rule absolute, i.e., that the State may not be sued at all? How may consent
of the State to be sued given?
7
The rule, in any case, is not really absolute for it does not say that the state may
not be sued under any circumstances. On the contrary x x x the doctrine only conveys,
“the state may not be sued without its consent;” its clear import then is that the State
may at times be sued. The State's consent may be given either expressly or impliedly.
Express consent may be made through a general law (i.e., Commonwealth Act No. 327,
as amended by Presidential Decree No. 1445 [Sections 49-50], which requires that all
money claims against the government must first be filed with the Commission on Audit
which must act upon it within sixty days. Rejection of the claim will authorize the
claimant to elevate the matter to the Supreme Court on certiorari and, in effect, sue the
State thereby) or a special law. In this jurisdiction, the general law waiving the immunity
of the state from suit is found in Act No. 3083, where the Philippine government
“consents and submits to be sued upon any money claim involving liability arising from
contract, express or implied, which could serve as a basis of civil action between the
private parties.” Implied consent, on the other hand, is conceded when the State itself
commences litigation, thus opening itself to a counterclaimor when it enters into a
contract. In this situation, the government is deemed to have descended to the level of
the other contracting party and to have divested itself of its sovereign immunity.
(Department of Agriculture v. NLRC, 227 SCRA 693, Nov. 11, 1993 [Vitug])
The rule that when the State enters into a contract with a private individual or
entity, it is deemed to have descended to the level of that private individual or
entity and, therefore, is deemed to have tacitly given its consent to be sued, is
that without any qualification? What is the Restrictive Doctrine of State Immunity
from Suit?
This rule is notwithout qualification. Not all contracts entered into by the
government operate as a waiver of its non-suability; distinction must still be made
between one which is executed in the exercise of its sovereign function and another
which is done in its proprietary capacity.
In United States of America v. Ruiz (136 SCRA 487), where the questioned
transaction dealt with the improvements on the wharves in the naval installation at Subic
Bay, we held:
“The traditional rule of immunity exempts a State from being sued in the
courts of another State without its consent or waiver. This rule is a necessary
consequence of the principle of independence and equality of States. However,
the rules of International Law are not petrified; they are constantly developing
and evolving. And because the activities of states have multiplied, it has been
necessary to distinguish them - between sovereign and governmental acts (jure
imperii) and private, commercial and proprietary acts (jure gestionis). The result
is that State immunity now extends only to acts jure imperii. The restrictive
application of State immunity is now the rule in the United States, the United
Kingdom and other states in Western Europe.
Xxx
When is a suit against a public official deemed to be a suit against the State?
Discuss.
The doctrine of state immunity from suit applies to complaints filed against public
officials for acts done in the performance of their duties. The rule is that the suit must
be regarded as one against the State where the satisfaction of the judgment against the
public official concerned will require the State itself to perform a positive act, such as
appropriation of the amount necessary to pay the damages awarded to the plaintiff.
The rule does not apply where the public official is charged in his official capacity
for acts that are unlawful and injurious to the rights of others. Public officials are not
exempt, in their personal capacity, from liability arising from acts committed in bad faith.
Neither does it apply where the public official is clearly being sued not in his
official capacity but in his personal capacity, although the acts complained of may have
been committed while he occupied a public position. (Amado J. Lansang v. CA, G.R.
No. 102667, Feb. 23, 2000, 2nd Div. [Quisumbing])
As early as 1954, this Court has pronounced that an officer cannot shelter
himself by the plea that he is a public agent acting under the color of his office when his
acts are wholly without authority. Until recently in 1991 (Chavez v. Sandiganbayan, 193
SCRA 282 [1991]), this doctrine still found application, this Court saying that immunity
from suit cannot institutionalize irresponsibility and non-accountability nor grant a
privileged status not claimed by any other official of the Republic. (Republic v.
Sandoval, 220 SCRA 124, March 19, 1993, En Banc [Campos, Jr.])
A petition filed for the issuance of a Writ of Kalikasan directed against the
Commander of the US Pacific Fleet for the destruction of our corrals in Tubbataha reef
(a protected area system under the NIPAS [National Integrated Protected Areas
System] and a UN declared World Heritage Site because of its rich marine bio-diversity)
in the Sulu Sea caused by the USS Guardian, an American naval vessel when it ran
aground there in the course of its voyage to Indonesia from its base in Okinawa, Japan,
will not prosper for lack of jurisdiction following the doctrine of sovereign equality of all
States. In effect, the suit is a suit against the US government and, therefore, should be
dismissed.
The waiver of immunity from suit of the USunder the Visiting Forces Agreement
(VFA) applies only to waiver from criminal jurisdiction, so that if an American soldier
commits an offense in the Philippines, he shall be tried by Philippine courts under
9
Philippine laws. The waiver did not include the special civil action for the issuance of a
Writ of Kalikasan.
Also, the demand for compensation for the destruction of our corrals in
Tubbataha reef has been rendered moot and academic. After all, the US already
signified its intention to pay damages, as expressed by the US embassy officials in the
Philippines, the only request is that a panel of experts composed of scientists be
constituted to assess the total damage caused to our corrals there, which request is not
unreasonable.
The funds of the UP are government funds that are public in character. They
include the income accruing from the use of real property ceded to the UP that may be
spent only for the attainment of its institutional objectives. Hence, the funds subject of
this action could not be validly made the subject of writ of execution or garnishment.
The adverse judgment rendered against the UP in a suit to which it had impliedly
consented was not immediately enforceable by execution against the UP, because
suability of the State did not necessarily mean its liability. (UP v. Dizon, G.R. No.
171182, 679 SCRA 54, 23 August 2012, 1st Div. [Bersamin])
To our mind, it would be the apex of injustice and highly inequitable for us to
defeat petitioners-contractors‟ right to be duly compensated for actual work performed
and services rendered, where both the government and the public have, for years,
received and accepted benefits from said housing project and reaped the fruits of
petitioners-contractors‟ honest toil and labor.
Incidentally, respondent likewise argues that the State may not be sued in the
instant case, invoking the constitutional doctrine of Non-suability of the State, otherwise
known as the Royal Prerogative of Dishonesty.
Under these circumstances, respondent may not validly invoke the Royal
Prerogative of Dishonesty and conveniently hide under the State‟s cloak of invincibility
against suit, considering that this principle yields to certain settled exceptions. True
enough, the rule, in any case, is not absolute for it does not say that the state may not
be sued under any circumstances.
Thus, in Amigable v. Cuenca, this Court, in effect, shred the protective shroud
which shields the state from suit, reiterating our decree in the landmark case of
Ministerio v. CFI of Cebu that “the doctrine of governmental immunity from suit cannot
serve as an instrument for perpetrating an injustice on a citizen.” It is just as important,
if not more so, that there be fidelity to legal norms on the part of officialdom if the rule of
law were to be maintained.
Although the Amigable and Ministerio cases generously tackled the issue of the
State‟s immunity from suit vis a vis the payment of just compensation for expropriated
property, this Court nonetheless finds the doctrine enunciated in the aforementioned
cases applicable to the instant controversy, considering that the ends of justice would
10
be subverted if we were to uphold, in this particular instance, the State‟s immunity from
suit.
To be sure, this Court – as the staunch guardian of the citizens‟ rights and
welfare – cannot sanction an injustice so patent on its face, and allow itself to be an
instrument in the perpetration thereof. Justice and equity sternly demand that the
State‟s cloak of invincibility against suit be shred in this particular instance, and that
petitioners-contractors be duly compensated – on the basis of quantum meruit – for
construction done on the public works housing project. (EPG Construction Co. v.
Vigilar, 354 SCRA 566, Mar.16, 2001, 2nd Div. [Buena])
Under the 1987 Constitution, an international law can become part ofthe sphere
ofdomestic law either by transformation or incorporation. The transformation method
requires that an international law be transformed into a domestic law through a
constitutional mechanism such as local legislation. On the other hand, generally
accepted principles of international law, by virtue of the incorporation clause of the
Constitution, form part of the laws of the land even if they do not derive from treaty
stipulations. Generally accepted principles of international law include international
customs as evidence of a general practice accepted as law, and general principles of
law recognized by civilized nations. International customary rules are accepted as
binding as a resultfrom the combination of two elements: the established, widespread,
and consistent practice on the part of States; and a psychological element known as the
opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter
element is a belief that the practice in question is rendered obligatory by the existence
of a rule of law requiring it. “General principles of law recognized by civilized nations”
are principles “established by a process of reasoning” or judicial logic, based on
principles which are “basic to legal systems generally,”such as “general principles of
equity, i.e., the general principles of fairness and justice,” and the “general principles
against discrimination” which is embodied in the “Universal Declaration of Human
Rights, the International Covenant on Economic, Social and Cultural Rights, the
International Convention on the Eliminationof All Forms of Racial Discrimination, the
Convention Against Discrimination in Education, the Convention (No. 111) Concerning
Discrimination in Respect of Employment and Occupation.” These are the same core
principles which underlie the Philippine Constitution itself, and embodied in the due
process and equal protection clauses of the Bill of Rights. (Mary Grace Natividad S.
Poe-Llamanzares v. COMELEC, G R. No. 221697, March 8, 2016, En Banc [Perez])
11
principle of international law. (The Province of North Cotabato v. The Government
of the Republic of the Philippines Peace Panel, G.R. No. 183591, 568 SCRA 402,
October 14, 2008, En Banc [Carpio-Morales])
The Yogyakarta Principles: Have they evolved into a generally accepted principle
of international law and, therefore, binding upon the Philippines?
At this time, we are not prepared to declare that these Yogyakarta Principles
contain norms that are obligatory on the Philippines. There are declarations and
obligations outlined in said Principles which are not reflective of the current state of
international law, and do not find basis in any of the sources of international law
enumerated under Article 38(1) of the Statute of the International Court of Justice. X x x
Xxx
Using even the most liberal of lenses, these Yogyakarta Principles, consisting of
a declaration formulated by various international law professors, are – at best – de lege
refenda – and do not constitute binding obligations on the Philippines. X x x (Ang
LADLAD LGBT Party v. COMELEC, G.R. No. 190582, 618 SCRA 32, April 8, 2010,
En Banc [Del Castillo])
In this case, the SC ruled that this provision is self-executing. It was also in this
case where the Court clarified that the rule now is that all provisions of the Constitution
are presumed to be self-executing, rather than non-self-executing. Elaborating, the
Court explained that if a contrary presumption is adopted, the whole Constitution shall
remain dormant and be captives of Congress, which could have disastrous
consequences.
Also, in this case the SC held that “patrimony” simply means “heritage.” Thus,
when we speak of “national patrimony,” we refer not only to the natural resources of the
Philippines but as well as the cultural heritage of the Filipino people.
Xxx
Any citizen or juridical entity desiring to operate a public utility must therefore
meet the minimum nationality requirement prescribed in Section 11, Article XII of the
Constitution. Hence, for a corporation to be granted authority to operate a public utility,
at least 60 percent of its capital must be owned by Filipino citizens.
The crux of the controversy is the definition of the term capital. Does the term
capital in Section 11, Article XII of the Constitution refer to common shares or to the
total outstanding capital stock (combined total of common and non-voting preferred
shares)?
Xxx
Xxx
Considering that common shares have voting rights which translate to control, as
opposed to preferred shares which usually have no voting rights, the term capital in
13
Section 11, Article XII of the Constitution refers only to common shares. However, if the
preferred shares also have the right to voter in the election of directors, then the term
capital shall include such preferred shares because the right to participate in the control
or management of the corporation is exercised through the right to vote in the election
of directors. In short, the term capital in Section 11, Article XII of the Constitution
refers only to shares of stock that can vote in the election of directors.
This interpretation is consistent with the intent of the framers of the Constitution
to place in the hands of Filipino citizens the control and management of public utilities.
Xxx
Xxx
To construe broadly the term capital as the total outstanding capital stock,
including both common and non-voting preferred shares, grossly contravenes the intent
and letter of the Constitution that the State shall develop a self-reliant and independent
national economy effectively controlled by Filipinos. A broad definition unjustifiably
disregards who owns the all-important voting stock, which necessarily equates to
control of the public utility.
Xxx
Indisputably, construing the term capital in Section 11, Article XII of the
Constitution to include both voting and non-voting shares will result in the abject
surrender of our telecommunications industry to foreigners, amounting to a clear
abdication of the States constitutional duty to limit control of public utilities to Filipino
citizens. Such an interpretation certainly runs counter to the constitutional provision
reserving certain areas of investment to Filipino citizens, such as the exploitation of
natural resources as well as the ownership of land, educational institutions and
advertising businesses. The Court should never open to foreign control what the
Constitution has expressly reserved to Filipinos for that would be abetrayal of the
Constitution and of the national interest. The Court must perform its solemn duty to
defend and uphold the intent and letter of the Constitution to ensure x x x a self-reliant
and independent national economy effectively controlledby Filipinos.
Section 11, Article XII of the Constitution, like other provisions of the Constitution
expressly reserving to Filipinos specific areas of investment, such as the development
of natural resources and ownership of land, educational institutions and advertising
business, is self-executing. There is no need for legislation to implement these self-
executing provisions of the Constitution. X x x
Xxx
[We] rule that the term capital in Section 11, Article XII of the 1987 Constitution
refers only to shares of stock entitled to vote in the election of directors, and thus in the
present case only to common shares, and not to the total outstanding capital stock
(common and non-voting preferred shares.)
14
The Philippine national population program has always been grounded on two
cornerstone principles: “principle of no-abortion” and the “principle of non-
coercion.”These principles are not merely grounded on administrative policy, but
rather, originates from the constitutional protection which expressly provided to afford
protection to life and guarantee religious freedom.
Majority of Members of the Court are of the position that the question of when life
begins is a scientific and medical issue that should not be decided, at this stage, without
proper hearing and evidence. During the deliberations, however, it was agreed upon
that the individual members of the Court could express their own views on this matter.
In this regard, the ponente, is of the strong view that life begins at fertilization.
Xxx
Textually, the Constitution affords protection to the unborn from conception. This
is undisputable because before conception, there is no unborn to speak of. For said
reason, it is no surprise that the Constitution is mute as to any proscription prior to
conception or when life begins. The problem has arisen because, amazingly, there are
quarters who have conveniently disregarded the scientific fact that conception is
reckoned from fertilization. They are waving the view that life begins at implantation.
Hence, the issue of when life begins.
Xxx
In conformity with the above principle, the traditional meaning of the word
“conception” which, as described and defined by all reliable and reputable sources,
means that life begins at fertilization.
Xxx
Equally apparent, however, is that the Framers of the Constitution did not intend
to ban all contraceptives for being unconstitutional. From the discussions above,
contraceptives that kill or destroy the fertilized ovum should be deemed an abortive and
thus prohibited. Conversely, contraceptives that actually prevent the union of the male
sperm and the female ovum, and those that similarly take action prior to fertilization
should be deemed non-abortive, and thus, constitutionally permissible.(James M.
Imbong, et al. v. Hon. Paquito N. Ochoa, Jr., et al., GR No. 204819, April 8, 2014,
En Banc [Mendoza])
The Right to Health and to a Balanced and Healthful Ecology in Accord with the
Rhythm and Harmony of Nature
15
International Service for the Acquisition of Agri-Biotech Applications, Inc. v.
Greenpeace Southeast Asia (Philippines), et al., G.R. No. 209271, December 8,
2015, En Banc (Villarama, Jr.)
Principle 15 codified for the first time at the global level the precautionary
approach, which indicates that lack of scientific certainty is no reason to postpone action
to avoid potentially serious or irreversible harm to the environment. It has been
incorporated in various international legal instruments. The Cartagena Protocol on
Biosafety to the Convention on Biological Diversity, finalized and adopted in Montreal on
January 29, 2000, establishes an international regime primarily aimed at regulating
trade in GMOs intended for release into the environment, in accordance with Principle
15 of the Rio Declaration on Environment and Development. X x x
The precautionary principle applies when the following conditions are met:
The Rules (of Procedure for Environmental Cases) likewise incorporated the
principle in Part V, Rule 20, which states:
PRECAUTIONARY PRINCIPLE
16
Sec. 1. Applicability. – When there is a lack of full scientific certainty in
establishing a causal link between human activity and environmental effect, the
court shall apply the precautionary principle in resolving the case before it.
Under this Rule, the precautionary principle finds direct application in the
evaluation of evidence in cases before the courts. The precautionary principle bridges
the gap in cases where scientific certainty in factual findings cannot be achieved. By
applying the precautionary principle, the court may construe a set of facts as warranting
either judicial action or inaction, with the goal of preserving and protecting the
environment. This may be further evinced from the second paragraph where bias is
created in favor of the constitutional right of the people to a balanced and healthful
ecology. In effect, the precautionary principle shifts the burden of evidence of harm
away from those likely to suffer harm and onto those desiring to change the status quo.
An application of the precautionary principle to the rules on evidence will enable courts
to tackle future environmental problems before ironclad scientific consensus emerges.
(Annotation to the Rules of Procedure for Environmental Cases)
Assessing the evidence on record, as well as the current state of GMO research
worldwide, the Court finds all the three conditions present in this case – uncertainty, the
possibility of irreversible harm and the possibility of serious harm.
Xxx
17
Alongside the aforesaid uncertainties, the non-implementation of the NBF
(National Biosafety Framework) in the crucial stages of risk assessment and public
consultation, including the determination of the applicability of the EIS (Environmental
Impact Statement) requirements to GMO field testing, are compelling reasons for the
application of the precautionary principle. There exists a preponderance of evidence
that the release of GMOs into the environment threatens to damage our ecosystems
and not just the field trial sites, and eventually the health of our people once the Bt
eggplant are consumed as food. Adopting the precautionary approach, the Court rules
that the principles of the NBF need to be operationalized first by the coordinated actions
of the concerned departments and agencies before allowing the release into the
environment of genetically modified eggplant. The more prudent course is to
immediately enjoin the Bt talong field trials and approval for its propagation or
commercialization until the said government offices shall have performed their
respective mandates to implement the NBF.
We have found the experience of India in the Bt brinjal field trials – for which an
indefinite moratorium was recommended by a Supreme Court-appointed committee till
the government fixes regulatory and safety aspects – as relevant because majority of
Filipino farmers are also small-scale farmers. Further, the precautionary approach
entailed inputs from all stakeholders, including the marginalized farmers, not just the
scientific community. This proceeds from the realization that acceptance of uncertainty
is not only a scientific issue, but is related to public policy and involves an ethical
dimension. For scientific research alone will not resolve all the problems, but
participation of different stakeholders from scientists to industry, NGOs, farmers and the
public will provide a needed variety of perspective foci, and knowledge. (International
Service for the Acquisition of Agri-biotech Applications, Inc. v. Greenpeace
Southeast Asia (Philippines), et al., GR No. 209271, December 8, 2015, En Banc
[Villarama])
The crystal toxin genes from the soil bacterium Bacillus thuringiensis (Bt) were
incorporated into the eggplant (talong) genome to produce the protein CrylAc which is
toxic to the target insect pests. CrylAc protein is said to be highly specific to
lepidopteran larvae such as the fruit and shoot borer (FSB), the most destructive insect
pest of eggplant. (International Service for the Acquisition of Agri-biotech
Applications, Inc. v. Greenpeace Southeast Asia (Philippines), et al., GR No.
209271, December 8, 2015, En Banc [Villarama])
Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al.,
G.R. No. 189185, August 16, 2016, En Banc (Bersamin)
We cannot see the presence of all the elements. To begin with, there has
been no scientific study. Although the precautionary principle allows lack of full
scientific certainty in establishing a connection between the serious or
irreversible harm and the human activity, its application is still premised on
empirical studies. Scientific analysis is still a necessary basis for effective policy
choices under the precautionary principle.
The only study conducted to validate the effects of aerial spraying appears
to be the Summary Report on the Assessment and Fact-Finding Activities on the
19
Issue of Aerial Spraying in Banana Plantations. Yet, the fact-finding team that
generated the report was not a scientific study that could justify the resort to the
precautionary principle. In fact, the Sangguniang Bayan ignored the findings and
conclusions of the fact-finding team x x x.
Petitioners in this case were marine mammals (toothed whales, dolphins, and
other cetacean species) but were joined by human beings as “stewards of nature.
Are these marine mammals the proper parties to file the petition? In this case,
actually the SC did not rule squarely on this issue. The Court ruled instead that the
issue of whether these marine mammals have locus standi to file the petition had been
eliminated because of Section 5, Rules for the Enforcement of Environmental Laws,
which allows any citizen to file a petition for the enforcement of environmental laws
(Citizen‟s Suit) and, in their petition, these marine mammals were joined by human
beings as “stewards of nature.”
Service Contracts with Foreign Corporations for Exploration of Oil and Petroleum
Products (Paragraph 4, Section 2, Article XII, 1987 Constitution)
In these consolidated petitions, this Court has determined that the various issues
raised by the petitioners may be condensed into two primary issues:
Procedural Issue: Locus standi of the Resident Marine Mammals and Stewards
x x x; and
Procedural Issue
The Resident Marine Mammals, through the Stewards, “claim” that they have the
legal standing to file this action since they stand to be benefited or injured by the
judgment in this suit, citing Oposa v. Factoran, Jr. They also assert their right to sue for
the faithful performance of international and municipal environment laws created in their
20
favor and for their benefit. In this regard, they propound that they have a right to
demand that they be accorded the benefits granted to them in multilateral international
instruments that the Philippine Government had signed, under the concept of stipulation
pour autrui.
Xxx
In light of the foregoing, the need to give the Resident Marine Mammals legal
standing has been eliminated by our Rules, which allow any Filipino citizen, as a
steward of nature, to bring to suit to enforce our environmental laws. It is worth noting
here that the Stewards are joined as real parties in the Petition and not just in
representation of the named cetacean species. The Stewards x x x having shown in
their petition that there may be possible violations of laws concerning the habitat of the
Resident Marine Mammals, are therefore declared to possess the legal standing to file
this petition.
On the Legality of Service Contract No. 46 vis-à-vis Section 2, Article XII of the
1987 Constitution
This Court has previously settled the issue of whether service contracts are still
allowed under the 1987 Constitution. In La Bugal, we held that the deletion of the words
“service contracts” in the 1987 Constitution did not amount to a ban on them per se. In
fact, in that decision, we quoted in length, portions of the deliberations of the members
of the Constitutional Commission (ConCom) to show that in deliberating on paragraph
4, Section 2, Article XII, they were actually referring to service contracts as understood
in the 1973 Constitution, albeit with safety measures to eliminate or minimize the
abuses prevalent during the martial law regime.
From the foregoing, we are impelled to conclude that the phrase agreements
involving either technical or financial assistance, referred to in paragraph 4, are in fact
service contracts. But unlike those of the 1973 variety, the new ones are between
foreign corporations acting as contractors on the one hand; and on the other, the
government as principal or “owner” of the works. In the new service contacts, the
foreign contractors provide capital, technology and technical know-how, and managerial
expertise in the creation and operation of large-scale mining/extractive enterprises; and
the government, through its agencies (DENR, MGB), actively exercises control and
supervision over the entire operation.
Such service contracts may be entered into only with respect to minerals,
petroleum and other mineral oils. The grant thereof is subject to several safeguards,
among which are these requirements:
21
(1) The service contract shall be crafted in accordance with a general law that will
set standard or uniform terms, conditions and requirements, presumably to
attain a certain uniformity in provisions to avoid the possible insertion of terms
disadvantageous to the country.
(2) The President shall be the signatory of the government because, supposedly
before an agreement is presented to the President for signature, it will have
been vetted several times over at different levels to ensure that it conforms to
law and can withstand public scrutiny.
(3) Within thirty days of the executed agreement, the President shall report it to
Congress to give that branch of government an opportunity to look over the
agreement and interpose timely objections, if any.
` Adhering to the aforementioned guidelines, this Court finds that SC-46 is indeed
null and void for noncompliance with the requirements of the 1987 Constitution.
This Court could not simply assume that while Presidential Decree No. 87 had
not yet been expressly repealed, it had been impliedly repealed. X x x
But note must be made at this point that while Presidential Decree No. 87 may
serve as the general law upon which a service contract for petroleum exploration and
extraction may be authorized, x x x the exploitation and utilization of this energy
resource in the present case may be allowed only through a law passed by Congress,
since the Tanon Strait is a NIPAS (National Integrated Protected Areas System) area.
2. President was not the signatory to SC-46 and the same was not submitted to
Congress
While the Court finds that Presidential Decree No. 87 is sufficient to satisfy the
requirement of a general law, the absence of the two other conditions, that the
President be a signatory to SC-46, and that Congress be notified of such contract,
renders it null and void.
As SC-46 was executed in 2004, its terms should have conformed not only to the
provisions of Presidential Decree No. 87, but also those of the 1987 Constitution. X x x
22
Paragraph 4, Section 2, Article XII of the 1987 Constitution requires that the
President himself enter into any service contract for the exploration of petroleum. SC-
46 appeared to have been entered into and signed only by the DOE (Department of
Energy) through its then Secretary, Vicente S. Perez, Jr., contrary to the said
constitutional requirement. Moreover, public respondents have neither shown nor
alleged that Congress was subsequently notified of the execution of such contract.
Public respondents‟ implied argument that based on the “alter ego principle,”
their acts are also that of then President Macapagal-Arroyo‟s, cannot apply in this case.
In Joson v. Torres (352 Phil. 888, 915 [1998]), we explained the concept of the alter ego
principle or the doctrine of qualified political agency and its limits x x x.
Under this doctrine, which recognizes the establishment of a single executive, all
executive and administrative organizations are adjuncts of the Executive Department,
the heads of the various executive departments are assistants and agents of the Chief
Executive, and, except in cases where the Chief Executive is required by the
Constitution or law to act in person or the exigencies of the situation demand that he act
personally, the multifarious executive and administrative functions of the Chief
Executive are performed by and through the executive departments, and the acts of the
Secretaries of such departments, performed and promulgated in the regular course of
business, are, unless disapproved or reprobated by the Chief Executive presumably the
acts of the Chief Executive.
As this Court has held in La Bugal, our Constitution requires that the President
himself be the signatory of service agreements with foreign-owned corporations
involving the exploration, development, and utilization of our minerals, petroleum, and
other mineral oils. This power cannot be taken lightly.
In this case, the public respondents have failed to show that the President had
any participation in SC-46. Their argument that their acts are actually the acts of then
President Macapagal-Arroyo, absent proof of her disapproval, must fail as the
requirement that the President herself enter into these kinds of contracts are embodied
not just in any ordinary statute, but in the Constitution itself. These service contracts
involving the exploitation, development, and utilization of our natural resources are of
paramount interest to the present and future generations. Hence, safeguards were put
in place to insure that the guidelines set by law are meticulously observed and likewise
to eradicate the corruption that may easily penetrate departments and agencies by
ensuring that the President has authorized or approved of these service contracts
herself.
23
Even under the provisions of Presidential Decree No. 87, it is required that the
Petroleum Board, now the DOE (Department of Energy), obtain the President‟s
approval for the execution of any contract under said statute x x x.
Xxx
Moreover, SC-46 was not executed for the mere purpose of gathering
information on the possible energy resources in the Tanon Strait as it also provides for
the parties‟ rights and obligations relating to extraction and petroleum production should
oil in commercial quantities be found to exist in the area. While Presidential Decree No.
87 may serve as the general law upon which a service contract for petroleum
exploration and extraction may be authorized, the exploitation and utilization of this
energy resource in the present case may be allowed only through a law passed by
Congress, since the Tanon Strait is a NIPAS (National Integrated Protected Areas
System) area. Since there is no such law specifically allowing oil exploration and/or
extraction in the Tanon Strait, no energy resource exploitation and utilization may be
done in said protected seascape.
Academic Freedom
Academic freedom of educational institutions has been defined as the right of the
school or college to decide for itself, its aims and objectives, and how best to attain
them - free from outside coercion or interference save possibly when the overriding
public welfare calls for some restraint. It has a wide sphere of autonomy certainly
extending to the choice of students. Said constitutional provision is not to be construed
in a niggardly manner or in a grudging fashion. That would be to frustrate its purpose
and nullify its intent. (University of San Agustin, Inc. v. Court of Appeals, 230 SCRA
761, 774-775, March 7, 1994 [Nocon])
What are the essential freedoms subsumed in the term “academic freedom”?
In Ateneo de Manila University v. Capulong (G.R. No. 99327, 27 May 1993), this
Court cited with approval the formulation made by Justice Felix Frankfurter of the
essential freedoms subsumed in the term “academic freedom”encompassing not only
“the freedom to determine x x x on academic grounds who may teach, what may be
taught (and) how it shall be taught,” but likewise “who may be admitted to study.” We
have thus sanctioned its invocation by a school in rejecting students who are
academically delinquent, or a laywoman seeking admission to a seminary, or students
24
violating “School Rules on Discipline.” (Isabelo, Jr. v. Perpetual Help College of
Rizal, Inc., 227 SCRA 595-597, Nov. 8, 1993, En Banc [Vitug])
25
It is important to note, however, that what is really required to originate
exclusively in the House of Representatives is not the law, but only the bill. The Senate
has the power to propose or concur with amendments. (Tolentino v. Secretary of
Finance)
The 1987 Constitution provides the basis for the party-list system of
representation. Simply put, the party-list system is intended to democratize political
power by giving political parties that cannot win in legislative district elections a chance
to win seats in the House of Representatives. The voter elects two representatives in
the House of Representatives: one for his or her legislative district; and another for his
or her party-list group or organization of choice.(Atong Paglaum, Inc., et al. v.
COMELEC, G.R. No. 203766, 694 SCRA 477, April 2, 2013, En Banc [Carpio])
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.
26
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.
Based on the foregoing, it can be inferred that although the party-list system is a
social justice tool designed to have the marginalized and underrepresented sectors of
society represented in the House of Representatives, nonetheless, the dominant
political parties are not totally prohibited from participating in party-list elections.
Although, as a rule, they may not participate in party-list elections if they field
candidates in district elections, however, by way of an exception, they may still
participate through their sectoral wing, provided that the sectoral wing is registered
separately as a political party in the COMELEC and is linked to the dominant political
party through a coalition.(Atong Paglaum, Inc., et al. v. COMELEC, G.R. No. 203766,
694 SCRA 477, April 2, 2013, En Banc [Carpio])
However, the Supreme Court clarified, based on the intent of the framers of the
1987 Constitution, that what is prohibited is the registration of a religious sect as a
political party; there is no prohibition against a priest running as a candidate.
Ang Ladlad-LGBT Party v. Commission on Elections, G.R. No. 190582, 618 SCRA
32, April 8, 2010, En Banc (Del Castillo)
The act of the COMELEC of not allowing the registration of Ang Ladlad-LGBT
Party as a political party to participate in party-list elections on the ground that its
members are “immoral,” citing verses from the Bible and the Koran, is tainted with grave
abuse of discretion as it violated the non-establishment clause of freedom of religion
and, therefore, should be nullified.
27
those under the party-list. Based on this, the ratio is 4:1, i.e., for every four (4) district
representatives, there should be one (1) party-list representative.
What was declared unconstitutional in this case was not the two (2) percent
threshold itself; but rather, the continued application of the two (2) percent threshold in
determining the additional seats that will be allocated to winners in party-list elections.
Thus, the SC clarified:
“X x x
“We therefore strike down the two percent threshold only in relation to the
distribution of the additional seats as found in the second clause of Section 11(b)
of R.A. No. 7941. The two percent threshold presents an unwarranted obstacle
to the full implementation of Section 5(2), Article VI of the Constitution and
prevents the attainment of “the broadest possible representation of party,
sectoral or group interests in the House of Representatives.”
Once elected, both the district representatives and the party-list representatives
are treated in like manner. They have the same deliberative rights, salaries, and
emoluments. They can participate in the making of laws that will directly benefit their
legislative districts or sectors. They are also subject to the same term limitation of three
years for a maximum of three consecutive terms. (Daryl Grace J. Abayon v. The
28
Honorable House of Representatives Electoral Tribunal, et al., G.R. Nos. 189466
and 189506, 612 SCRA 375, 11 February 2010, En Banc [Abad])
This is intrinsic in the grant of legislative power itself to Congress, and integral to
the system of checks and balances inherent in a democratic system of government.
1. Legislative Scrutiny
2. Legislative Investigation
3. Legislative Supervision
29
Considering petitioners‟ submission and in reference to its local concept and
legal history, the Court defines the Pork Barrel System as the collective body of
rules and practices that govern the manner by which lump-sum, discretionary
funds, primarily intended for local projects, are utilized through the respective
participations of the Legislative and Executive branches of government, including
its members. The Pork Barrel System involves two (2) kinds of lump-sum,
discretionary funds:
The Court renders this Decision to rectify an error which has persisted in the
chronicles of our history. In the final analysis, the Court must strike down the Pork
Barrel System as unconstitutional in view of the inherent defects in the rules within
which it operates. To recount, insofar as it has allowed legislators to wield, in varying
gradations, non-oversight, post-enactment authority in vital areas of budget execution,
the system has violated the principle of separation of powers; insofar as it has
conferred unto legislators the power of appropriation by giving them personal,
discretionary funds from which they are able to fund specific projects which they
themselves determine, it has similarly violated the principle of non-delegability of
legislative power; insofar as it has created a system of budgeting wherein items are
not textualized into the appropriations bill, it has flouted the prescribed procedure of
presentment and, in the process, denied the President the power to veto items;
insofar as it has diluted the effectiveness of congressional oversight by giving legislators
a stake in the affairs of budget execution, an aspect of governance which they may be
called to monitor and scrutinize, the system has equally impaired public
accountability; insofar as it has authorized legislators, who are national officers, to
intervene in affairs of purely local nature, despite the existence of capable local
institutions, it has likewise subverted genuine local autonomy; and again, insofar as it
has conferred to the President the power to appropriate funds intended by law for
energy-related purposes only to other purposes he may deem fit as well as other public
funds under the broad classification of “priority infrastructure development projects,” it
has once more transgressed the principle of non-delegability. (Belgica, et al. v. Exec.
Sec. Paquito N. Ochoa, et al., G.R. No. 208566, 710 SCRA 1, 160-161, Nov. 19,
2013, En Banc [Perlas-Bernabe])
30
No law shall be passed authorizing any transfer of appropriations;
however, the President, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and the heads of
Constitutional Commissions may, by law, be authorized to augment any item in
the general appropriations law for their respective offices from savings in other
items in their respective appropriations. (Section 25 [5], Article VI, 1987
Constitution)
Requisites for the valid transfer of appropriated funds under Section 25(5), Article
VI of the 1987 Constitution
(1) There is a law authorizing the President, the President of the Senate, the
Speaker of the House of Representatives, the Chief Justice of the Supreme
Court, and the heads of the Constitutional Commissions to transfer funds
within their respective offices;
(2) The funds to be transferred are savings generated from the appropriations of
their respective offices; and
(3) The purpose of the transfer is to augment an item in the general
appropriations law for their respective offices.(Maria Carolina P. Araullo, et
al. v. Benigno Simeon C. Aquino III, et al. G.R. No., 209287, 728 SCRA 1,
July 1, 2014, En Banc [Bersamin])
Congressional Investigations
There are two (2) kinds of congressional investigations, i.e., inquiry in aid of
legislation (Section 21, Article VI, 1987 Constitution); and the question hour (Section 22,
Article VI, 987 Constitution)
In Arnault v. Nazareno, the Court held that intrinsic in the grant of legislative
power itself to Congress by the Constitution is the power to conduct inquiries in aid of
legislation, for Congress may not be expected to enact good laws if it will be denied the
power investigate. Note that Arnault was decided in the 1950‟s under the 1935
Constitution, and in that Constitution there was no provision similar to that which is
expressly provided in the present Constitution. Yet, as early as that case, the Court
already recognized that this power is intrinsic in the grant of legislative power itself to
Congress by the Constitution.
In Bengzon, Jr. v. Senate Blue Ribbon Committee, two (2) relevant questions
were raised. First, is this power of each House of Congress to conduct inquiries in aid
of legislation absolute, or are there limitations? Second, is this power subject to judicial
review, or is it a political question?
As to the first question, the Court clarified that a mere reading of Section 21,
Article VI of the Constitution will show that the power is not really absolute; in fact there
are three (3) important limitations imposed therein, and these are:
31
2. It must be conducted in accordance with the duly published rules of
procedure of a House of Congress conducting such inquiry; and
3. The rights of persons appearing in or affected by such inquiry shall be
respected.
As to the second, the Court held that since it had already been shown that the
power is not really absolute, in fact, there are important limitations, it follows, therefore,
that such is subject to judicial review especially in view of the expanded power of the
Court to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
the government.
That‟s why in that case of Bengzon, Jr., the Court granted the petition for
certiorari and ordered the Senate Blue Ribbon Committee not to further conduct the
inquiry since the Court found that the purpose of said inquiry was not really in aid of
legislation; in fact the purpose was an encroachment on a judicial prerogative.
As explained by the Court in Senate v. Ermita, this question hour is not really a
regular feature of a presidential government, but is merely a borrowed concept from a
parliamentary government.
(PHILCOMSAT Holdings Corporation v. Senate, G.R. No. 180308, June 19, 2012 En
Banc [Perlas-Bernabe])
The Senate Committees‟ power of inquiry relative to PSR No. 455 has been
passed upon and upheld in the consolidated cases of In the Matter of the Petition for
Habeas Corpus of Camilo L. Sabio which cited Article VI, Section 21 of the Constitution.
The Court explained that such conferral of the legislative power of inquiry upon
any committee of Congress must carry with it all powers necessary and proper for its
effective discharge. On this score, the Senate Committee cannot be said to have acted
with grave abuse of discretion amounting to lack or in excess of jurisdiction when it
submitted Committee Resolution No. 312, given its constitutional mandate to conduct
legislative inquiries. Nor can the Senate Committee be faulted for doing so on the very
same day that the assailed resolution was submitted. The wide latitude given to
Congress with respect to these legislative inquiries has long been settled, otherwise,
Article VI, Section 21 would be rendered pointless.
The Court, in the earlier case of Almonte v. Vasquez, affirmed that the
presidential communications privilege is fundamental to the operation of government
and inextricably rooted in the separation of powers under the Constitution. Even Senate
v. Ermita reiterated this concept. There, the Court enumerated the cases in which the
claims of executive privilege was recognized, among them Almonte v. Chavez, Chavez
v. Presidential Commission on Good Government (PCGG), and Chavez v. PEA. The
32
Court articulated in these cases that “there are certain types of information which the
government may withhold from the public,” that there is a “government privilege against
public disclosure with respect to state secrets regarding military, diplomatic and other
national security matters”; and that “the right to information does not extend to
matters recognized as „privileged information‟ under the separation of powers, by
which the Court meant Presidential conversations, correspondences, and
discussions in closed-door Cabinet meetings.
Xxx
In this case, it was the President herself, through Executive Secretary Ermita,
who invoked executive privilege on a specific matter involving an executive agreement
between the Philippines and China, which was the subject of the three (3) questions
propounded to petitioner Neri in the course of the Senate Committees‟ investigation.
Thus, the factual setting of this case markedly differs from that passed upon in Senate
v. Ermita.
Moreover x x x the Decision in this present case hews closely to the ruling in
Senate v. Ermita, to wit:
Executive Privilege
“When Congress exercises its power of inquiry, the only way for
department heads to exempt themselves therefrom is by a valid claim of
privilege. They are not exempt by the mere fact that they are department
heads. Only one executive official may be exempted from this power – the
President on whom executive power is vested, hence, beyond the reach of
Congress except through the power of impeachment. It is based on he being the
highest official of the executive branch, and the due respect accorded to a co-
equal branch of government which is sanctioned by a long-standing custom.”
Section 17, Article VI of the Constitution provides that the HRET shall be the sole
judge of all contests relating to, among other things, the qualifications of the members of
the House of Representatives. Since party-list nominees are “elected members” of the
House of Representatives, the HRET has jurisdiction to hear and pass upon their
qualifications. By analogy with the cases of district representatives, once the party or
organization of the party-list nominee has been proclaimed and the nominee has taken
his oath and assumed office as member of the House of Representatives, the
COMELEC‟s jurisdiction over election contests relating to his qualification ends and the
HRET‟s own jurisdiction begins. (Daryl Grace J. Abayon v. The Honorable House of
34
Representatives Electoral Tribunal, et al., G.R. Nos. 189466 and 189506, 612 SCRA
375, 11 February 2010, En Banc [Abad])
It has already been established that there is one repository of executive powers,
and that is the President of the Republic. This means that when Section 1, Article VII of
the Constitution speaks of executive power, it is granted to the President and no one
else. Corollarily, it is only the President, as Chief Executive, who is authorized to
exercise emergency powers as provided under Section 23, Article VI, of the
Constitution, as well as what became known as the calling-out powers under Section
18, Article VII thereof.(Jamar Kulayan v. Gov. Abdusakur Tan, G.R. No. 187298, July
3, 2012, En Banc [Sereno, CJ]),
The duty to protect the State and its people must be carried out earnestly and
effectively throughout the whole territory of the Philippines in accordance with
constitutional provision on national territory. Hence, the President of the Philippines, as
the sole repository of executive power, is the guardian of the Philippine archipelago,
including all the islands and waters embraced therein and all other territories over which
the Philippines and sovereignty or jurisdiction. X x x
To carry out this important duty, the President is equipped with authority over the
Armed Forces of the Philippines (AFP), which is the protector of the people and the
state. X x x. In addition, the Executive is constitutionally empowered to maintain peace
and order, protect life, liberty, and property, and promote the general welfare. In
recognition of these powers, Congress has specified that the President must oversee,
ensure, and reinforce our defensive capabilities against external and internal threats
and, in the same vein, ensure that the country is adequately prepared for all national
and local emergencies arising from natural and man-made disasters.
This Court has interpreted the faithful execution clause as an obligation imposed
on the President, and not a separate grant of power. Section 17, Article VII of the
Constitution, expresses this duty in no uncertain terms and includes it in the provision
regarding the President‟s power of control over the executive department x x x.
Xxx
Hence, the duty to faithfully execute the laws of the land is inherent in executive
power and is intimately related to the other executive functions. X x x
35
These obligations are as broad as they sound, for a President cannot function
with crippled hands, but must be capable of securing the rule of law within all territories
of the Philippine Islands and be empowered to do so within constitutional limits.
Congress cannot, for instance, limit or take over the President‟s power to adopt
implementing rules and regulations for a law it has enacted.
The import of this characteristic is that the manner of the President‟s execution of
the law, even if not expressly granted by the law, is justified by necessity and limited
only by law, since the President must “take necessary and proper steps to carry into
execution the law.” X x x
It would therefore be remiss for the President and repugnant to the faithful-
execution clause of the Constitution to do nothing when the call of the moment requires
increasing the military‟s defensive capabilities, which could include forging alliances with
states that hold a common interest with the Philippines or bringing an international suit
against an offending state.
Xxx
Xxx
Understandably, this Court must view the instant case with the same perspective
and understanding, knowing full well the constitutional and legal repercussions of any
judicial overreach. (Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N.
Ochoa, Jr., et al., G.R. No. 212426, Jan. 12, 2016, En Banc [Sereno, CJ])
Under this doctrine, which recognizes the establishment of a single executive, all
executive and administrative organizations are adjuncts of the Executive Department,
the heads of the various executive departments are assistants and agents of the Chief
Executive, and, except in cases where the Chief Executive is required by the
36
Constitution or law to act in person or the exigencies of the situation demand that he act
personally, the multifarious executive and administrative functions of the Chief
Executive are performed by and through the executive departments, and the acts of the
Secretaries of such departments, performed and promulgated in the regular course of
business, are, unless disapproved or reprobated by the Chief Executive presumably the
acts of the Chief Executive. (Resident Marine Mammals of the Protected Seascape
Tanon Strait, et al. v. Secretary Angelo Reyes, et al., GR Nos. 180771 and 181527,
April 21, 2015, En Banc [Leonardo-De Castro])
The SC said “No.” It violated Section 2, 4 th par., Article XII of the Constitution
(National Economy and Patrimony) which states that it is the President who should
enter into that kind of contract with foreign corporations. Public respondents, in trying to
justify their action, however, invoked the doctrine of qualified political agency since the
Secretary of Energy is an alter-ego of the President. The SC clarified that this doctrine
of qualified political agency may not be validly invoked if it is the Constitution itself that
provides that the act should be performed by the President no less, especially since
what are involved are natural resources.
Not All Officers Appointed by the President under Section 16, Article VII of the
1987 Constitution Shall Require Confirmation by the Commission on
Appointments
Second, all other officers of the Government whose appointments are not
otherwise provided for by law;
37
Fourth, officers lower in rank whose appointments the Congress may by
law vest in the President alone.
Xxx
More than half a century ago, this Court had already ruled that an ad interim
appointment is permanent in character. In Summers v. Ozaeta, decided on October 25,
1948, we held that:
Thus, the term “ad interim appointment”, as used in letters of appointment signed
by the President, means a permanent appointment made by the President in the
meantime that Congress is in recess. It does not mean a temporary appointment that
can be withdrawn or revoked at any time. The term, although not found in the text of
the Constitution, has acquired a definite legal meaning under Philippine jurisprudence.
The Court had again occasion to explain the nature of an ad interim appointment in the
more recent case of Marohombsar v. Court of Appeals, where the Court stated:
An ad interim appointee who has qualified and assumed office becomes at that
moment a government employee and therefore part of the civil service. He enjoys the
constitutional protection that “[n]o officer or employee in the civil service shall be
removed or suspended except for cause provided by law.” (Section 2[3], Article IX-B of
the Constitution) Thus, an ad interim appointment becomes complete and irrevocable
once the appointee has qualified into office. X x x Once an appointee has qualified, he
acquires a legal right to the office which is protected not only by statute but also by the
Constitution. He can only be removed for cause, after notice and hearing, consistent
with the requirements of due process. (Matibag v. Benipayo, 380 SCRA 49, April 2,
2002, En Banc [Carpio])
While the President is still a civilian, Article II, Section 3 of the Constitution
mandates that civilian authority is, at all times, supreme over the military, making the
civilian president the nation‟s supreme military leader. The net effect of Article II,
Section 3, when read with Article VII, Section 18, is that a civilian President is the
ceremonial, legal and administrative head of the armed forces. The Constitution does
not require that the President must be possessed of military training and talents, but as
Commander-in-Chief, he has the power to direct military operations and to determine
military strategy. Normally, he would be expected to delegate the actual command of
the armed forces to military experts, but the ultimate power is his.(Jamar Kulayan v.
Gov. Abdusakur Tan, G.R. No. 187298, July 3, 2012, En Banc [Sereno, CJ])
In Jamar Kulayan v. Gov. Abdusakur Tan, G.R. No. 187298, July 3, 2012, En
Banc (Sereno, CJ), the Court held:
Given the foregoing, Governor Tan is not endowed with the power to call upon
the armed forces at his own bidding. In issuing the assailed proclamation, Governor
Tan exceeded his authority when he declared a state of emergency and called upon the
Armed Forces, the police, and his own civilian Emergency Force. The calling-out
39
powers contemplated under the Constitution is exclusive to the President. An exercise
by another official, even if he is the local chief executive, is ultra vires, and may not be
justified by the invocation of Section 465 of the Local Government Code.
Is the President’s power to call out the armed forces as their Commander-in-Chief
in order to prevent or suppress lawless violence, invasion or rebellion subject to
judicial review, or is it a political question?
When the President calls the armed forces to prevent or suppress lawless
violence, invasion or rebellion, he necessarily exercises a discretionary power solely
vested in his wisdom. This is clear from the intent of the framers and from the text of
the Constitution itself. The Court, thus, cannot be called upon to overrule the
President's wisdom or substitute its own. However, this does not prevent an
examination of whether such power was exercised within permissible constitutional
limits or whether it was exercised in a manner constituting grave abuse of discretion. In
view of the constitutional intent to give the President full discretionary power to
determine the necessity of calling out the armed forces, it is incumbent upon the
petitioner to show that the President's decision is totally bereft of factual basis. The
present petition fails to discharge such heavy burden as there is no evidence to support
the assertion that there exists no justification for calling out the armed forces. There is,
likewise, no evidence to support the proposition that grave abuse was committed
because the power to call was exercised in such a manner as to violate the
constitutional provision on civilian supremacy over the military. In the performance of
this Court's duty of “purposeful hesitation” before declaring an act of another branch as
unconstitutional, only where such grave abuse of discretion is clearly shown shall the
Court interfere with the President's judgment. To doubt is to sustain. (Integrated Bar
of the Philippines v. Hon. Ronaldo B. Zamora, G.R. No. 141284, Aug. 15, 2000, En
Banc [Kapunan])
He shall also have the power to grant amnesty with the concurrence of all
the Members of the Congress. (Section 19, 1987 Constitution)
Former President Estrada was granted an absolute pardon that fully restored all
his civil and political rights, which naturally includes the right to seek public office. The
wording of the pardon extended to former President Estrada is complete, unambiguous,
and unqualified. It is likewise unfettered by Articles 36 and 41 of the Revised Penal
Code. The only reasonable, objective, and constitutional interpretation of the language
of the pardon is that the same in fact conforms to Articles 36 and 41 of the Revised
Penal Code. (Atty. Alicia Risos-Vidal v. COMELEC, G.R. No. 206666, January 21,
2015, En Banc [Leonardo-De Castro])
40
pardons, along with other acts of executive clemency.
It is apparent that the only instances in which the President may not extend
pardon remain to be: (1) impeachment cases; (2) cases that have not yet resulted in a
final conviction; and (3) cases involving violations of election laws, rules and regulations
in which there was no favorable recommendation coming from the COMELEC.
Therefore, it can be argued that any act of Congress by way of statute cannot operate
to delimit the pardoning power of the President.
It is unmistakably the long-standing position of this Court that the exercise of the
pardoning power is discretionary in the President and may not be interfered with by
Congress or the Court, except only when it exceeds the limits provided for by the
Constitution.
The foregoing pronouncements solidify the thesis that Articles 36 and 41 of the
Revised Penal Code cannot, in any way, serve to abridge or diminish the exclusive
power and prerogative of the President to pardon persons convicted of violating penal
laws.
Xxx
Xxx
For this reason, Articles 36 and 41 of the Revised Penal Code should be
construed in a way that will give full effect to the executive clemency granted by the
President, instead of indulging in an overly strict interpretation that may serve to impair
or diminish the import of the pardon which emanated from the Office of the President
and duly signed by the Chief Executive himself/herself. The said codal provisions must
be construed to harmonize the power of Congress to define crimes and prescribe
penalties for such crimes and the power of the President to grant executive clemency.
All that said provisions impart is that the pardon of the principal penalty does not carry
with it the remission of the accessory penalties unless the President expressly includes
41
said accessory penalties in the pardon. It still recognizes the Presidential prerogative to
grant executive clemency and, specifically, to decide to pardon the principal penalty
while excluding its accessory penalties or to pardon both. Thus, Articles 36 and 41 only
clarify the effect of the pardon so decided upon by the President on the penalties
imposed in accordance with law.
A close scrutiny of the text of the pardon to former President Estrada shows that
both the principal penalty of reclusion perpetua and its accessory penalties are included
in the pardon. The first sentence refers to the executive clemency extended to former
President Estrada who was convicted by the Sandiganbayan of plunder and imposed a
penalty of reclusion perpetua. The latter is the principal penalty pardoned which
relieved him of imprisonment. The sentence that followed, which states that “(h)e is
hereby restored to his civil and political rights,” expressly remitted the accessory
penalties that attached to the principal penalty of reclusion perpetua. Hence, even if we
apply Articles 36 and 41 of the Revised Penal Code, it is indubitable from the text of the
pardon that the accessory penalties of civil interdiction and perpetual absolute
disqualification were expressly remitted together with the principal penalty of reclusion
perpetua.
In this jurisdiction, the right to seek public elective office is recognized by law as
falling under the whole gamut of civil and political rights.
Xxx
No less than the International Covenant on Civil and Political Rights, to which the
Philippines is a signatory, acknowledges the existence of said rights. X x x
Thus, from both law and jurisprudence, the right to seek public elective office is
unequivocally considered as a political right. Hence, the Court reiterates its earlier
statement that the pardon granted to former President Estrada admits no other
interpretation other than to mean that, upon acceptance of the pardon granted to him,
he regained his FULL civil and political rights – including the right to seek elective
office.(Atty. Alicia Risos-Vidal v. COMELEC, G.R. No. 206666, January 21, 2015, En
Banc [Leonardo-De Castro])
After the expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States of America concerning Military Bases, foreign
military bases, troops, or facilities shall not be allowed in the Philippines except
under a treaty duly concurred in by the Senate and, when the Congress so
requires, ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the other
contracting State. (Section 25, Article XVIII, 1987 Constitution)
The President also carries the mandate of being the sole organ in the conduct of
foreign relations. Since every state has the capacity to interact with and engage in
relations with other sovereign states, it is but logical that every state must vest in an
agent the authority to represent its interests to those other sovereign states.
Xxx
The role of the President in foreign affairs is qualified by the Constitution in that
the Chief Executive must give paramount importance to the sovereignty of the nation,
the integrity of its territory, its interest, and the right of the sovereign Filipino people to
self-determination. X x x(Rene A.V. Saguisag, et al. v. Executive Secretary Paquito
N. Ochoa, Jr., et al., G.R. No. 212426, Jan. 12, 2016, En Banc [Sereno, CJ])
The Relationship between the Two Major Presidential Functions and the Role of
the Senate
Clearly, the power to defend the State and to act as its representative in the
international sphere inheres in the person of the President. This power, however, does
not crystallize into absolute discretion to craft whatever instrument the Chief Executive
so desires. As previously mentioned, the Senate has a role in ensuring that treaties or
international agreements the President enters into, as contemplated in Section 21 of
Article VII of the Constitution, obtain the approval of two-thirds of its members.
Xxx
43
(Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., et al.,
G.R. No. 212426, Jan. 12, 2016, En Banc [Sereno, CJ])
In our jurisdiction, the power to ratify is vested in the President and not, as
commonly believed, in the legislature. The role of the Senate is limited only to giving or
withholding its consent, or concurrence, to the ratification. (BAYAN [Bagong
Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570,
Oct. 10, 2000, En Banc [Buena])
With respect to the Visiting Forces Agreement (VFA) entered into between the
Philippines and the USA in 1998, Section 25, Article XVIII of the Constitution
applies, it being a special provision
Section 21, Article VII deals with treaties or international agreements in general,
in which case, the concurrence of at least two-thirds (2/3) of all the Members of the
Senate is required to make the subject treaty, or international agreement, valid and
binding on the part of the Philippines. This provision lays down the general rule on
treaties or international agreements and applies to any form of treaty with a wide variety
of subject matter, such as, but not limited to, extradition or tax treaties or those
economic in nature. All treaties or international agreements entered into by the
Philippines, regardless of subject matter, coverage, or particular designation or
appellation, requires the concurrence of the Senate to be valid and effective.
In contrast, Section 25, Article XVIII is a special provision that applies to treaties
which involve the presence of foreign military bases, troops or facilities in the
Philippines. Under this provision, the concurrence of the Senate is only one of the
requisites to render compliance with the constitutional requirements and to consider the
agreement binding on the Philippines. Section 25, Article XVIII further requires that
“foreign military bases, troops, or facilities” may be allowed in the Philippines only by
virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast
in a national referendum held for that purpose if so required by Congress, and
recognized as such by the other contracting State.
Xxx
On the whole, the VFA is an agreement which defines the treatment of United
States troops and personnel visiting the Philippines. It provides for the guidelines to
govern such visits of military personnel, and further defines the rights of the United
States and the Philippine government in the matter of criminal jurisdiction, movement of
vessels and aircraft, importation and exportation of equipment, materials and supplies.
Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties
involving foreign military bases, troops, or facilities, should apply in the instant case. To
a certain extent and in a limited sense, however, the provisions of Section 21, Article VII
will find applicability with regard to the issue and for the sole purpose of determining the
number of votes required to obtain the valid concurrence of the Senate x x x.
44
It is a finely-imbedded principle in statutory construction that a special provision
or law prevails over a general one. Lex specialis derogat generali.(BAYAN [Bagong
Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570
and Companion Cases, Oct. 10, 2000, 342 SCRA 449, 481-492, En Banc [Buena])
Despite the President‟s roles as defender of the State and sole authority in
foreign relations, the 1987 Constitution expressly limits his ability in instances when it
involves the entry of foreign military bases, troops or facilities. The initial limitation is
found in Section 21 of the provisions on the Executive Department x x x. The specific
limitation is given by Section 25 of the Transitory Provisions x x x.
It is quite plain that the Transitory Provisions of the 1987 Constitution intended to
add to the basic requirements of a treaty under Section 21 of Article VII. This means
that both provisions must be read as additional limitations to the President‟s overarching
executive functions in matters of defense and foreign relations. (Rene A.V. Saguisag,
et al. v. Executive Secretary Paquito N. Ochoa, Jr., G.R. No. 212426, January 12,
2016, En Banc [Sereno, CJ])
The power of the President to enter into binding executive agreements without
Senate concurrence is already well-established in this jurisdiction. That power has
been alluded to in our present and past Constitutions, in various statutes, in Supreme
Court decisions, and during the deliberations of the Constitutional Commission. X x x
As the sole organ of our foreign relations, and the constitutionally assigned chief
architect of our foreign policy, the President is vested with the exclusive power to
conduct and manage the country‟s interface with other states and governments. Being
the principal representative of the Philippines, the Chief Executive speaks and listens
for the nation; initiates, maintains, and develops diplomatic relations with other states
and governments; negotiates and enters into international agreements; promotes trade,
investments, tourism and other economic relations; and settles international disputes
with other states.
45
One of the distinguishing features of executive agreements is that their validity
and effectivity are not affected by a lack of Senate concurrence. This distinctive feature
was recognized as early as in Eastern Sea Trading (1961) x x x (Rene A.V. Saguisag,
et al. v. Executive Secretary Paquito N. Ochoa, Jr., G.R. No. 212426, January 12,
2016, En Banc [Sereno, CJ])
The fear that EDCA is a reincarnation of the U.S. bases so zealously protested
by noted personalities in Philippine history arises not so much from xenophobia but from
a genuine desire for self-determination, nationalism, and above all a commitment to
ensure the independence of the Philippine Republic from any foreign domination.
Mere fears, however, cannot curtail the exercise by the President of the
Philippines of his Constitutional prerogatives in respect of foreign affairs. They cannot
cripple him when he deems that additional security measures are made necessary by
the times. X x x In the future, the Philippines must navigate a world in which armed
forces fight with increasing sophistication in both strategy and technology, while
employing asymmetric warfare and remote weapons.
In order to keep the peace in its archipelago in this region of the world, and to
sustain itself at the same time against the destructive forces of nature, the Philippines
will need friends. Who they are, and what form the friendships will take, are for the
President to decide. The only restriction is what the Constitution itself prohibits. It
appears that this overarching concern for balancing constitutional requirements against
the dictates of necessity was what led to EDCA.
The President shall submit to the Congress within thirty days from the
opening of every regular session, as the basis of the general appropriations bill, a
46
budget of expenditures and sources of financing, including receipts from existing
and proposed revenue measures. (Sec. 22, Art. VII, 1987 Constitution)
Emergency Power
The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. (Section 1, Article VIII, 1987 Constitution)
Thus, the Constitution vests judicial power in the Court and in such lower courts
as may be established by law. In creating a lower court, Congress concomitantly
determines the jurisdiction of that court, and that court, upon its creation, becomes by
operation of the Constitution one of the repositories of judicial power. However, only
the Court is a constitutionally created court, the rest being created by Congress in its
exercise of the legislative power.
The Constitution states that judicial power includes the duty of the courts of
justice not only “to settle actual controversies involving rights which are legally
demandable and enforceable” but also “to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.” It has thereby expanded the concept of
judicial power, which up to then was confined to its traditional ambit of settling actual
controversies involving rights that were legally demandable and enforceable.
The background and rationale of the expansion of judicial power under the 1987
Constitution were laid out during the deliberations of the 1986 Constitutional
Commission by Commissioner Roberto R. Concepcion (a former Chief Justice of the
Philippines) in his sponsorship of the proposed provisions on the Judiciary.
47
Our previous Constitutions equally recognized the extent of the power of judicial
review and the great responsibility of the Judiciary in maintaining the allocation of
powers among the three great branches of the Government.(Maria Carolina P.
Araullo, et al. v. Benigno Simeon C. Aquino III, et al. G.R. No., 209287, July 1,
2014, En Banc [Bersamin])
Baker v. Carr remains the starting point for analysis under the political question
doctrine.
In Tanada v. Cuenco, we held that political questions refer “to those questions
which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to the
legislative or executive branch of the government. It is concerned with issues
dependent upon the wisdom, not legality of a particular measure.” (Vinuya, et al. v. The
Honorable Executive Secretary Alberto G. Romulo, et al., G.R. No. 162230, April
28. 2010, En Banc [Del Castillo])
Saturnino C. Ocampo, et al. v. Rear Admiral Ernesto C. Enriquez, et al., G.R. No.
225973, November 8, 2016, En Banc (Peralta)
The petitioners failed to show that President Duterte committed grave abuse of
discretion when he allowed the burial of former President Ferdinand E. Marcos at the
“Libingan ng mga Bayani (LNMB).”
Held:
In sum, there is no clear constitutional or legal basis to hold that there was
a grave abuse of discretion amounting to lack or excess of jurisdiction which
would justify the Court to interpose its authority to check and override an act
entrusted to the judgment of another branch. Truly, the President‟s discretion is
not totally unfettered. X x x. At bar, President Duterte x x x acted within the
bounds of the law and jurisprudence, Notwithstanding the call of human rights
advocate, the Court must uphold what is legal and just. And that is not to deny
Marcos of his rightful place at the LNMB. For even the Framers of our
Constitution intend that full respect for human rights is available at any stage of a
person‟s development, from the time he or she becomes a person to the time he
or she leaves this earth.
There are certain things that are better left for history – not this Court – to
adjudge. The Court could only do so much in accordance with clearly
established rules and principles. Beyond that, it is ultimately for the people
themselves, as thesovereign, to decide, a taskthat may requirethe better
perspective that the passage of time provides.
Vinuya, et. al. v. The Honorable Executive Secretary Alberto G. Romulo, et. al.,
G.R. No. 162230, April 28. 2010, En Banc (Del Castillo)
48
The SC may not compel the President to take up the cause of the petitioners
(comfort women during World War II) against Japan. That will violate the doctrine of
separation of powers for that is a political question – a question in regard to which full
discretionary authority has been delegated by the Constitution to the President as the
chief architect of our foreign policy and as the spokesman of the nation in matters of
foreign relations. The most that the SC may do is to exhort her, to urge her to take up
petitioners cause – but not to compel her.
In matters of foreign policy, the Executive and the Judiciary must speak with just
one voice to avoid serious embarrassments and strained relations with foreign
countries. Elaborating, the Court held:
“To be sure, not all cases implicating foreign relations present political
questions, and courts certainly possess the authority to construe or invalidate
treaties and executive agreements. However, the question whether the
Philippine government should espouse claims of its nationals against a foreign
government is a foreign relations matter, the authority for which is demonstrably
committed by our Constitution not to the courts but to the political branches. In
this case, the Executive Department has already decided that it is to the best
interest of the country to waive all claims of its nationals for reparations against
Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the
courts to question.
“X x x
Requisites for a Proper Exercise by the Court of its Power of Judicial Review
49
The prevailing rule in constitutional litigation is that no question involving the
constitutionality or validity of a law or governmental act may be heard and decided by
the Court unless there is compliance with the legal requisites for judicial inquiry, namely:
(a) there must be an actual case or controversy calling for the exercise of judicial
power; (b) the person challenging the act must have the standing to question the
validity of the subject act or issuance; (c) the question of constitutionality must be raised
at the earliest opportunity; and (d) the issue of constitutionality must be the very lis
mota of the case. Of these requisites, case law states that the first two are the most
important. (Belgica, et al. v. Exec. Sec. Paquito N. Ochoa, et al., G.R. No. 208566,
710 SCRA 1, 89, Nov. 19, 2013, En Banc [Perlas-Bernabe])
50
Inc. v. Santiago, 556 Phil. 83, 91-92 [2001]) The rule is that courts do not sit to
adjudicate mere academic questions to satisfy scholarly interest, however intellectually
challenging. The controversy must be justiciable – definite and concrete, touching on
the legal relations of parties having adverse legal interests. In other words, the
pleadings must show an active antagonistic assertion of a legal right, on the one hand,
and a denial thereof, on the other; that is, it must concern a real, tangible and not
merely a theoretical question or issue. There ought to be an actual and substantial
controversy admitting of specific relief through a decree conclusive in nature, as
distinguished from an opinion advising what the law would be upon a hypothetical state
of facts. (Information Technology Foundation of the Philippines v. Commission on
Elections, 499 Phil. 281, 304-305 [2005])
Even on the assumption of mootness, jurisprudence dictates that “the „moot and
academic‟ principle is not a magical formula that can automatically dissuade the Court
in resolving a case.” The Court will decide cases, otherwise moot, if first, there is a
grave violation of the Constitution; second, the exceptional character of the situation
and the paramount public interest is involved; third, when the constitutional issue raised
requires formulation of controlling principles to guide the bench, the bar, and the public;
and fourth, the case is capable of repetition yet evading review. (Belgica, et al. v.
Exec. Sec. Paquito N. Ochoa, et al., G.R. No. 208566, 710 SCRA 1, 93, Nov. 19,
2013, En Banc [Perlas-Bernabe])
51
Locus Standi
In the landmark case of Oposa v. Factoran, Jr., G.R. No. 101083, July 30, 1993,
224 SCRA 792, we recognized the “public right” of citizens to “a balanced and healthful
ecology which, for the first time in our constitutional history, is solemnly incorporated in
the fundamental law.” We declared that the right to a balanced and healthful ecology
need not be written in the Constitution for it is assumed, like other civil and political
rights guaranteed in the Bill of Rights, to exist from the inception of mankind and it is an
issue of transcendental importance with intergenerational implications. Such right
carries with it the correlative duty to refrain from impairing the environment. (Id. At 804-
805) (Most Rev. Pedro D. Arigo, et al. v. Scott H. Swift, et al., G.R. No. 206510,
September 16, 2014, En Banc [Villarama, Jr.])
Taxpayers‟ Suit
Taxpayers have been allowed to sue where there is a claim that public funds are
illegally disbursed or that public money is being deflected to any improper purpose, or
that public funds are wasted through the enforcement of an invalid or unconstitutional
law. (Saturnino C. Ocampo, et al. v. Rear Admiral Ernesto C. Enriquez, et al., G.R.
No. 225973, November 8, 2016, En Banc [Peralta])
52
As concerned citizens, petitioners are also required to substantiate that the
issues are of transcendental significance, or of paramount public interest. In cases
involving such issues, the imminence and clarity of the threat to fundamental
constitutional rights outweigh the necessity for prudence. (Saturnino C. Ocampo, et al.
v. Rear Admiral Ernesto C. Enriquez, et al., G.R. No. 225973, November 8, 2016, En
Banc [Peralta])
In the absence of a clear showing of any direct injury to their person or the
institution to which they belong, their standing as members of the Congress cannot be
upheld. (Saturnino C. Ocampo, et al. v. Rear Admiral Ernesto C. Enriquez, et al.,
G.R. No. 225973, November 8, 2016, En Banc [Peralta])
Facial Challenge
James M. Imbong, et al. v. Hon. Paquito N. Ochoa, Jr., et al., (GR No. 204819, April
8, 2014, En Banc [Mendoza])
In this jurisdiction, the application of doctrines originating from the U.S. has been
generally maintained, albeit with some modifications. While this Court has withheld the
application of facial challenges to strictly penal statutes (Romualdez v. Commission on
Elections, 576 Phil. 357 [2008]; Romualdez v. Sandiganbayan, 479 Phil. 265 [2004];
Estradfa v. Sandiganbayan, 421 Phil. 290 [2001]), it has expanded its scope to cover
statutes not only regulating free speech, but also those involving religious freedom,
and other fundamental rights(Resolution, Romualdez v. Commission on Elections,
594 Phil. 305, 316 [2008]). The underlying reason for this modification is simple. For
unlike its counterpart in the U.S., this Court, under its expanded jurisdiction, is
mandated by the Fundamental Law not only to settle actual controversies involving
rights which are legally demandable and enforceable, but also to determine whether
53
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government.
Verily, the framers of Our Constitution envisioned a proactive Judiciary, ever vigilant
with its duty to maintain the supremacy of the Constitution.
Consequently, considering that the foregoing petitions have seriously alleged that
the constitutional human rights to life, speech and religion and other fundamental rights
mentioned above have been violated by the assailed legislation, the Court has authority
to take cognizance of these kindred petitions and to determine if the RH (Reproductive
Health) Law can indeed pass constitutional scrutiny. To dismiss these petitions on the
simple expedient that there exist no actual case or controversy, would diminish this
Court as a reactive branch of government, acting only when the Fundamental Law has
been transgressed, to the detriment of the Filipino people.
Jose Jesus M. Disini, Jr., et al. v. The Secretary of Justice, et al., G.R. No,. 203335,
Feb. 11, 2014, En Banc (Abad)
When a penal statute encroaches upon the freedom of speech, a facial challenge
grounded on the void-for-vagueness doctrine is acceptable. The inapplicability of the
doctrine must be carefully delineated. As Justice Antonio T. Carpio explained in his
dissent in Romualdez v. Commission on Elections, “we must view these statements of
the Court on the inapplicability of the overbreadth and vagueness doctrines to penal
statutes as appropriate only insofar as these doctrines are used to mount “facial”
challenges to penal statutes not involving free speech.”
In addition, a statute or act suffers from the defect of vagueness when it lacks
comprehensible standards that men of common intelligence must necessarily guess at
its meaning and differ as to its application. The overbreadth doctrine, meanwhile,
decrees that a governmental purpose to control or prevent activities constitutionally
subject to state regulations may not be achieved by means which sweep unnecessarily
broadly and thereby invade the area of protected freedoms. Distinguished from an as-
applied challenge which considers only extant facts affecting real litigants, a facial
invalidation is an examination of the entire law, pinpointing its flaws and defects, not
only on the basis of its actual operation to the parties, but also on the assumption or
prediction that its very existence may cause others not before the court to refrain from
constitutionally protected speech or activities.
The rule established in our jurisdiction is, only statutes on free speech, religious
freedom, and other fundamental rights may be facially challenged. Under no case may
ordinary penal statutes be subjected to a facial challenge. Criminal statutes have
general in terrorem effect resulting from their very existence, and, if facial challenge is
allowed for this reason alone, the State may well be prevented from enacting laws
against socially harmful conduct. In the area of criminal law, the law cannot take
chances as in the area of free speech.
Xxx
Utterances not elemental but inevitably incidental to the doing of the criminal
conduct alter neither the intent of the law to punish socially harmful conduct nor the
essence of the whole act as conduct and not free speech. It is true that the agreements
and course of conduct were in most instances brought about through speaking or
writing. But it has never been deemed an abridgement of freedom of speech or press to
make a course of conduct illegal merely because that conduct was, in part, initiated,
evidenced, or carried out by means of language, either spoken, written, or printed.
Such an expansive interpretation of the constitutional guarantees of speech and press
would make it practically impossible ever to enforce laws against agreements in
restraint of trade as well as many other agreements and conspiracies deemed injurious
to society.
Xxx
55
In In Re: Petition for Recognition of the Exemption of the Government Service
Insurance System from Payment of Legal Fees, The Court ruled that the provision in the
Charter of the GSIS, i.e., Section 39 of Republic Act No. 8291, which exempts it from
“all taxes, assessments, fees, charges or duties of all kinds,” cannot operate to exempt
it from the payment of legal fees. This was because, unlike the 1935 and 1973
Constitutions, which empowered Congress to repeal, alter or supplement the rules of
the Supreme Court concerning pleading, practice and procedure, the 1987 Constitution
removed this power from Congress. Hence, the Supreme Court now has the sole
authority to promulgate rules concerning pleading, practice and procedure in all
courts.(GSIS v. Heirs of Fernando F. Caballero, G.R. No. 158090, 632 SCRA 5, 14-
15, Oct. 4, 2010, 2nd Div. [Peralta])
CONSTITUTIONAL LAW
Police Power
The Constitution expressly provides in Article III, Section 9 that “private property
shall not be taken for public use without just compensation.” The provision is the most
important protection of property rights in the Constitution. This is a restriction on the
general power of the government to take property. The constitutional provision is about
ensuring that the government does not confiscate the property of some to give it to
others. In part too, it is about loss spreading. If the government takes away a person‟s
property to benefit society, the society should pay. The principal purpose of the
guarantee is “to bar the Government from forcing some people alone to bear public
burdens which, in all fairness and justice, should be borne by the public as a
whole.”(City of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005; cited in
Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al.,
G.R. No. 189185, August 16, 2016, En Banc [Bersamin])
The Two (2) Types of “Taking” under the Power of Eminent Domain
There are two different types of taking that can be identified. A “possessory”
taking occurs when the government confiscates or physically occupies property. A
“regulatory” taking occurs when the government‟s regulation leaves no reasonable
economically viable use of the property. (City of Manila v. Laguio, Jr., G.R. No.
118127, April 12, 2005)
56
The establishment of the buffer zone is required for the purpose of
minimizing the effects of aerial spraying within and near the plantations.
Although Section 3(e) of the ordinance requires the planting of diversified trees
within the identified buffer zone, the requirement cannot be construed and
deemed as confiscatoy requiring payment of just compensation. A landowner
may only be entitled to compensation if the taking amounts to a permanent denial
of all economically beneficial or productive uses of the land. The respondents
cannot be said to be permanently and completely deprived of their landholdings
because they can still cultivate or make other productive uses of the areas to be
identified as the buffer zones.
Section 1 of the Bill of Rights lays down what is known as the “due process
clause” of the Constitution.
In order to fall within the aegis of this provision, two conditions must concur,
namely, that there is a deprivation and that such deprivation is done without proper
observance of due process. When one speaks of due process of law, however, a
distinction must be made between matters of procedure and matters of substance. In
essence, procedural due process “refers to the method or manner by which the law is
enforced,” while substantive due process “requires that the law itself, not merely the
procedures by which the law would be enforced, is fair, reasonable, and just.” (De
Leon, Textbook on the Philippine Constitution, 1991, p. 81)(Corona v. United Harbor
Pilots Association of the Phils., 283 SCRA 31, Dec. 12, 1997 [Romero])
The due process clauses in the American and Philippine Constitutions are not
only worded in exactly identical language and terminology, but more importantly, they
are alike in what their respective Supreme Courts have expounded as the spirit with
which the provisions are informed and impressed, the elasticity in their interpretation,
their dynamic and resilient character which make them capable of meeting every
modern problem, and their having been designed from earliest time to the present to
meet the exigencies of an undefined and expanding future. The requirements of due
process are interpreted in both, the United States and the Philippines as not denying to
the law the capacity for progress and improvement. Toward this effect and in order to
avoid the confines of a legal straitjacket, the courts instead prefer to have the meaning
of the due process clause “generally ascertained by the process of inclusion and
exclusion in the course of the decisions of cases as they arise (Twining v. New Jersey,
211 U.S. 78). Capsulized, it refers to “the embodiment of the sporting idea of fair play”
(Ermita-Malate Hotel and Motel Owner‟s Association v. City Mayor of Manila, 20 SCRA
849 [1967]). It relates to certain immutable principles of justice which inhere in the very
idea of free government (Holden v. Hardy, 169 U.S. 366).
True to the mandate of the due process clause, the basic rights of notice and
hearing pervade not only in criminal and civil proceedings, but in administrative
proceedings as well. Non-observance of these rights will invalidate the proceedings.
Individuals are entitled to be notified of any pending case affecting their interests, and
upon notice, they may claim the right to appear therein and present their side and to
refute the position of the opposing parties (Cruz, Philippine Administrative Law, 1996
ed., p. 64). (Secretary of Justice v. Lantion, 322 SCRA 160, 186-188, Jan. 18, 2000,
En Banc [Melo])
1. In proceedings where there is an urgent need for immediate action, like the
summary abatement of a nuisance per se (Article 704, Civil Code), the
preventive suspension of a public servant facing administrative charges
(Section 63, Local Government Code, B.P. Blg. 337), the padlocking of filthy
restaurants or theaters showing obscene movies or like establishments which
are immediate threats to public health and decency, and the cancellation of a
passport of a person sought for criminal prosecution;
3. Where the twin rights have previously been offered but the right to exercise
them had not been claimed. (Secretary of Justice v. Lantion, 322 SCRA
160, 186-188, Jan. 18, 2000, En Banc [Melo])
However, for this to be validly invoked, the act or law must be utterly vague on its
face that it cannot be clarified either by a saving clause or by statutory construction.
58
Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al.,
G.R. No. 189185, August 16, 2016, En Banc (Bersamin)
Held:
Xxx
He may be given copies of those documents once the petition for his extradition
is filed in the RTC. This is but a “soft restraint” on his right to due process at that stage.
There is no denial of due process for as long as fundamental fairness is assured a
party.
The constitutional right to equal protection requires that all persons or things
similarly situated should be treated alike, both as to rights conferred and responsibilities
imposed. It requires public bodies and institutions to treat similarly situated individuals
in a similar manner.The guarantee of equal protection secures every person within the
State‟s jurisdiction against intentional and arbitrary discrimination, whether occasioned
59
by the express terms of a statute or by its improper execution through the State‟sduly
constituted authorities. The concept of equal justice under the law demands that the
State governs impartially and not to draw distinctions between individuals solely on
differences that are irrelevant to the legitimate governmental objective.
The Three (3) Levels of Scrutiny to Determine the Propriety of the Classification
under the Equal Protection Clause
The rational basis scrutiny (also known as the rational relation test or rational
basis test) demands that the classification reasonably relate to the legislative purpose.
The rational basis test often applies in cases involving economics or social welfare, or to
any other case not involving a suspect class.
60
In Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association,
Inc., et al., (G.R. No. 189185, August 16, 2016, En Banc [Bersamin]), the Court,
applying the rational basis test, ruled that the ordinance of Davao City prohibiting aerial
spraying in all agricultural entities therein as the practice produces pesticide drift
causing inconvenience and harm to the residents and degrades the environment,
violates the equal protection clause, hence, should be declared unconstitutional. The
Court Held:
The occurrence of pesticide drift is not limited to aerial spraying but results
from the conduct of any mode of pesticide application. Even manual spraying or
truck-mounted boom spraying produces drift that may bring about the same
inconvenience, discomfort and alleged health risks to the community and to the
environment. A ban against aerial spraying does not weed out the harm that the
ordinance seeks to achieve. In the process, the ordinance suffers from being
“underinclusive” because the classification does not include all individuals tainted
with the same mischief that the law seeks to eliminate. A classification that is
drastically underinclusive with respect to the purpose or end appears as an
irrational means to the legislative end because it poorly serves the intended
purpose of the law.
Xxx
Aside from its being underinclusive, the assailed ordinance also tends to
be “overinclusive” because its impending implementation will affect groups that
have no relation to the accomplishment of the legislative purpose. Its
implementation will unnecessarily impose a burden on a wider range of
individuals than those included in the intended class based on the purpose of the
law.
It can be noted that the imposition of the ban is too broad because the
ordinance applies irrespective of the substance to be aerially applied and
irrespective of the agricultural activity to be conducted. The respondents admit
that they aerially treat their plantations not only with pesticides but also vitamins
and other substances. The imposition of the banagainst aerial sprayingof
substances other than fungicides and regardless of the agricultural activity being
performed becomes unreasonable inasmuch as it patently bears no relation to
the purported inconvenience, discomfort, health risk and environmental danger
which the ordinance seeks to address. The burden now will become more
onerous to various entities, including the respondents and even others with no
connection whatsoever to the intended purpose of the ordinance.”
Xxx
Xxx
Abdula v. Guiani
62
In a criminal proceeding, there are two (2) determinations of probable cause, i.e.,
one is made by the prosecutor during preliminary investigation for the purpose of filing
the criminal information in court; and the other is made by the judge for the purpose of
issuing a warrant of arrest, or of a search warrant.
The determination of probable cause for the purpose of filing the criminal
information in court is an executive function. It is a function that belongs to the
prosecutor, an officer under the Department of Justice, a department under the
executive branch. On the other hand, the determination of probable cause for the
purpose of issuing a warrant of arrest, or even that of a search warrant, is a judicial
function, because under Section 2 of the Bill of Rights of the Constitution, only a judge
may issue a warrant of arrest or of a search warrant. For this reason, the judge is not
bound by the determination of probable cause by the prosecutor. In fact, he should not
rely solely on the finding of probable cause by the prosecutor because he is mandated
by the Constitution to determine probable cause personally. He cannot abdicate the
performance of that function in favor of the prosecutor if he wanted to remain faithful to
the Constitution.
Prior notice or hearing is not required before a judge issues a warrant of arrest of
an extraditee once the petition for extradition is filed in court on two (2) basis, i.e.,
statutory (Sec. 6, P.D. No. 1069); and constitutional (Sec. 2, Art. III of the Bill of Rights).
On statutory basis
Section 6, P.D. No. 1069 (Extradition Law) provides that the moment the petition
for extradition is filed in the RTC, the judge shall cause the immediate issuance of a
warrant of arrest. Hearing entails sending of notices to opposing parties, and receiving
facts and arguments from them. Arrest subsequent to a hearing can no longer be
considered “immediate.” The law could not have intended the use of the word
“immediate” a superfluity.
On constitutional basis
Even Section 2, Article III of the Bill of Rights does not require notice or hearing
before a judge issues a warrant of arrest. On the contrary, what the Constitution
provides is “after examination under oath or affirmation of the complainant (not of the
accused) and the witnesses he may produce.”
Search Incidental to a Lawful Arrest (Section 13, Rule 126, Rules of Court)
This is the most common among the instances of valid warrantless searches.
The object of this kind of warrantless search is to obtain object or effect of a crime, like
the stolen wallet or the knife used in hold-up.
The three (3) important features of this kind of warrantless search are:
1. In this kind if warrantless search, the arrest always precedes the search; the
process cannot be reversed;
63
2. The precedent arrest must always be lawful because, if the precedent arrest
is unlawful, the subsequent search, although it may have yielded positive
results, may never validate the unlawful arrest that preceded it; and
3. The search must be limited or confined only to the immediate vicinity of the
place of the arrest. It may not be extended beyond that.
Valmonte v. De Villa
The Mandatory Drug Testing under R.A. No. 9165 (The Comprehensive
Dangerous Drugs Act) does not constitute unreasonable search prohibited by the
Constitution. It falls under the category of an administrative search. In administrative
searches, the strict probable cause requirement is not applied.
When one is at the nation‟s airport and wanted to travel by air, he has no
reasonable expectation of privacy and can be subject to warrantless search. This is in
view of increased concern over airplane hijacking and terrorism.
In the later case of People v. Susan Canton, the SC held that this is now another
instance of valid warrantless search – warrantless searches at airports.
People v. Doria
The requisites for the “plain view” doctrine to be validly invoked are:
1. The law enforcement officer must have a valid justification for an intrusion, or
is in a position where he can view a particular area;
2. The discovery of the evidence in plain view must be inadvertent; and
3. It is immediately apparent to him that the thing he sees is object of a crime,
contraband, or subject to seizure.
It is clear that if the object is inside a closed container, “plain view” maynot be
invoked. However, even if it inside a closed container but if due to the configuration of
the container, or due to its transparency, it can still be seen from the outside what is
inside, “plain view” may still be invoked.
Indeed, if we extend our judicial gaze we will find that the right of privacy is
recognized and enshrined in several provisions of our Constitution. (Morfe v. Mutuc, 22
SCRA 424, 444 [1968]; Cortes, The Constitutional Foundations of Privacy, p. 18
[1970]). It is expressly recognized in Section 3(1) of the Bill of Rights x x x. Other
facets of the right to privacy are protected in various provisions of the Bill of Rights (viz:
Secs. 1, 2, 6, 8, and 17. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno])
What are the zones of privacy recognized and protected in our laws?
The Civil Code provides that “[e]very person shall respect the dignity, personality,
privacy and peace of mind of his neighbors and other persons” and punishes as
actionable torts several acts by a person of meddling and prying into the privacy of
another. It also holds a public officer or employee or any private individual liable for
damages for any violation of the rights and liberties of another person, and recognizes
the privacy of letters and other private communications. The Revised Penal Code
makes a crime the violation of secrets by an officer, the revelation of trade and industrial
secrets, and trespass to dwelling. Invasion of privacy is an offense in special laws like
the Anti-Wiretapping Law (R.A. 4200), the Secrecy of Bank Deposits (R.A. 1405) and
the Intellectual Property Code (R.A. 8293). The Rules of Court on privileged
communication likewise recognize the privacy of certain information (Section 24, Rule
130[c], Revised Rules on Evidence). (Ople v. Torres, G.R. No. 127685, July 23, 1998
[Puno])
Jose Jesus M. Disini, Jr., et al. v. The Secretary of Justice, et al., G.R. No,. 203335,
Feb. 11, 2014, En Banc (Abad)
The right to privacy, or the right to be let alone, was institutionalized in the 1987
Constitution as a facet of the right protected by the guarantee against unreasonable
searches and seizures. But the Court acknowledged its existence as early as 1968 in
Morfe v. Mutuc, it ruled that the right to privacy exists independently of its identification
with liberty; it is in itself fully deserving of constitutional protection.
Relevant to any discussion of the right to privacy is the concept known as the
“Zones of Privacy.” The Court explained in “In the Matter of the Petition for Issuance of
Writ of Habeas Corpus of Sabio v. Senator Gordon” the relevance of these zones to the
right to privacy:
Zones of privacy are recognized and protected in our laws. Within these
zones, any form of intrusion is impermissible unless excused by law and in
accordance with customary legal process. The meticulous regard we accord to
these zones arises not only from our conviction that the right to privacy is a
65
“constitutional right” and “the right most valued by civilized men,” but also from
our adherence to the Universal Declaration of Human Rights which mandates
that, “no one shall be subjected to arbitrary interference with his privacy” and
“everyone has the right to the protection of the law against such interference or
attacks.”
Two constitutional guarantees create these zones of privacy: (a) the right against
unreasonable searches and seizures, which is the basis of the right to be let alone, and
(b) the right to privacy of communication and correspondence.
In assessing the challenge that the State has impermissibly intruded into these
zones of privacy, a court must determine whether a person has exhibited a reasonable
expectation of privacy and, if so, whether that expectation has been violated by
unreasonable government intrusion.
Freedom of Expression
Content-neutral restrictions, on the other hand, like Sec. 11(b) of R.A. No. 6646,
which prohibits the sale or donation of print space and air time to political candidates
during the campaign period, are not concerned with the content of the speech. These
regulations need only a substantial governmental interest to support them. A deferential
standard of review will suffice to test their validity. The clear-and-present danger rule is
inappropriate as a test for determining the constitutional validity of laws, like Sec. 11(b)
of R.A. No. 6646, which are not concerned with the content of political ads but only with
their incidents. To apply the clear-and-present danger test to such regulatory measures
would be like using a sledgehammer to drive a nail when a regular hammer is all that is
needed.
The test for this difference in the level of justification for the restriction of speech
is that content-based restrictions distort public debate, have improper motivation, and
are usually imposed because of fear of how people will react to a particular speech. No
such reasons underlie content-neutral regulations, like regulation of time, place and
manner of holding public assemblies under B.P. Blg. 880, the Public Assembly Act of
1985. (Osmena v. COMELEC, 288 SCRA 447, March 31, 1998 [Mendoza])
What is the most influential test for distinguishing content-based from content-
neutral regulations?
This is so far the most influential test for distinguishing content-based from
content-neutral regulations and is said to have “become canonical in the review of such
laws.” (G. Gunther & K. Sullivan, Constitutional Law 1217 [13th ed. 1997]). It is
noteworthy that the O‟ Brien test has been applied by this Court in at least two cases
(Adiong v. Comelec, 207 SCRA 712 [1992]; Osmena v. Comelec, supra.).
This case defines the extent that our people may shape the debates during
elections. It is significant and of first impression. We are asked to decide whether the
Commission on Elections (COMELEC) has the competence to limit expressions made
by the citizens – who are not candidates – during elections.
Before us is a special civil action for certiorari and prohibition under Rule 65 of
the Rules of Court seeking to nullify COMELEC‟s Notice to Remove Campaign
Materials.
SUBSTANTIVE ISSUES
67
X x x We held that the “evil sought to be prevented by this provision is the
possibility that a franchise holder may favor or give any undue advantage to a candidate
in terms of advertising space or radio or television time.” (Sanidad v. COMELEC, 260
Phil. 565 [1990]) This Court found that “[m]edia practitioners exercising their freedom of
expression during plebiscite periods are neither the franchise holders nor the
candidates[,]” thus, their right to expression during this period may not be regulated by
COMELEC.
Similar to the media, petitioners in the case at bar are neither franchise holders
nor candidates.
Based on the enumeration made on acts that may be penalized, it will be inferred
that this provision only affects candidates.
Xxx
Section 3 of Republic Act No. 9006 on “Lawful Election Propaganda” also states
that these are “allowed for all registered political parties, national, regional, sectoral
parties or organizations participating under the party-list elections and for all bona fide
candidates seeking national and local elective positions subject to the limitation on
authorized expenses of candidates and political parties. . .” Section 6 of COMELEC
Resolution No. 9615 provides for a similar wording.
The tarpaulin was not paid for by any candidate or political party. There was no
allegation that petitioners coordinated with any of the persons named in the tarpaulin
regarding its posting. On the other hand, petitioners posted the tarpaulin as part of their
advocacy against the RH Law.
Xxx
68
In this case, the tarpaulin contains speech on a matter of public concern, that is,
a statement of either appreciation or criticism on votes made in the passing of the RH
law. Thus, petitioners invoke their right to freedom of expression.
No law. . .
While it is true that the present petition assails not a law but an opinion by the
COMELEC Law Department, this Court has applied Article III, Section 4 of the
Constitution even to governmental acts.
Our Constitution has also explicitly included the freedom of expression, separate
and in addition to the freedom of speech and of the press provided in the US
Constitution. The word “expression” was added in the 1987 Constitution x x x for having
a wider scope x x x.
Xxx
Even before freedom “of expression” was included in Article III, Section 4 of the
present Constitution, this court has applied its precedent version to expressions other
than verbal utterances.
Xxx
But this caricature, though not agreeable to some, is still protected speech.
Xxx
Some may have thought that there should be more room to consider being more
broad-minded and non-judgmental. Some may have expected that the authors would
give more space to practice forgiveness and humility.
Freedom for the thought we can disagree with can be wielded not only by those
in the minority. This can often be expressed by dominant institutions, even religious
70
ones. That they made their point dramatically and in a large way does not necessarily
mean that their statements are true, or that they have basis, or that they have been
expressed in good taste.
What is involved in this case is the most sacred of speech forms: expression by
the electorate that tends to rouse the public to debate contemporary issues. This is not
speech by candidates or political parties to entice votes. It is a portion of the electorate
telling candidates the conditions for their election. It is the substantive content of the
right to suffrage.
Freedom of Assembly
The first point to mark is that the right to peaceably assemble and petition for
redress of grievances is, together with freedom of speech, of expression, and of the
press, a right that enjoys primacy in the realm of constitutional protection. For these
rights constitute the very basis of a functional democratic polity, without which all the
other rights would be meaningless and unprotected. (BAYAN, et al. v. Ermita, et al.,
G.R. No. 169838, April 25, 2006, En Banc [Azcuna])
The definition herein contained shall not include picketing and other concerted
action in strike areas by workers and employees resulting from a labor dispute as
defined by the Labor Code, its implementing rules and regulations, and by the Batas
Pambansa Bilang 227. (Section 3[a], B.P. Blg. 880)
A written permit shall be required for any person or persons to organize and hold
a public assembly in a public place. However, no permit shall be required if the public
assembly shall be done or made in a freedom park duly established by law or ordinance
or in a private property, in which case only the consent of the owner or the one entitled
to its legal possession is required, or in the campus of a government–owned and
operated educational institution which shall be subject to the rules and regulations of
said educational institution. Political meetings or rallies held during any election
campaign period as provided for by law are not covered by this Act. (Section 4, B.P.
Blg. 880)
Freedom Parks
Every city and municipality in the country shall within six months after the
effectivity of this Act establish or designate at least one suitable “freedom park” or mall
in their respective jurisdictions which, as far as practicable, shall be centrally located
within the poblacion where demonstrations and meetings may be held at any time
without the need of any prior permit. (Section 5, B.P. Blg. 880)
(a) It shall be the duty of the mayor or any official acting in his behalf to issue or
grant a permit unless there is clear and convincing evidence that the public
assembly will create a clear and present danger to public order, public safety,
public convenience, public morals or public health.
(b) The mayor or any official acting in his behalf shall act on the application within
two (2) working days from the date the application was filed, failing which, the
permit shall be deemed granted. Should for any reason the mayor or any
official acting in his behalf refuse to accept the application for a permit, said
application shall be posted by the applicant on the premises of the office of
the mayor and shall be deemed to have been filed.
(c) If the mayor is of the view that there is imminent and grave danger of a
substantive evil warranting the denial or modification of the permit, he shall
immediately inform the applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served on the applicant within
twenty-four hours.
72
(e) If the mayor or any official acting in his behalf denies the application or
modifies the terms thereof in his permit, the applicant may contest the
decision in an appropriate court of law.
Integrated Bar of the Philippines v. Hon. Mayor Jose “Lito” Atienza, G.R. No.
175241, 24 February 2010, 1st Div. (Carpio Morales)
The Integrated Bar of the Philippines (IBP) applied for a permit to rally at
Mendiola Bridge. However, then Manila Mayor Jose “Lito” Atienza issued a permit to
rally at Plaza Miranda instead.
Issue: Whether or not the appellate court erred in holding that the modification
of the venue in IBP‟s rally permit does not constitute grave abuse of discretion.
Held: Section 6(c) of the Public Assembly Act (BP 880) provides that “If the
mayor is of the view that there is imminent and grave danger of a substantive evil
warranting the denial or modification of the permit, he shall immediately inform the
applicant who must be heard on the matter.”
In modifying the permit outright, Atienza gravely abused his discretion when he
did not immediately inform the IBP who should have been heard first on the matter of
his perceived imminent and grave danger of a substantive evil that may warrant the
changing of the venue. Atienza failed to indicate how he had arrived at modifying the
terms of the permit against the standard of a clear and present danger test which x x x
is an indispensable condition to such modification. Nothing in the issued permit adverts
to an imminent and grave danger of a substantive evil, which “blank” denial or
modification would, when granted imprimatur as the appellate court would have it,
render illusory any judicial scrutiny thereof.
“Maximum tolerance” means the highest degree of restraint that the military,
police and other peace keeping authorities shall observe during a public assembly or in
the dispersal of the same. (Section 3[c], B.P. Blg. 880)
It is very clear that B.P. No. 880 is not an absolute ban of public assemblies but a
restriction that simply regulates the time, place and manner of the assemblies. This
73
was adverted to in Osmena v. Comelec (G.R. No. 132231, March 31, 1998, 288 SCRA
447), where the Court referred to it as a “content-neutral” regulation of the time, place,
and manner of holding public assemblies (Ibid, p. 478).
A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all
kinds of public assemblies (except picketing and other concerted action in strike areas
by workers and employees resulting from a labor dispute, which are governed by the
Labor Code and other labor laws, political meeting or rallies held during election
campaign period, which are governed by the Election Code and other election related
laws, and public assemblies in the campus of a government-owned and operated
educational institution, which shall be subject to the rules and regulations of said
educational institution [Sec. 3(a) and Sec. 4 of B.P. No. 880]) that would use public
places. The reference to “lawful cause” does not make it content-based because
assemblies really have to be for lawful causes, otherwise they would not be “peaceable”
and entitled to protection. Neither are the words “opinion,” “protesting” and “influencing”
in the definition of public assembly content-based, since they can refer to any subject.
The words “petitioning the government for redress of grievances” come from the
wording of the Constitution, so its use cannot be avoided. Finally, maximum tolerance
is for the protection and benefits of all rallyists and is independent of the content of the
expressions in the rally.
Furthermore, the permit can only be denied on the ground of clear and present
danger to public order, public safety, public convenience, public morals or public health.
This is a recognized exception to the exercise of the right even under the Universal
Declaration of Human Rights and the International Covenant on Civil and Political
Rights x x x. (BAYAN, et al. v. Ermita, et al., G.R. No. 169838, April 25, 2006, En
Banc [Azcuna])
The Court now comes to the matter of the CPR. As stated earlier, the Solicitor
General has conceded that the use of the term should now be discontinued, since it
does not mean anything other than the maximum tolerance policy set forth in B.P. No.
880. This is stated in the Affidavit of respondent Executive Secretary Eduardo Ermita,
submitted by the Solicitor General.
At any rate, the Court rules that in view of the maximum tolerance mandated by
B.P. No. 880, CPR serves no valid purpose if it means the same thing as maximum
tolerance and is illegal if it means something else. Accordingly, what is to be followed is
and should be that mandated by the law itself, namely, maximum tolerance.
In sum, this Court reiterates its basic policy of upholding the fundamental rights
of our people, especially freedom of expression and freedom of assembly.
For this reason, the so-called calibrated preemptive response policy has no place
in our legal firmament and must be struck down as a darkness that shrouds freedom. It
merely confuses our people and is used by some police agents to justify abuses. On
the other hand, B.P. No. 880 cannot be condemned as unconstitutional; it does not
curtail or unduly restrict freedoms; it merely regulates the use of public places as to the
74
time, place and manner of assemblies. Far from being insidious, “maximum tolerance”
is for the benefit of rallyists, not the government., The delegation to the mayors of the
power to issue rally “permits” is valid because it is subject to the constitutionally-sound
“clear and present danger” standard. (BAYAN, et al. v. Ermita, et al., G.R. No. 169838,
April 25, 2006, En Banc [Azcuna])
Freedom of Religion
Ang Ladlad-LGBT Party v. Commission on Elections, G.R. No. 190582, 618 SCRA
32, April 8, 2010, En Banc (Del Castillo)
The decision of the COMELEC not to allow the Ang Ladlad-LGBT Party to
participate in party-list elections because its members are “immoral,” citing verses from
the Bible and the Koran, was ruled by the SC to be tainted with grave abuse of
discretion and, therefore, nullified, as it violated the non-establishment clause of
freedom of religion. In effect, the COMELEC used religious standard in its decision by
using verses from the Bible and the Koran. The COMELEC, as a government agency,
is not supposed to be guided by religious standards in its decisions and actions.
Held:
What is a purely ecclesiastical affair to which the State can not meddle following
the Separation of Church and State Doctrine?
James M. Imbong, et al. v. Hon. Paquito N. Ochoa, Jr., et al., GR No. 204819, April
8, 2014, En Banc (Mendoza)
76
7) Section 17 and the corresponding provision in the RH-IRR regarding the
rendering of pro bono reproductive health service in so far as they affect the
conscientious objector in securing Philhealth accreditation; and
8) Section 3.01(a) and Section 3.01(j) of the RH-IRR, which added the qualifier
“primarily” in defining abortifacients and contraceptives, as they are ultra vires
and, therefore, null and void for contravening Section 4(a) of the RH Law and
violating Section 12, Article II of the Constitution.
The liberty of abode and of changing the same within the limits prescribed
by law shall not be impaired except upon lawful order of the court. Neither shall
the right to travel be impaired except in the interest of national security, public
safety, or public health, as may be provided by law. (Sec. 6, Art. III, 1987
Constitution)
OCA Circular No. 49-2003 does not restrict but merely regulates, by providing
guidelines to be complied by judges and court personnel, before they can go on leave to
travel abroad. To “restrict” is to restrain or prohibit a person from doing something; to
“regulate” is to govern or direct according to rule. To ensure management of court
dockets and to avoid disruption in the administration of justice, OCA Circular No. 49-
2003 requires a judge who wishes to travel abroad to submit, together with his
application for leave of absence duly recommended for approval by his Executive
Judge, a certification from the Statistics Division, Court Management Office of the OCA.
The said certification shall state the condition of his docket based on his Certificate of
Service for the month immediately preceding the date of his intended travel, that he has
decided and resolved all cases or incidents within three (3) months from date of
submission, pursuant to Section 15(1) and (2), Article VIII of the 1987 Constitution.
Thus, for traveling abroad without having been officially allowed by the Court,
Judge Macarine is guilty of violation of OCA Circular No. 49-2003. (Office of
Administrative Services–Office of the Court Administrator v. Judge Ignacio B.
Macarine, A.M. No. MTJ-10-1770, 18 July 2012, 2nd Div. [Brion])
Efraim C. Genuino, et al. v. Hon. Leila M. De Lima, etal., G.R. Nos. 199034, 199046
and 197930, April 17, 2018, En Banc (Reyes, Jr.)
77
Orders, Watchlist Ordersand Allow Departure Orders,” on the ground that it infringes on
the constitutional right to travel.
Xxx
The right to travel is part of the “liberty” of which a citizen cannot be deprived
without due process of law. It is part and parcel of the guarantee of freedom of
movement that the Constitution affords its citizen. X x x
Xxx
It is apparent, however, that the right to travel is not absolute. There are
constitutional, statutory and inherent limitations regulating the right to travel. Section 6
itself provides that the right to travel may be impaired only in the interest of national
security, public safety or public health, as may be provided by law. X x x
Clearly, under the provision, there are only three considerations that may permit
a restriction on the right to travel: national security, public safety or public health. As a
further requirement, there must be an explicit provision of statutory law or the Rules of
Court providing for the impairment. The requirement for a legislative enactment was
purposely added to prevent inordinate restraints on the person‟s right to travel by
administrative officials who may be tempted to wield authority under the guise of
national security, public safety or public health. This is in keeping with the principle that
ours is a government of laws and not of men and also with the canon that provisions of
law limiting the enjoyment of liberty should be construed against the government and in
favor of the individual.
It is well to remember that under the 1973 Constitution, the right to travel is
compounded with the liberty of abode in Section 5 thereof x x x.
It is clear from the foregoing that the liberty of abode may only be impaired by a
lawful order of the court and, on the one hand, the right to travel may only be impaired
78
by a law that concerns national security, public safety of public health. Therefore, when
the exigencies of times call for a limitation on the right to travel, the Congress must
respond to the need by explicitly providing for the restriction in a law. This is in
deference to the primacy of the right to travel, being a constitutionally-protected right
and not simply a statutory right, that it can only be curtailed by a legislative enactment.
Xxx
Xxx
Consistent with the foregoing, there must be an enabling law from which DOJ
Circular No. 41 must derive its life. Unfortunately, all of the supposed statutory
authorities relied upon by the DOJ did not pass the completeness test and sufficient
standard test. The DOJ miserably failed to establish the existence of the enabling law
that will justify the issuance of the questioned circular.
That DOJ Circular No. 41 was intended to aid the department in realizing its
mandate only begs the question. The purpose, no matter how commendable, will not
obliterate the lack of authority of the DOJ to issue the said issuance. Surely, the DOJ
must have the best intentions in promulgating DOJ Circular No. 41, but the end will not
justify the means. To sacrifice individual liberties because of a perceived good is
disastrous to democracy. X x x.
79
In Valmonte v. Belmonte, Jr., the Court emphasized that the information sought
must be “matters of public concern,” access to which may be limited by law. Similarly,
the state policy of full public disclosure extends only to “transactions involving public
interest” and may also be “subject to reasonable conditions prescribed by law.” As to
the meanings of the terms “public interest” and “public concern,” the Court, in Legaspi v.
Civil Service Commission, elucidated:
Under Republic Act No. 6713, public officials and employees are mandated to
“provide information on their policies and procedures in clear and understandable
language, [and] ensure openness of information, public consultations and hearing
whenever appropriate x x x,” except when “otherwise provided by law or when required
by the public interest.” In particular, the law mandates free public access, at reasonable
hours, to the annual performance reports of offices and agencies of government and
government-owned or controlled corporations; and the statements of assets, liabilities
and financial disclosures of all public officials and employees.
In general, writings coming into the hands of public officers in connection with
their official functions must be accessible to the public, consistent with the policy of
transparency of governmental affairs. This principle is aimed at affording the people an
opportunity to determine whether those to whom they have entrusted the affairs of the
government are honestly, faithfully and competently performing their functions as public
servants. Undeniably, the essence of democracy lies in the free-flow of thought; but
thoughts and ideas must be well-informed so that the public would gain a better
perspective of vital issues confronting them and, thus, be able to criticize as well as
participate in the affairs of the government in a responsible, reasonable and effective
manner. Certainly, it is by ensuring an unfettered and uninhibited exchange of ideas
among a well-informed public that a government remains responsive to the changes
desired by the people. (Chavez v. PCGG, 299 SCRA 744, Dec. 9, 1998,
[Panganiban])
80
Recognized Restrictions to the Right of the People to Information on Matters of
Public Concern
4) Other confidential information. The Ethical Standards Act (R.A. No. 6713,
enacted on February 20, 1989) further prohibits public officials and
employees from using or divulging “confidential or classified information
officially known to them by reason of their office and not made available to the
public.” (Sec. 7[c], ibid.) Other acknowledged limitations to information
access include diplomatic correspondence, closed door Cabinet meetings
and executive sessions of either house of Congress, as well as the internal
deliberations of the Supreme Court.(Chavez v. PCGG, 299 SCRA 744, Dec.
9, 1998, [Panganiban])
Re: Request for Copy of 2008 Statement of Assets, Liabilities and Networth
(SALN) and Personal Data Sheet or Curriculum Vitae of the Justices of the
Supreme Court and Officers and Employees of the Judiciary (A.M. No. 09-8-6-SC,
June 13, 2012, En Banc [Mendoza])
81
Thus, while “public concern” like “public interest” eludes exact definition and has
been said to embrace a broad spectrum of subjects which the public may want to know,
either because such matters naturally arouse the interest of an ordinary citizen, the
Constitution itself, under Section 17, Article XI, has classified the information disclosed
in the SALN as a matter of public concern and interest. In other words, a “duty to
disclose” sprang from the “right to know.” Both of constitutional origin, the former is a
command while the latter is a permission. Hence, there is a duty on the part of
members of the government to disclose their SALNs to the public in the manner
provided by law.
In the case at bar, the Court notes the valid concerns of the other magistrates
regarding the possible illicit motives of some individuals in their requests for access to
such personal information and their publication. However, custodians of public
documents must not concern themselves with the motives, reasons and objects of the
persons seeking to access to the records. The moral or material injury which their
misuse might inflict on others is the requestor‟s responsibility and lookout. While public
officers in the custody or control of public records have the discretion to regulate the
manner in which records may be inspected, examined or copied by interested parties,
such discretion does not carry with it the authority to prohibit access, inspection,
examination, or copying of the records. After all, public office is a public trust.
R.A. No. 7438 (An Act Defining Certain Rights of Person Arrested, Detained or
Under Custodial Investigation as well as the Duties of the Arresting, Detaining
and Investigating Officers and Providing Penalties for Violations Thereof)
In bail application where the accused is charged with a capital offense, will it be
proper for the judge to grant bail without conducting hearing if the prosecutor
interposes no objection to such application?
Imposed in Baylon v. Sison was this mandatory duty to conduct a hearing despite
the prosecution's refusal to adduce evidence in opposition to the application to grant
and fix bail. (Joselito V. Narciso v. Flor Marie Sta. Romana-Cruz, G.R. No. 134504,
March 17, 2000, 3rd Div. [Panganiban])
82
Is a condition in an application for bail that accused be first arraigned before he
could be granted bail valid?
On the other hand, to condition the grant of bail to an accused on his arraignment
would be to place him in a position where he has to choose between (1) filing a motion
to quash and thus delay his release on bail because until his motion to quash can be
resolved, his arraignment cannot be held, and (2) foregoing the filing of a motion to
quash so that he can be arraigned at once and thereafter be released on bail. These
scenarios certainly undermine the accused‟s constitutional right not to be put on trial
except upon valid complaint or information sufficient to charge him with a crime and his
right to bail. (Lavides v. CA, 324 SCRA 321, Feb. 1, 2000, 2nd Div. [Mendoza])
The decision of the SC in Government of the USA v. Judge Purganan which says
that “no bail rule applies in extradition since bail is available only to one who had
arrested and detained for violation of Philippine criminal laws” was re-examined and,
after re-examination, the rule now is that an extraditee may be allowed to post bail
during the pendency of an extradition proceeding. However, for him to be allowed to
post bail, still he must prove that (1) once granted bail he will not be a flight risk or a
danger to the community; and (2) that there exists special, humanitarian and compelling
circumstances that will justify the grant of bail to him, by a clear and convincing
evidence.
The reason why the Purganan ruling was re-examined is because of the modern
trend in public international law where an individual person is no longer considered a
mere object of international law but rather as a subject thereof, and the primacy given to
human rights, among which is the right to liberty.
Juan Ponce Enrile v. Sandiganbayan (3rd Div.), G.R. No. 213847, August 18, 2015,
En Banc (Bersamin)
A close reading of the ruling of the SC in this case allowing former Senator Juan
Ponce Enrile to post bail although he was charged of plunder, a non-bailable offense,
was because of the Olalia ruling.
In this case, former Senator Enrile was shown not to be a flight risk or a danger
to the community (his voluntary surrender to the authorities and his record of respect for
court processes in earlier cases), and that there exist special, humanitarian and
83
compelling circumstances (his advanced age, fragile state of health and medical
predicament that will require the services of doctors of his choice) that will justify the
grant of bail to him. After all, the main purpose of bail is to assure the presence of an
accused during the trial of the case as required by the court. Thus, the Court held:
“In our view, his social and political standing and his having immediately
surrendered to the authorities upon his having been charged in court indicate that
the risk of his flight or escape from this jurisdiction is highly unlikely. His personal
disposition from the onset of his indictment for plunder, formal or otherwise, has
demonstrated his utter respect for the legal processes of this country. We also
do not ignore that at an earlier time many years ago when he had been charged
with rebellion with murder and multiple frustrated murder, he already evinced a
similar personal disposition of respect for the legal processes, and was granted
bail during the pendency of his trial because he was not seen as a flight risk.
With his solid reputation in both his public and his private lives, his long years of
public service, and history‟s judgment of him being at stake, he should be
granted bail.
“X x x
“Bail for the provisional liberty to the accused, regardless of the crime
charged, should be allowed independently of the merits of the charge, provided
his continued incarceration is clearly shown to be injurious to his health or to
endanger his life. Indeed, denying him bail despite imperiling hid health and life
would not serve the true objective of preventive incarceration during the trial.
“It is relevant to observe that granting provisional liberty to Enrile will then
enable him to have his medical condition be properly addressed and better
attended to by competent physicians in the hospitals of his choice. This will not
84
only aid in his adequate preparation of his defense but, more importantly, will
guarantee his appearance in court for the trial.
“On the other hand, to mark time in order to wait for the trial to finish
before a meaningful consideration of the application for bail can be had is to
defeat the objective of bail, which is to entitle the accused to provisional liberty
pending the trial. There may be circumstances decisive of the issue of bail x x x
that the courts can already consider in resolving the application for bail without
awaiting the trial to finish. The Court thus balances the scales of justice by
protecting the interest of the People through ensuring his personal appearance at
the trial, and at the same time realizing for him the guarantees of due process as
well as to be presumed innocent until proven guilty.”
In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that
the right against self-incrimination under Section 17, Article III of the 1987 Constitution
which is ordinarily available only in criminal prosecutions, extends to administrative
proceedings which possess a criminal or penal aspect, such as an administrative
investigation of a licensed physician who is charged with immorality, which could result
in his loss of the privilege to practice medicine if found guilty. The Court, citing the
earlier case of Cabal v. Kapunan (6 SCRA 1059 [1962]), pointed out that the revocation
of one‟s license as a medical practitioner, is an even greater deprivation than forfeiture
of property. (Secretary of Justice v. Lantion, 322 SCRA 160, 184, Jan. 18, 2000, En
Banc [Melo])
May the Right against Self-incrimination be validly invoked during Inquiries in Aid
of Legislation?
[I]t has been held that “a congressional committee‟s right to inquire is „subject to
all relevant limitations placed by the Constitution on governmental action,‟ including „the
relevant limitations of the Bill of Rights‟.”
85
One of the basic rights guaranteed by the Constitution to an individual is the right
against self-incrimination.(Bengzon, Jr. v. Senate Blue Ribbon Committee, 203
SCRA 767, Nov. 20, 1991, En Banc [Padilla])
What are the two types of immunity statutes? Which has broader scope of
protection?
Our immunity statutes are of American origin. In the United States, there are two
types of statutory immunity granted to a witness. They are the transactional immunity
and the use-and-derivative-use immunity. Transactional immunity is broader in the
scope of its protection. By its grant, a witness can no longer be prosecuted for any
offense whatsoever arising out of the act or transaction. In contrast, by the grant of use-
and-derivative-use immunity, a witness is only assured that his or her particular
testimony and evidence derived from it will not be used against him or her in a
subsequent prosecution.(Mapa, Jr. v. Sandiganbayan, 231 SCRA 783, 797-798, April
26, 1994, En Banc [Puno])
[W]e reject respondent court‟s ruling that the grant of section 5 immunity must be
strictly construed against the petitioners. It simplistically characterized the grant as a
special privilege, as if it was gifted by the government, ex gratia. In taking this posture,
it misread the raison d‟ etre and the long pedigree of the right against self-incrimination
vis-à-vis immunity statutes.
The days of inquisition brought about the most despicable abuses against human
rights. Not the least of these abuses is the expert use of coerced confessions to send
to the guillotine even the guiltless. To guard against the recurrence of this totalitarian
method, the right against self-incrimination was ensconced in the fundamental laws of
all civilized countries. Over the years, however, came the need to assist government in
its task of containing crime for peace and order is a necessary matrix of public welfare.
To accommodate the need, the right against self-incrimination was stripped of its
absoluteness. Immunity statutes in varying shapes were enacted which would allow
government to compel a witness to testify despite his plea of the right against self-
incrimination. To insulate these statutes from the virus of unconstitutionality, a witness
is given what has come to be known as transactional or a use-derivative-use immunity x
x x. Quite clearly, these immunity statutes are not a bonanza from government. Those
given the privilege of immunity paid a high price for it – the surrender of their precious
right to be silent. Our hierarchy of values demands that the right against self-
incrimination and the right to be silent should be accorded greater respect and
protection. Laws that tend to erode the force of these preeminent rights must
necessarily be given a liberal interpretation in favor of the individual. The government
has a right to solve crimes but it must do it, rightly. (Mapa, Jr. v. Sandiganbayan, 231
SCRA 783, 805-806, April 26, 1994, En Banc [Puno])
Elsewhere stated, where the offense charged are penalized either by different
sections of the same statute or by different statutes, the important inquiry relates to the
identity of offenses charged. The constitutional protection against double jeopardy is
available only where an identity is shown to exist between the earlier and the
subsequent offenses charged. The question of identity or lack of identity of offenses is
addressed by examining the essential elements of each of the two offenses charged, as
such elements are set out in the respective legislative definitions of the offenses
involved. (People v. Quijada, 259 SCRA 191, July 24, 1996)
(1) A first jeopardy must have attached prior to the second; (2) the first jeopardy
must have been validly terminated; (3) the second jeopardy must be for the same
offense, or the second offense includes or is necessarily included in the offense
charged in the first information, or is an attempt to commit the same or is a frustration
thereof.
Legal jeopardy attaches only: (1) upon a valid indictment; (b) before a competent
court; (c) after arraignment; (d) when a valid plea has been entered; and (e) the case
was dismissed or otherwise terminated without the express consent of the accused.
(Cuison v. CA, 289 SCRA 159, April 15, 1998 [Panganiban])
87
judicial trial. Essential to a bill of attainder are a specification of certain individuals or a
group of individuals, the imposition of a punishment, penal or otherwise, and the lack of
judicial trial. This last element, the total lack of court intervention in the finding of guilt
and the determination of the actual penalty to be imposed, is the most essential. P.D.
No. 1866 does not possess the elements of a bill of attainder. It does not seek to inflict
punishment without a judicial trial. Nowhere in the measure is there a finding of guilt
and an imposition of a corresponding punishment. What the decree does is to define
the offense and provide for the penalty that may be imposed, specifying the qualifying
circumstances that would aggravate the offense. There is no encroachment on the
power of the court to determine after due hearing whether the prosecution has proved
beyond reasonable doubt that the offense of illegal possession of firearms has been
committed and that the qualifying circumstances attached to it has been established
also beyond reasonable doubt as the Constitution and judicial precedents require.
(Misolas v. Panga, 181 SCRA 648, 659-660, Jan. 30, 1990, En Banc [Cortes])
What is an ex post facto law? Is R.A. No. 8249 an ex post facto law?
Ex post facto law, generally, prohibits retrospectivity of penal laws. R.A. 8249 is
not a penal law. It is a substantive law on jurisdiction which is not penal in character.
Penal laws arethose acts of the Legislature which prohibit certain acts and establish
penalties for their violations; or those that define crimes, treat of their nature, and
provide for their punishment. R.A. 7975, which amended P.D. 1606 as regards the
Sandiganbayan‟s jurisdiction, its mode of appeal and other procedural matters, has
been declared by the Court as not a penal law, but clearly a procedural statute, i.e., one
which prescribes rules of procedure by which courts applying laws of all kinds can
properly administer justice. Not being a penal law, the retroactive application of R.A.
8249 cannot be challenged as unconstitutional.
At any rate, R.A. 8249 has preserved the accused‟s right to appeal to the
Supreme Court to review questions of law. On the removal of the intermediate review
of facts, the Supreme Court still has the power of review to determine if the presumption
of innocence has been convincingly overcome. (Panfilo M. Lacson v. The Executive
Secretary, et. al., G.R. No. 128096, Jan. 20, 1999 [Martinez])
CITIZENSHIP
88
Citizenship is not a matter of convenience. It is a badge of identity that comes
with attendant civil and political rights accorded by the State to its citizens. It likewise
demands the concomitant duty to maintain allegiance to one‟s flag and country. (Casan
Macode Maquiling v. COMELEC, et al., G.R. No. 195649, April 16, 2013, En Banc
[Sereno, CJ])
There are two ways of acquiring citizenship: (1) by birth, and (2) by
naturalization. These ways of acquiring citizenship correspond to the two kinds of
citizens: the natural-born citizen, and the naturalized citizen. A person who at the time
of his birth is a citizen of a particular country, is a natural-born citizen thereof.
On the other hand, naturalized citizens are those who have become Filipino
citizens through naturalization, generally under Commonwealth Act No. 473, otherwise
known as the Revised Naturalization Law, which repealed the former Naturalization Law
(Act No. 2927), and by Republic Act No. 530. (Antonio Bengson III v. HRET, G.R. No.
142840, May 7, 2001, En Banc [Kapunan])
Natural-born Citizens
Natural-born citizens are those who are citizens of the Philippines from
birth without having to perform any act to acquire or perfect their Philippine
citizenship. Those who elect Philippine citizenship in accordance with paragraph
(3), Section 1 hereof shall be deemed natural-born citizens. (Section 2, Article
IV, 1987 Constitution)
In general, there are only two (2) kinds of Filipino citizens, i.e., natural-born and
naturalized. There is no third category. If one did not have to undergo the cumbersome
process of naturalization, it means that he is natural-born. (Antonio Bengson III v.
HRET, G.R. No. 142840, May 7, 2001, En Banc [Kapunan])
To deny full Filipino citizenship to all foundlings and render them stateless just
because there may be a theoretical chance that one among the thousands of these
foundlings might be the child of not just one, but two, foreigners is downright
discriminatory, irrational, and unjust. It just doesn‟t make any sense. Given the
89
statistical certainty 99.9% - that any child born in the Philippines would be a natural-born
citizen, a decision denying foundlings such status is effectively a denial of their
birthright. There is no reason why this Honorable Court should use an improbable
hypothetical to sacrifice the fundamental political rights of an entire class of human
beings. Your Honor, constitutional interpretation and the use of common sense are not
separate disciplines.
[T]he deliberations of the 1934 Constitutional Convention show that the framers
intended foundlings to be covered by the enumeration. X x x
Though the Rafols amendment was not carried out, it was not because there was
any objection to the notion that persons of “unknown parentage” are not citizens but
only because their number was not enough to merit specific mention. X x x
Domestic laws on adoption also support the principle that foundlings are
Filipinos. These laws do not provide that adoption confers citizenship upon the
adoptee. Rather, the adoptee must be a Filipino in the first place to be adopted. X x x
Foundlings are likewise citizens under international law. Under the 1987
Constitution, an international law can become part of the sphere of domestic law either
by transformation or incorporation. X x x
The principles found in two conventions, while yet ungratified by the Philippines,
are generally accepted principles of international law. The first is Article 14 of the 1930
Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws
under which a foundling is presumed to have the “nationality of the country of birth,” x x
x.
A foundling is, until the contrary is proved, presumed to have been born on the
territory of the State in which it was found.
90
The second is the principle that a foundling is presumed born of citizens of the
country where he is found, contained in Article 2 of the 1961 United Nations Convention
on the Reduction of Statelessness x x x.
Xxx
In sum, all of the international law conventions and instruments on the matter of
nationality of foundlings were designed to address the plight of a defenseless class
which suffers from a misfortune not of their making. We cannot be restrictive as to their
application if we are a country which calls itself civilized and a member of the
community of nations. X x x (Mary Grace Natividad S. Poe-Llamanzares v.
COMELEC, G R. No. 221697, March 8, 2016, En Banc [Perez])
There are three (3) ways by which Philippine citizenship may be reacquired,
namely: (1) by naturalization; (2) by repatriation; and (3) by direct act of Congress.
Citizens of the Philippines who marry aliens shall retain their citizenship,
unless by their act or omission they are deemed, under the law, to have
renounced it. (Section 4, Article IV, 1987 Constitution)
91
What is the main concern of Section 5, Article IV, 1987 Constitution, on
citizenship? Consequently, are persons with mere dual citizenship disqualified to
run for elective local positions under Section 40(d) of the Local Government
Code?
1) Those born of Filipino fathers and/or mothers in foreign countries which follow
the principle of jus soli;
2) Those born in the Philippines of Filipino mothers and alien fathers if by the
laws of their father‟s country such children are citizens of that country;
3) Those who marry aliens if by the laws of the latter‟s country the former are
considered citizens, unless by their act or omission they are deemed to have
renounced Philippine citizenship. (Mercado v. Manzano, G.R. No. 135083,
307 SCRA 630, May 26, 1999 [Mendoza])
Republic Act No. 9225 (The Citizenship Retention and Reacquisition Act of 2003)
Sometimes, this law has been referred to as the dual citizenship law.
The law applies to: (1) former natural-born citizens of the Philippines who have
already become citizens of a foreign country through naturalization; and (2) natural-born
citizens of the Philippines who may wish to become a citizen of a foreign country
through naturalization after the effectivity of this Act.
In both cases, they are given the opportunity to either reacquire (reacquisition) or
retain (retention) their Philippine citizenship. Thus, in effect, they will possess dual
citizenship.
Casan Macode Maquiling v. COMELEC, et al., G.R. No. 195649, April 16, 2013, En
Banc (Sereno, CJ)
92
When after renouncing his American citizenship upon his filing of certificate of
candidacy for mayor, it was established that he travelled several times to the US using
his American passport, that was an effective recantation of his renunciation of his
foreign citizenship. Thus, he reverted to his prior status as a person having dual
citizenship and, therefore, disqualified to run for mayor pursuant to Sec. 40 (d) of the
Local Government Code (R.A. No. 7061).
Held:
Those who retain or re-acquire Philippine citizenship under this Act shall
enjoy full civil and political rights and be subject to all attendant liabilities and
responsibilities under existing laws of the Philippines and the following
conditions:
(2) Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the Constitution and
existing laws and, at the time of the filing of the certificate of candidacy, make a
personal and sworn renunciation of any and all foreign citizenship before any
public officer authorized to administer an oath. X x x
Rommel Arnado took all the necessary steps to qualify to run for a public office.
He took the Oath of Allegiance and renounced his foreign citizenship. There is no
question that after performing these twin requirements required under Section 5(2) of
R.A. Act No. 9225 or the Citizenship Retention and Re-acquisition Act of 2003, he
became eligible to run for public office.
Indeed, Arnado took the Oath of Allegiance not just only once but twice. By
taking the Oath of Allegiance to the Republic, Arnado re-acquired his Philippine
citizenship. At the time, however, he likewise possessed American citizenship. Arnado
had therefore become a dual citizen.
However, this legal presumption does not operate permanently and is open to
attack when, after renouncing the foreign citizenship, the citizen performs positive acts
showing his continued possession of a foreign citizenship.
Arnado himself subjected the issue of his citizenship to attack when, after
renouncing his foreign citizenship, he continued to use his US passport to travel in and
out of the country. The pivotal question to determine is whether he was solely and
93
exclusively a Filipino citizen at the time he filed his certificate of candidacy, thereby
rendering him eligible to run for public office.
The renunciation of foreign citizenship is not a hollow oath that can simply be
professed at any time, only to be violated the next day. It requires an absolute and
perpetual renunciation of the foreign citizenship and a full divestment of all civil and
political rights granted by the foreign country which granted the citizenship.
Xxx
While the act of using a foreign passport is not one of the acts enumerated in
Commonwealth Act No. 63 constituting renunciation and loss of Philippine citizenship, it
is nevertheless an act which repudiates the very oath of renunciation required for a
former Filipino citizen who is also a citizen of another country to be qualified to run for a
local elective position.
Xxx
We agree with the COMELEC En Banc that such act of using a foreign passport
does not divest Arnado of his Filipino citizenship, which he acquired by repatriation.
However, by representing himself as an American citizen, Arnado voluntarily and
effectively reverted to his earlier status as a dual citizen. Such reversion was not
retroactive; it took place the instant Arnado represented himself as an American citizen
by using his US passport.
This act of using a foreign passport after renouncing one‟s foreign citizenship is
fatal to Arnado‟s bid for public office, as it effectively imposed on him a disqualification
to run for an elective local position.
By the time he filed his certificate of candidacy Arnado was a dual citizen
enjoying the rights and privileges of Filipino and American citizenships. He was
qualified to vote, but by express disqualification under Section 40(d) of the Local
Government Code, he was not qualified to run for a local elective position.
Xxx
The citizenship requirement for elective public office is a continuing one. It must
be possessed not just at the time of the renunciation of the foreign citizenship but
continuously. Any act which violates the oath of renunciation opens the citizenship
issue to attack.
94
We agree with the pronouncement of the COMELEC First Division that “Arnado‟s
act of continuously using his US passport effectively negated his Affidavit of
Renunciation.” This does not mean that he failed to comply with the twin requirements
under R.A. No. 9225, for he in fact did. It was after complying with the requirements
that he performed positive acts which effectively disqualified him from running for an
elective public office pursuant to Section 40(d) of the Local Government Code of 1991.
Xxx
Besides, Arnado‟s subsequent use of his Philippine passport does not correct the
fact that after he renounced his foreign citizenship and prior to filing his certificate of
candidacy, he used his US passport. In the same way that the use of his foreign
passport does not undo his Oath of Renunciation, his subsequent use of his Philippine
passport does not undo his earlier use of his US passport.
Xxx
We therefore hold that Arnado, by using his US passport after renouncing his
American citizenship, has recanted the same Oath of Renunciation he took. Section
40(d) of the Local Government Code applies to his situation. He is disqualified not only
from holding the public office but even from becoming a candidate in the May 2011
elections.
Naturalization
Naturalization signifies the act of formally adopting a foreigner into the political
body of a nation by clothing him or her with the privileges of a citizen. (Edison So v.
Republic of the Philippines, G.R. No. 170603, January 29, 2007, 3 rd Div., [Callejo,
Sr.])
Under current and existing laws, there are three ways by which an alien may
become a citizen by naturalization: (a) administrative naturalization pursuant to R.A. No.
9139; (b) judicial naturalization pursuant to C.A. No. 473, as amended; and (c)
legislative naturalization in the form of a law enacted by Congress bestowing Philippine
citizenship to an alien. (Edison So v. Republic of the Philippines, G.R. No. 170603,
January 29, 2007, 3rd Div., [Callejo, Sr.])
R.A. No. 9139 was enacted as a remedial measure intended to make the
process of acquiring Philippine citizenship less tedious, less technical and more
encouraging. It likewise addresses the concerns of degree holders who, by reason of
lack of citizenship requirement, cannot practice their profession, thus promoting “brain
gain” for the Philippines.
May All Aliens Avail of the Benefits of Administrative Naturalization under R.A.
No. 9139?
95
R.A. No. 9139 may be availed of only by native-born aliens who lived here in the
Philippines all their lives, who never saw any other country and all along thought that
they were Filipinos; who have demonstrated love and loyalty to the Philippines and
affinity to the customs and traditions of the Filipino people. To reiterate, the intention of
the legislature in enacting R.A. No. 9139 was to make the process of acquiring
Philippine citizenship less tedious, less technical and more encouraging which is
administrative rather than judicial in nature. What the legislature had in mind was
merely to prescribe another mode of acquiring Philippine citizenship which may be
availed of by native born aliens. The only implication is that, a native born alien has the
choice to apply for judicial or administrative naturalization, subject to the prescribed
qualifications and disqualifications. (Edison So v. Republic of the Philippines, G.R.
No. 170603, January 29, 2007, 3rd Div., [Callejo, Sr.]
ADMINISTRATIVE LAW
It is, however, important to stress that before there can even be a valid
administrative issuance, there must first be a showing that the delegation of power is
itself valid. It is valid only if there is a law that (a) is complete in itself, setting forth
therein the policy to be executed, carried out, or implemented by the delegate; and (b)
fixes a standard the limits of which are sufficiently determinate and determinable to
which the delegate must conform in the performance of his functions.(Efraim C.
Genuino, et al. v. Hon. Leila M. De Lima, et al., G.R. Nos. 199034, 199046 and
197930, April 17, 2018, En Banc [Reyes, Jr.])
Flores v. Drilon
The Office of the Ombudsman shall have disciplinary authority over all
elective and appointive officials of the Government and its subdivisions,
instrumentalities and agencies, including Members of the Cabinet, local
government, government-owned or controlled corporations and their subsidiaries,
except over officials who may be removed only by impeachment or over
Members of Congress, and the Judiciary. (Sec. 21, R.A. No. 6770)
No court shall hear any appeal or application for remedy against the
decision or findings of the Ombudsman, except the Supreme Court, on pure
question of law. (Sec. 14, R.A. No. 6770)
Caveat:
Xxx
a) appointing authority;
b) recommending authority;
c) chief of the bureau or office; and
d) person exercising immediate supervision over the appointee.
98
Clearly, there are four situations covered. In the last two mentioned situations, it
is immaterial who the appointing or recommending authority is. To constitute a violation
of the law, it suffices that an appointment is extended or issued in favor of a relative
within the third civil degree of consanguinity or affinity of the chief of the bureau or
office, or the person exercising immediate supervision over the appointee. (CSC v.
Pedro O. Dacoycoy, G.R. No. 135805, April 29, 1999, En Banc [Pardo])
What are the exemptions from the operation of the rules on nepotism?
The following are exempted from the operation of the rules on nepotism: (a)
persons employed in a confidential capacity, (b) teachers, (c) physicians, and (d)
members of the Armed Forces of the Philippines.
The rules on nepotism shall likewise not be applicable to the case of a member
of any family who, after his or her appointment to any position in an office or bureau,
contracts marriage with someone in the same office or bureau, in which event the
employment or retention therein of both husband and wife may be allowed. (Sec. 59,
Chap. 7, Subtitle A, Title I, Bk. V, E.O. No. 292)
Preventive Suspension
Jurisprudential law (Reyes v. Delim, 368 SCRA 323, 333 [2001]; Yabut v. Office
of the Ombudsman, 233 SCRA 310, 316-317 [1994]; Beja, Sr. v. Court of Appeals, 207
SCRA 689, 694 [1992]) establishes a clear-cut distinction between suspension as
preventive measure and suspension as penalty. The distinction, by considering the
purpose aspect of the suspensions, is readily cognizable as they have different ends to
be achieved.
Xxx
99
Xxx
The rationale for this holding is that when the electorate put him back into office,
it is presumed that it did so with full knowledge of his life and character, including his
past misconduct. If, armed with such knowledge, it still reelects him, then such
reelection is considered a condonation of his past misdeeds. (Mayor Alvin B. Garcia
v. Hon. Arturo C. Mojica, et al., G.R. No. 139043, Sept. 10, 1999 [Quisumbing])
Caveat:
This Doctrine of Condonation was abandoned by the Supreme Court in the more
recent case of Conchita Carpio Morales v. Court of Appeals (Sixth Division), GR
Nos. 217126-27, November 10, 2015, En Banc (Perlas-Bernabe). However, the
abandonment of the doctrine was given prospective application only.
Xxx
As there was no legal precedent on the issue at that time, the Court, in
Pascual, resorted to American authorities and “found that cases on the matter are
conflicting due in part, probably, to differences in statutes and constitutional provisions,
100
and also, in part, to a divergence of views with respect to the question of whether the
subsequent election or appointment condones the prior misconduct.” Without going
into the variables of these conflicting views and cases, it proceeded to state that:
The weight of authorities x x x seems to incline toward the rule denying the
right to remove from office because of misconduct during a prior term, to
which we fully subscribe.
The conclusion is at once problematic since the Court has now uncovered that
there is really no established weight of authority in the United States (US) favoring the
doctrine of condonation, which, in the words of Pascual, theorizes that an official‟s re-
election denies the right to remove him from office due to a misconduct during a prior
term. In fact, x x x at least seventeen (17) states in the US have abandoned the
condonation doctrine. X x x
Xxx
At any rate, these US cases are only of persuasive value in the process of this
Court‟s decision-making. “[They] are not relied upon as precedents, but as guides of
interpretation.” Therefore, the ultimate analysis is on whether or not the condonation
doctrine, as espoused in Pascual, and carried over in numerous cases after, can be
held up against prevailing legal norms. Note that the doctrine of stare decisis does not
preclude this Court from revisiting existing doctrine. X x x
In this case, the Court agrees x x x that since the time Pascual was decided, the
legal landscape has radically shifted. Again, Pascual was a 1959 case decided under
the 1935 Constitution, which dated provisions do not reflect the experience of the
Filipino people under the 1973 and 1987 Constitutions. Therefore, the plain difference
in setting, including, of course, the sheer impact of the condonation doctrine on public
accountability, calls for Pascual‟s judicious re-examination.
First, the penalty of removal may not be extended beyond the term in which the
public officer was elected for each term is separate and distinct x x x.
Third, courts may not deprive the electorate, who are ssumed to have known the
life and character of candidates, of their right to elect officers x x x.
101
Xxx
The Court, citing Civil Service Commission v. Sojor (577 Phil. 52, 72 [2008]), also
clarified that the condonation doctrine would not apply to appointive officials since,
as to them, there is no sovereign will to disenfranchise x x x.
Xxx
A thorough review of the cases post-1987 x x x would show that the basis for
condonation under the prevailing constitutional and statutory framework was never
accounted for. What remains apparent from the text of these cases is that the basis for
condonation, as jurisprudential doctrine, was – and still remains – the above-cited
postulates of Pascual, which was lifted from rulings of US courts where condonation
was amply supported by their own state laws. With respect to its applicability to
administrative cases, the core premise of condonation - that is, an elective official‟s re-
election cuts off the right to remove him for an administrative offense committed during
a prior term – was adopted hook, line, and sinker in our jurisprudence largely because
the legality of that doctrine was never tested against existing legal norms. As in the US,
the propriety of condonation is – as it should be – dependent on the legal foundation of
the adjudicating jurisdiction. Hence, the Court undertakes an examination of our current
laws in order to determine if there is legal basis for the continued application of the
doctrine of condonation.
Xxx
With the advent of the 1973 Constitution, the approach in dealing with public
officers underwent a significant change. The new charter introduced an entire article on
accountability of public officers, found in Article XIII. Section 1 thereof positively
recognized, acknowledged, and declared that “[p]ublic office is a public trust.”
Accordingly, “[p]ublic officers and employees shall serve with the highest degree
of responsibility, integrity, loyalty and efficiency, and shall remain accountable to
the people.”
After the turbulent decades of Martial Law rule, the Filipino People have framed
and adopted the 1987 Constitution, which sets forth in the Declaration of Principles and
State Policies in Article II that “[t]he State shall maintain honesty and integrity in the
public service and take positive and effective measures against graft and
corruption.” Learning how unbridled power could corrupt public servants under the
102
regime of a dictator, the Framers put primacy on the integrity of the public service by
declaring it as a constitutional principle and a State policy. More significantly, the 1987
Constitution strengthened and solidified what have been first proclaimed in the 1973
Constitution by commanding public officers to be accountable to the people at all times.
Xxx
The same mandate is found in the Revised Administrative Code under the
section of the Civil Service Commission, and also, in the Code of Conduct and Ethical
Standards for Public Officials and Employees.
For local elective officials like Binay, Jr., the grounds to discipline, suspend or
remove an elective local official from office are stated in Section 60 of Republic
Act No. 7160, otherwise known as the “Local Government Code of 1991” (LGC), which
was approved on October 10, 1991, and took effect on January 1, 1992.
Xxx
Related to this provision is Section 40 (b) of the LGC which states that those
removed from office as a result of an administrative case shall be disqualified
from running for any elective local position.
In the same sense, Section 52 (a) of the RRACCS provides that the penalty of
dismissal from service carries the accessory penalty of perpetual disqualification
from holding public office.
In contrast, Section 66 (b) of the LGC states that the penalty of suspension shall
not exceed the unexpired term of the elective local official nor constitute a bar to his
candidacy for as long as he meets the qualifications required for the office. Note,
however, that the provision only pertains to the duration of the penalty and its effect on
the official‟s candidacy. Nothing therein states that the administrative liability
therefor is extinguished by the fact of re-election x x x.
Reading the 1987 Constitution together with the above-cited legal provisions now
leads this Court to the conclusion that the doctrine of condonation is actually bereft of
legal bases.
To begin with, the concept of public office is a public trust and the corollary
requirement of accountability to the people at all times, as mandated under the
1987 Constitution, is plainly inconsistent with the idea that an elective local official‟s
administrative liability for a misconduct committed during a prior term can be wiped off
by the fact that he was elected to a second term of office, or even another elective post.
Election is not a mode of condoning an administrative offense, and there is simply
no constitutional or statutory basis in our jurisdiction to support the notion that an official
elected for a different term is fully absolved of any administrative liability arising from an
offense done during a prior term. In this jurisdiction, liability arising from
administrative offenses may be condoned by the President in light of Section 19,
Article VII of the 1987 Constitution which was interpreted in Llamas v. Orbos (279 Phil.
920, 937 [1991]) to apply to administrative offenses x x x.
103
Also, it cannot be inferred from Section 60 of the LGC that the grounds for
discipline enumerated therein cannot anymore be invoked against an elective local
official to hold him administratively liable once he is re-elected to office. In fact, Section
40 (b) of the LGC precludes condonation since in the first place, an elective local official
who is meted with the penalty of removal could not be re-elected to an elective local
position due to a direct disqualification from running for such post. In similar regard,
Section 52 (a) of the RRACCS imposes penalty of perpetual disqualification from
holding public office as an accessory to the penalty of dismissal from service.
At best, Section 66 (b) of the LGC prohibits the enforcement of the penalty of
suspension beyond the unexpired portion of the elective local official‟s term, and
likewise allows said official to still run for re-election. X x x. However, as previously
stated, nothing in Section 66 (b) states that the elective local official‟s administrative
liability is extinguished by the fact of re-election. Thus, at all events, no legal provision
actually supports the theory that the liability is condoned.
Hence, while the future may ultimately uncover a doctrine‟s error, it should be, as
a general rule, recognized as “good law” prior to its abandonment. Consequently, the
people‟s reliance thereupon should be respected. X x x
Indeed, the lessons of history teach us that institutions can greatly benefit from
hindsight and rectify its ensuing course. Thus, while it is truly perplexing to think that a
doctrine which is barren of legal anchorage was able to endure in our jurisprudence for
a considerable length of time, this Court, under a new membership, takes up the
cudgels and now abandons the condonation doctrine. (Conchita Carpio Morales v.
Court of Appeals [Sixth Division], GR Nos. 217126-27, November 10, 2015, En
Banc [Perlas-Bernabe])
ELECTION LAWS
Held:
105
to the limitations of the 1987 Constitution and is a mere complement to the Existing
Voter‟s Registration Act of 1996. X x x
“Contrary to petitioners‟ assertion, the regulation passes the strict scrutiny test.
“In terms of judicial review of statutes or ordinances, strict scrutiny refers to the
standard for determiningthe quality and the amount of governmental interest brought to
justify the regulation of fundamental freedoms. Strict scrutiny is used today to test the
validity of laws dealing with the regulation of speech, gender, or race as well as other
fundamental rights as expansion from its earlier applications to equal protection. X x x
the United States Supreme Court has expanded the scope of scrutiny to protect
fundamental rights such as suffrage, judicial access, and interstate travel.
“In this case, respondents have shown that the biometrics validation requirement
under RA 10367 advances a compelling state interest. It was precisely designed to
facilitate the conduct of orderly, honest, and credible elections by containing – if not
eliminating, the perennial problem of having flying voters, as well as deadand multiple
registrants. X x x the objective of the law was to cleanse the national voter registry so
as to eliminate electoral fraud and ensure that the results of the elections were truly
reflective of the genuine will of the people. The foregoing consideration is
unquestionably a compelling state interest.
“Also, it was shown that the regulation is the least restrictive means for achieving
the above-said interest. Section 6 of Resolution 9721 sets the procedure for biometrics
validation x x x. It is, in effect, a manner of updating one‟s registration for those already
registered under RA 8189, or a first-time registration for new registrants. The re-
registration process is amply justified by the fact that the government is adopting a
novel technology like biometrics in order to address the bane of electoral fraud that has
enduringly plagued the electoral exercises in this country. While registrants may be
inconveniencedby waiting in long linesor by not being accommodatedon certain days
due to heavy volume of work, these are typical burdens of voting that are remedied by
bureaucratic improvements to be implemented by the COMELEC as an administrative
106
institution. By and large, the COMELEC has not turned a blind eye to these realities. It
has tried to account for the exigencies x x x.
“That being said, the assailed regulation on the right to suffrage was sufficiently
justified as it was indeed narrowly tailored to achieve the compelling state interest of
establishing a clean, complete, permanent and updated list of voters, and was
demonstrably the least restrictive means in promoting that interest.
Makalintal v. COMELEC
What is the purpose of the law in requiring the filing of certificate of candidacy
and in fixing the time limit therefor?
The evident purpose of the law in requiring the filing of certificate of candidacy
and in fixing the time limit therefor are: (a) to enable the voters to know, at least sixty
days before the regular election, the candidates among whom they are to make the
choice, and (b) to avoid confusion and inconvenience in the tabulation of the votes cast.
For if the law did not confine the choice or election by the voters to the duly registered
candidates, there might be as many persons voted for as there are voters, and votes
might be cast even for unknown or fictitious persons as a mark to identify the votes in
favor of a candidate for another office in the same election. (Miranda v. Abaya, G.R.
No. 136351, July 28, 1999)
May a disqualified candidate and whose certificate of candidacy was denied due
course and/or canceled by the COMELEC be validly substituted?
Even on the most basic and fundamental principles, it is readily understood that
the concept of a substitute presupposes the existence of the person to be substituted,
for how can a person take the place of somebody who does not exist or who never was.
The Court has no other choice but to rule that in all instances enumerated in Section 77
of the Omnibus Election Code, the existence of a valid certificate of candidacy
seasonably filed is a requisite sine qua non.
107
Effect of Disqualification Case
Resolving the third issue necessitates revisiting Topacio v. Paredes which is the
jurisprudential spring of the principle that a second-placer cannot be proclaimed as the
winner in an election contest. This doctrine must be re-examined and its soundness
once again put to the test to address the ever-recurring issue that a second placer who
loses to an ineligible candidate cannot be proclaimed as the winner in the elections.
Xxx
This case is not even the ratio decidendi; it is a mere obiter dictum. The Court
was comparing “the effect of a decision that a candidate is not entitled to the office
because of fraud or irregularities in the elections x x x [with] that produced by declaring
a person ineligible to hold such an office.”
Xxx
On closer scrutiny, the phrase relied upon by a host of decisions does not even
have a legal basis to stand on. It was a mere pronouncement of the Court comparing
one process with another and explaining the effects thereof. As an independent
statement, it is even illogical.
Xxx
What prevents the transfer of the wreath of victory from the ineligible candidate to
another candidate?
When the issue being decided upon by the Court is the eligibility of the one
receiving a plurality of the legally cast ballots and ineligibility is thereafter established,
what stops the Court from adjudging another eligible candidate who received the next
highest number of votes as the winner and bestowing upon him that “wreath?”
Even when the votes for the ineligible candidate are disregarded, the will of the
electorate is still respected, and even more so. The votes cast in favor of an ineligible
candidate do not constitute the sole and total expression of the sovereign voice. The
votes cast in favor of eligible and legitimate candidates form part of that voice and must
also be respected.
Xxx
That the disqualified candidate has already been proclaimed and has assumed
office is of no moment. The subsequent disqualifications based on a substantive
ground that existed prior to the filing of the certificate of candidacy voids not only the
COC but the proclamation.
Xxx
With Arnado being barred from even becoming a candidate, his certificate of
candidacy is thus rendered void from the beginning. It could not have produced any
other legal effect x x x.
109
To hold that such proclamation is valid is to negate the prohibitory character of
the disqualification which Arnado possessed even prior to the filing of the certificate of
candidacy. The affirmation of Arnado‟s disqualification, although made long after the
elections, reaches back to the filing of the certificate of candidacy. Arnado is declared
to be not a candidate at all in the May 2010 elections.
Arnado being not a candidate, the votes cast in his favor should not have been
counted. This leaves Maquiling as the qualified candidate who obtained the highest
number of votes therefore, the rule on succession under the Local Government Code
will not apply. (Casan Macode Maquiling v. COMELEC, et al., G.R. No. 195649,
April 16, 2013, En Banc [Sereno, CJ])
Local Governments are the Territorial and Political Subdivisions of the Republic
of the Philippines
Autonomous Regions
The Congress shall enact an organic act for each autonomous region with
the assistance and participation of the regional consultative commission
composed of representatives appointed by the President from a list of nominees
from multisectoral bodies. The organic act shall define the basic structure of
government for the region consisting of the executive department and legislative
assembly, both of which shall be elective and representative of the constituent
political units. The organic acts shall likewise provide for special courts with
personal, family and property law jurisdiction consistent with the provisions of this
Constitution and national laws.
110
The Province of North Cotabato v. The Government of the Republic of the
Philippines Peace Panel, G.R. No. 183591, 568 SCRA 402, October 14, 2008, En
Banc (Carpio-Morales)
Rodolfo G. Navarro, et al. v. Executive Secretary Eduardo Ermita, et al., G.R. No.
180050, 12 May 2010, En Banc (Peralta)
Therefore, there are two requirements for land area: (1) the land area must be
contiguous; and (2) the land area must be sufficient to provide for such basic services
and facilities to meet the requirements of its populace. A sufficient land area in the
creation of a province is at least 2,000 square kilometers, as provided by Section 461 of
LGC.
However, paragraph (b) of Section 461 provides two instances of exemption from
the requirement of territorial contiguity, to wit, “the territory need not be contiguous if it
comprises two (2) or more islands, or is separated by a chartered city or cities which do
not contribute to the income of the province.”
Where the law is free from ambiguity, the court may not introduce exceptions or
conditions where none is provided from considerations of convenience, public welfare,
or for any laudable purpose; neither may it engraft into the law qualifications not
contemplated, nor construe its provisions by taking into account questions of
expediency, good faith, practical utility and other similar reasons so as to relax non-
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compliance therewith. Where the law speaks in clear and categorical language, there is
no room for interpretation, but only for application.
The formalities in enacting an ordinance are laid down in Section 53 and Section
54 of The Local Government Code. These provisions require the ordinance to be
passed by the majority of the members of the sanggunian concerned, and presented to
the mayor for approval. X x x.
The corporate powers of the local government unit confer the basic authority to
enact legislation that may interfere with personal liberty, property, lawful businesses and
occupations in order to promote the general welfare. Such legislative powers spring
from the delegation thereof by Congress through either the Local Government Code or
a special law. The General Welfare Clause in Section 16 of the Local Government
Code embodies the legislative grant that enables the local government unit to effectively
accomplish and carry out the declared objects of its creation, and to promote and
maintain local autonomy. X x x.
Section 458 of the Local Government Code explicitly vests the local government
unit with the authority to enact ordinances aimed at promoting the general welfare x x x.
In terms of the right of the citizens to health and to a balanced and healthful
ecology, the local government unit takes its cue from Section 15 and Section 16, Article
II of the 1987 Constitution. Following the provisions of the Local Government Code and
the Constitution, the acts of the local government unit designed to ensure the health and
lives of its constituents and to promote a balanced and healthful ecology are well within
the corporate powers vested in the local government unit. X x x. (Wilfredo Mosqueda,
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et al. v. Pilipino Banana Growers & Exporters Association, et al., G.R. No. 189185,
August 16, 2016, En Banc [Bersamin])
A valid ordinance must not only be enacted within the corporate powers of the
local government and passed according to the procedure prescribed by law. In order to
declare it as a valid piece of local legislation, it must also comply with the following
substantive requirements, namely: (1) it must not contravene the Constitution or any
statute; (2) it must be fair, not oppressive; (3) it must not be partial or discriminatory; (4)
it must not prohibit but may regulate trade; (5) it must be general and consistent with
public policy; and (6) it must not be unreasonable. (Wilfredo Mosqueda, et al. v.
Pilipino Banana Growers & Exporters Association, et al., G.R. No. 189185, August
16, 2016, En Banc [Bersamin])
Ordinance No. 0309-07 of Davao City Prohibiting Aerial Spraying in That City
Declared Ultra Vires
Held:
Evidently, the FPA was responsible for ensuring the compatibility between
the usage and the application of pesticides in agricultural activities and the
demands for human health and environmental safety. This responsibility
includes not only the identification of safe and unsafe pesticides, but also the
prescription of the safe modes of application in keeping with the standard of good
agricultural practices.
For sure, every local government unit only derives its legislative authority
from Congress. In no instance can the local government unit rise above its
source of authority. As such, its ordinance cannot run against or contravene
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existing laws, precisely because its authority is only by virtue of the valid
delegation from Congress. X x x
Xxx
Devoid of the specific delegation to its legislative body, the City of Davao
exceeded its delegated authority to enact Ordinance No. 0309-07. Hence,
Ordinance No. 0309-07 must be struck down also for being an ultra vires act on
the part of the Sangguning Bayan of Davao City.
We must emphasize that our ruling herein does not seek to deprive the
LGUs their right to regulate activities within their jurisdiction. They are
empowered under Section 16 of the Local Government Code to promote the
general welfare of the people through regulatory, not prohibitive, ordinances that
conform with the policy directions of the National Government. Ordinance No.
0309-07 failed to pass this test as it contravenes the specific regulatory policy on
aerial spraying in banana plantations on a nationwide scale of the National
Government, through the FPA.
In the State‟s exercise of police power, the property rights of individuals may be
subjected to restraints and burdens in order to fulfill the objectives of the Government.
A local government unit is considered to have properly exercised its police power only if
it satisfies the following requisites, to wit: (1) the interests of the public generally, as
distinguished from those of a particular class, require the interference of the State; and
(2) the means employed are reasonably necessary for the attainment of the object
sought to be accomplished and not unduly oppressive. The first requirement refers to
the Equal Protection Clause of the Constitution, the second, to the Due Process Clause
of the Constitution.
Substantive due process requires that a valid ordinance must have a sufficient
justification for the Government‟s action. This means that in exercising police power the
local government unit must not arbitrarily, whimsically or despotically enact the
ordinance regardless of its salutary purpose. So long as the ordinance realistically
serves a legitimate public purpose, and it employs means that are reasonably
necessary to achieve that purpose without unduly oppressing the individuals regulated,
the ordnances must survive a due process challenge.(Wilfredo Mosqueda, et al. v.
Pilipino Banana Growers & Exporters Association, et al., G.R. No. 189185, August 16,
2016, En Banc [Bersamin])
Farinas v. Barba
The term limit for elective local officials must be taken to refer to the right to be
elected as well as the right to serve in the same elective position. Consequently, it is
not enough that an individual has served three consecutive terms in an elective local
office, he must also have been elected to the same position for the same number of
times before the disqualification can apply. (Borja, Jr. v. COMELEC and Capco, Jr.,
G.R. No. 133495, Sept. 3, 1998, 295 SCRA 157, En Banc [Mendoza])
The two conditions for the application of the disqualification provision are: (1) that
the local official concerned has been elected three consecutive times for the same
position; and (2) that he has fully served three consecutive terms. Absent one or both
of these two conditions, the disqualification may not yet apply. (Borja, Jr. v. COMELEC
and Capco, Jr., G.R. No. 133495, Sept. 3, 1998, 295 SCRA 157, En Banc
[Mendoza])
What are the policies embodied in the constitutional provision barring elective
local officials, with the exception of barangay officials, from serving more than
three consecutive terms?
What is prohibited by the Constitution is after serving three (3) consecutive terms
to the same position a local elective official shall run for immediate reelection. Any
subsequent reelection, like a recall election, is no longer covered by the provision, for as
long as it is not an immediate reelection after serving the three (3) consecutive terms.
Service of the recall term, since it is less than three (3) years, is not to be
considered as one full term for purposes of applying the disqualification under Section
8, Article X of the Constitution.
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The “interruption” of a term exempting an elective official from the three-term limit
rule is one that involves no less than the involuntary loss of title to office. The elective
official must have involuntarily left his office for a length of time, however short, for an
effective interruption to occur. Thus, based on this standard, loss of office by operation
of law, being involuntary, is an effective interruption of service within a term. On the
other hand, temporary inability or disqualification to exercise the functions of an elective
post, even if involuntary, should not be considered an effective interruption of a term
because it does not involve the loss of title to office or at least an effective break from
holding office; the office holder, while retaining title, is simply barred from exercising the
functions of his office for a reason provided by law.
An interruption occurs when the term is broken because the office holder lost the
right to hold on to his office, and cannot be equated with the failure to render service.
The latter occurs during an office holder‟s term when he retains title to the office but
cannot exercise his functions for reasons established by law. Of course, the term
“failure to serve” cannot be used once the right to office is lost; without the right to hold
office or serve, then no service can be rendered so that none is really lost.
To put it differently, Sec. 8, Art. X fixes an elective official‟s term of office and
limits his stay in office to three consecutive terms as an inflexible rule that is stressed no
less, by citing involuntary renunciation as an example of a circumvention. The provision
should be read in the context of interruption of term, not in the context of interrupting the
full continuity of the exercise of the powers of the elective position. The “voluntary
renunciation” it speaks of refers only to the elective official‟s voluntary relinquishment of
office and loss of title to his office. It does not speak of the temporary “cessation of the
exercise of power or authority” that may occur for various reasons, with preventive
suspension being only one of them.
Recall
Recall is a mode of removing a local elective official from his post even before
the end of his term on the ground of loss of confidence.
Loss of confidence as a ground for recall is a political question and therefore, not
subject to judicial review.(Evardone v. COMELEC) After all, as explained by the Court
in that case, the initiation of the recall process is not the recall itself. There will still be
conducted a special recall election and, in thatspecial recall election, it will be known
whether the people still have confidence in the local elective official sought to be
recalled or whether they no longer have confidence in him.
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Under current and existing laws, there is only one way of initiating recall and that
is, through a petition to be signed by the registered voters of the local government unit
concernedbecause of the enactment by Congress ofR.A. No. 9244 (Abolishing the
Preparatory Recall Assemblyas a Mode of Initiating Recall) on February 18, 2004.
Under the Vienna Convention on the Law of Treaties, a treaty that violates a jus
cogens norm will have to be invalidated.
Erga omnes literally means “in relation to the whole.” An erga omnes refers to an
obligation of a State towards the international community of States as a whole.
Even the invocation of jus cogens norms and erga omnes obligations will
not alter this analysis. Even if we sidestep the question of whether jus cogens
norms existed in 1951, petitioners have not deigned to show that the crimes
committed by the Japanese army violated jus cogens prohibitions at the time the
Treaty of Peace was signed, or that the duty to prosecute perpetrators of
international crimes is an erga omnes obligation or has attained the status of jus
cogens.
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others are conferred by international instruments of a universal or quasi-universal
character.
The Latin phrase, „erga omnes,‟ has since become one of the rallying cries
of those sharing a belief in the emergence of a value-based international public
order. However, as is so often the case, the reality is neither so clear nor so
bright. Whatever the relevance of obligations erga omnes as a legal concept, its
full potential remains to be realized in practice.
The term is closely connected with the international law concept of jus
cogens. In international law, the term “jus cogens” (literally, “compelling law”)
refers to norms that command peremptory authority, superseding conflicting
treaties and custom. Jus cogens norms are considered peremptory in the sense
that they are mandatory, do not admit derogation, and can be modified only by
general international norms of equivalent authority.
Early strains of the jus cogens doctrine have existed since the 1700s, but
peremptory norms began to attract greater scholarly attention with the publication
of Alfred von Verdross‟s influential 1937 article, Forbidden Treaties in
International Law. The recognition of jus cogens gained even more force in the
1050s and 1960s with the ILC‟s preparation of the Vienna Convention on the Law
of Treaties (VCLT). Though there was a consensus that certain international
norms had attained the status of jus cogens, the ILC was unable to reach a
consensus on the proper criteria for identifying peremptory norms.
` After an extended debate over these and other theories of jus cogens, the
ILC concluded ruefully in 1963 that “there is not as yet any generally accepted
criterion by which to identify a general rule of international law as having the
character of jus cogens.” In a commentary accompanying the draft convention,
the ILC indicated that “the prudent course seems to be to x x x leave the full
content of this rule to be worked out in State practice and in the jurisprudence of
international tribunals.” Thus, while the existence of jus cogens in international
law is undisputed, no consensus exists on its substance, beyond a tiny core of
principles and rules.
The State
The 1987 Constitution provides that no province, city, or municipality, not even
the Autonomous Region for Muslim Mindanao (ARMM) is recognized under our laws as
having an“associative” relationship with the national government. Indeed, the concept
implies powers that go beyond anything ever granted by the Constitution to any local or
regional government. It also implies the recognition of the associated entity as a state.
The Constitution, however, does not contemplate any state in this jurisdiction other than
the Philippine State, much less does it provide for a transitory status that aims to
prepare any part of Philippine territory for independence. (The Province of North
Cotabato v. The Government of the Republic of the Philippines Peace Panel, G.R.
No. 183591, 568 SCRA 402, October 14, 2008, En Banc [Carpio-Morales])
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While sovereignty has traditionally been deemed absolute and all-encompassing
on the domestic level, it is however subject to restrictions and limitations voluntarily
agreed to by the Philippines, expressly or impliedly, as a member of the family of
nations. By the doctrine of incorporation, the country is bound by generally accepted
principles of international law, which are considered to be automatically part of our own
laws. One of the oldest and most fundamental rules in international law is pacta sunt
servanda – international agreements must be performed in good faith. A state which
has contracted valid international obligations is bound to make in its legislations such
modifications as may be necessary to ensure the fulfillment of the obligations.
Territory of States
Professor Merlin M. Magallona, et al. v. Hon. Eduardo Ermita, et al., G.R. No.
187167, 655 SCRA 476, August 16, 2011, En Banc (Carpio)
Liang v. People, 323 SCRA 692 (2000); 355 SCRA 125 (2001) (Focus on Justice
Puno’s Concurring Opinion)
Refugees
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The Non-Refoulement Principle
The right of a refugee not to be expelled or returned “in any manner whatsoever
to the frontiers of territories where his life or freedom would be threatened on account of
his race, religion, nationality, membership of a particular social group or political
opinion.” The prohibition of such expulsion or return becomes an obligation of States
parties to the Convention Relating to the Status of Refugees. (Magallona,
Fundamentals of Public International Law, 2005 Ed., p. 289)
Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., G.R. No.
212426, January 12, 2016, En Banc (Sereno, CJ)
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Geneva Conventions of 1949, four treaties signed by almost every nation in the world.
The Conventions define fundamental rights for combatants removed from the fighting
due to injury, illness, or capture, and for civilians. The 1977 Additional Protocols,
which supplement the Geneva Conventions, further expand those rights.
These are:
(1) Geneva Convention for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field of August 12, 1949 (First Geneva
Convention);
(2) Geneva Convention for the Amelioration of the Condition of Wounded, Sick
and Shipwrecked Members of Armed Forces at Sea of August 12, 1949
(Second Geneva Convention);
(3) Geneva Convention Relative to the Treatment of Prisoners of War of August
12, 1949 (Third Geneva convention);
(4) Geneva Convention Relative to the Protection of Civilian Persons in Time of
War of August 12, 1949 (Fourth Geneva Convention);
(5) Protocol Additional to the Geneva Conventions of 12 August 1949 and
Relating to the Protection of Victims of International Armed Conflicts
(Protocol I) of 8 June 1977; and
(6) Protocol Additional to the Geneva Conventions of 12 August 1949 and
Relating to the Protection of Victims of Non-International Armed Conflicts
(Protocol II) of 8 June 1977.
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An armed conflict may be of such nature in which “peoples are fighting against
colonial domination and alien occupation and against racist regimes in the exercise of
their right of self-determination.”
The Rome Statute established the International Criminal Court which “shall have
the power to exercise its jurisdiction over persons for the most serious crimes of
international concern x x x and shall be complementary to the national criminal
jurisdictions.” (Article I, Rome Statute) Its jurisdiction covers the crime of genocide,
crimes against humanity, war crimes and the crime of aggression as defined in the
Statute (Article 5, Rome Statute). The Statute was opened for signature by all States in
Rome on July 17, 1988 and had remained open for signature until December 31, 2000
at the United Nations Headquarters in New York. The Philippines signed the Statute on
December 28, 2000 x x x. Its provisions, however, require that it be subject to
ratification, acceptance or approval of the signatory states (Article 25, Rome Statute).
(Pimentel, Jr. v. Office of the Executive Secretary, 462 SCRA 622, July 6, 2005, En
Banc [Puno])
What offenses fall under the jurisdiction of the International Criminal Court (ICC)?
The International Criminal Court (ICC) shall have the power to exercise
jurisdiction over persons for the most serious crimes of international concern. Its
jurisdiction covers the crime of genocide, crimes against humanity, war crimes and the
crime of aggression as defined in the Statute (Article 5, Rome Statute). (Pimentel, Jr.
v. Office of the Executive Secretary, 462 SCRA 622, July 6, 2005, En Banc [Puno])
The tenth preambular paragraph of the ICC Statute emphasizes that “the
International Criminal Court x x x shall be complementary to national criminal
jurisdiction.” This principle becomes operative in Article 1 of the Statute. This,
however, has to be correlated with the sixth preambular paragraph of the Statute which
declares that “it is the duty of every State to exercise its criminal jurisdiction over those
responsible for international crimes.” The principle of complementarity produces a
correlation of the ICC jurisdiction with that of every state over international crimes under
the ICC Statute.
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The principle of ne bis in idem in Article 20, paragraph 3, of ICC Statute
strengthens complementarity, thus: Unless the proceedings in the national court is for
the purpose of shielding the person concerned from liability, or not conducted
independently or impartially, “no person who has been tried by another court for conduct
… [constituting crimes within its jurisdiction] shall be tried by the Court with respect to
the same conduct x x x.” (Magallona, Fundamentals of Public International Law
[2005 ed.])
The international law of the sea is generally defined as “a body of treaty rules
and customary norms governing the uses of the sea, the exploitation of its resources,
and the exercise of jurisdiction over maritime regimes. It is a branch of public
international law, regulating the relations of states with respect to the uses of the
oceans.” (Merlin M. Magallona, A Primer on the Law of the Sea, 1997, p. 1) The
UNCLOS is a multilateral treaty which was opened for signature on December 10, 1982
at Montego Bay, Jamaica. It was ratified by the Philippines in 1984 but came into force
on November 16, 1994 upon the submission of the 60th ratification.
Insofar as the internal waters and territorial sea is concerned, the Coastal States
exercises sovereignty, subject to the UNCLOS and other rules of international law.
Such sovereignty extends to the air apace over the territorial sea as well as to its bed
and subsoil (Art. 2, UNCLOS). (Most Rev. Pedro D. Arigo, et al. v. Scott H. Swift, et
al., G.R. No. 206510, September 16, 2014, En Banc [Villarama, Jr.])
Background Information
On December 29, 1993, the Convention on Biological Diversity (CBD) came into
force. This multilateral treaty recognized that “modern biotechnology has great potential
for human well-being if developed and used with adequate safety measures for the
environment and human health.” Its main objectives, as spelled out in Article I, are the
“conservation of biological diversity, the sustainable use of its components and the fair
and equitable sharing of the benefits arising out of the utilization of genetic resources.”
(International Service for the Acquisition of Agri-biotech Applications, Inc. v.
Greenpeace Southeast Asia (Philippines), et al., GR No. 209271, December 8,
2015, En Banc [Villarama])
The Cartagena Protocol
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In January 2000, an agreement was reached on the Cartagena Protocol on
Biosafety (Cartagena Protocol), a supplemental to the CBD. The Cartagena Protocol
aims “to contribute to ensuring an adequate level of the safe transfer, handling and use
of living modified organisms resulting from modern biotechnology that may have
adverse effects on the conservation and sustainable use of biological diversity, taking
into account risks to human health, and specifically focusing on transboundary
movements.”
On May 24, 2000, the Philippines signed the Cartagena Protocol, which came
into force on September 11, 2003. On August 14, 2006, the Philippine Senate adopted
Senate Resolution No. 92 or the “Resolution Concurring in the Ratification of the
Cartagena Protocol on Biosafety (CPB) to the UN Convention on Biological Diversity.”
(International Service for the Acquisition of Agri-biotech Applications, Inc. v.
Greenpeace Southeast Asia (Philippines), et al., GR No. 209271, December 8,
2015, En Banc [Villarama])
Biotechnology
Principle 15 codified for the first time at the global level the precautionary
approach, which indicates that lack of scientific certainty is no reason to postpone action
to avoid potentially serious or irreversible harm to the environment. It has been
incorporated in various international legal instruments. The Cartagena Protocol on
Biosafety to the Convention on Biological Diversity, finalized and adopted in Montreal on
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January 29, 2000, establishes an international regime primarily aimed at regulating
trade in GMOs intended for release into the environment, in accordance with Principle
15 of the Rio Declaration on Environment and Development.
The Rules (of Procedure for Environmental Cases) incorporated the principle in
Part V, Rule 20.
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