CONSTITUTIONAL LAW

122.

What is the effect of declaration of unconstitutionality of a law? Illustrative case.

Held: Respondents are seeking a reconsideration of the Court s 25 January 2000 decision, wherein we declared section 8 of Republic Act No. 8551 (RA 8551) to be violative of petitioners constitutionally mandated right to security of tenure. As a consequence of our ruling, we held that petitioners removal as commissioners of the National Police Commission (NAPOLCOM) and the appointment of new Commissioners in their stead were nullities and ordered the reinstatement of petitioners and the payment of full backwages to be computed from the date they were removed from office. Xxx An unconstitutional act is not a law; it confers no rights, imposes no duties, and affords no protection (Fernandez v. Cuerva, 21 SCRA 1095 [1967]). Therefore, the unavoidable consequence of the Court s declaration that section 8 of RA 8551 violates the fundamental law is that all acts done pursuant to such provision shall be null and void, including the removal of petitioners and Adiong from their positions in the NAPOLCOM and the appointment of new commissioners in their stead. When a regular government employee is illegally dismissed, his position does not become vacant and the new appointment made in order to replace him is null and void ab initio (Aquino v. Civil Service Commission, 208 SCRA 240 [1992]). Rudimentary is the precept that there can be no valid appointment to a non-vacant position (Garces v. Court of Appeals, 259 SCRA 99 [1996]). Accordingly, Adiong s appointment on 11 March 1998 for a term of two years, pursuant to section 8 of RA 8551, is null and void. However, he should now be permitted to enjoy the remainder of his term under RA 6975. Therefore, based on our foregoing disquisition, there should no longer be any doubt as to the proper execution of our 25 January 2000 decision all the Commissioners appointed under RA 8551 should be removed from office, in order to give way to the reinstatement of petitioners and respondent Adiong. (Canonizado v. Aguirre, 351 SCRA 659, Feb. 15, 2001, En Banc [Gonzaga-Reyes])

123. Discuss the Void for Vagueness Doctrine, and why is it repugnant to the Constitution. Distinguish a perfectly vague act from legislation couched in imprecise language. Held: 1. Due process requires that the terms of a penal statute must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties (Connally v. General Construction Co., 269 US 385, 70 L Ed 322 46 S Ct 126 [1926]). A criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute, or is so indefinite that it encourages arbitrary and erratic arrests and convictions, is void for vagueness (Colautti v. Franklin, 439 US 379, 58 L Ed 2d 596, 99 S Ct 675 [1979]). The constitutional vice in a vague or indefinite statute is the injustice to the accused in placing him on trial for an offense, the nature of which he is given no fair warning (American Communications Asso. v. Douds, 339 US 382, 94 L Ed 925, 70 S Ct 674 [1950]) We reiterated these principles in People v. Nazario (165 SCRA 186 [1988]): As a rule, a statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and become an arbitrary flexing of the Government muscle.

We added, however, that: X x x the act must be utterly vague on its face, that is to say, it cannot be clarified by either a saving clause or by construction. Thus, in Coates v. City of Cincinnati, the U.S. Supreme Court struck down an ordinance that had made it illegal for three or more persons to assemble on any sidewalk and there conduct themselves in a manner annoying to persons passing by. Clearly, the ordinance imposed no standard at all because one may never know in advance what annoys some people but does not annoy others. Coates highlights what has been referred to as a perfectly vague act whose obscurity is evident on its face. It is to be distinguished, however, from legislation coached in imprecise language but which nonetheless specifies a standard though defectively phrased in which case, it may be saved by proper construction. X x x (People v. Dela Piedra, 350 SCRA 163, Jan. 24, 2001, 1st Div. [Kapunan]) 2. The doctrine has been formulated in various ways, but is commonly stated to the effect that a statute establishing a criminal offense must define the offense with sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited by the statute. It can only be invoked against that specie of legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by construction. A statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ in its application. In such instance, the statute is repugnant to the Constitution in two (2) respects it violated due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle (See People v. Nazario, No. L-44143, 31 August 1988, 165 SCRA 186, 195-196). But the doctrine does not apply as against legislations that are merely couched in imprecise language but which nonetheless specify a standard though defectively phrased; or to those that are apparently ambiguous yet fairly applicable to certain types of activities. The first may be saved by proper construction, while no challenge may be mounted as against the second whenever directed against such activities (Ibid.) With more reason, the doctrine cannot be invoked where the assailed statute is clear and free from ambiguity, as in this case. The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice (State v. Hill, 189 Kan 403, 369 P2d 365, 91 ALR 2d 750). It must be stressed, however, that the vagueness doctrine merely requires a reasonable degree of certainty for the statute to be upheld not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly delineated. An act will not be held invalid merely because it might have been more explicit in its wordings or detailed in its provisions, especially where, because of the nature of the act, it would be impossible to provide all the details in advance as in all other statutes. (Joseph Ejercito Estrada v. Sandiganbayan [Third Division], G.R. No. 148560, Nov. 19, 2001, En Banc [Bellosillo]) 124. Does Article 13 (b) of the Labor Code defining recruitment and placement violate the due process clause? Held: In support of her submission that Article 13 (b) is void for vagueness, appellant invokes People v. Panis (142 SCRA 664 [1986]), where this Court x x x criticized the definition of recruitment and placement x x x.

Appellant further argues that the acts that constitute recruitment and placement suffer from overbreadth since by merely referring a person for employment, a person may be convicted of illegal recruitment. These contentions cannot be sustained. Appellant s reliance on People v. Panis is misplaced. The issue in Panis was whether, under the proviso of Article 13(b), the crime of illegal recruitment could be committed only whenever two or more persons are in any manner promised or offered any employment for a fee. The Court held in the negative x x x. X x x The Court, in Panis, merely bemoaned the lack of records that would help shed light on the meaning of the proviso. The absence of such records notwithstanding, the Court was able to arrive at a reasonable interpretation of the proviso by applying principles in criminal law and drawing from the language and intent of the law itself. Section 13(b), therefore, is not a perfectly vague act whose obscurity is evident on its face. If at all, the proviso therein is merely couched in imprecise language that was salvaged by proper construction. It is not void for vagueness. Xxx That Section 13(b) encompasses what appellant apparently considers as customary and harmless acts such as labor or employment referral ( referring an applicant, for employment to a prospective employer) does not render the law overbroad. Evidently, appellant misapprehends concept of overbreadth. A statute may be said to be overbroad where it operates to inhibit the exercise of individual freedoms affirmatively guaranteed by the Constitution, such as the freedom of speech or religion. A generally worded statute, when construed to punish conduct which cannot be constitutionally punished is unconstitutionally vague to the extent that it fails to give adequate warning of the boundary between the constitutionally permissible and the constitutionally impermissible applications of the statute (Wright v. Georgia, 373 US 284, 10 L Ed 2d 349, 83 S Ct 1240 [1963]). In Blo Umpar Adiong v. Commission on Elections (207 SCRA 712 [1992]), for instance, we struck down as void for overbreadth provisions prohibiting the posting of election propaganda in any place including private vehicles other than in the common poster areas sanctioned by the COMELEC. We held that the challenged provisions not only deprived the owner of the vehicle the use of his property but also deprived the citizen of his right to free speech and information. The prohibition in Adiong, therefore, was so broad that it covered even constitutionally guaranteed rights and, hence, void for overbreadth. In the present case, however, appellant did not even specify what constitutionally protected freedoms are embraced by the definition of recruitment and placement that would render the same constitutionally overbroad. (People v. Dela Piedra, 350 SCRA 163, Jan. 24, 2001, 1st Div. [Kapunan]) 125. Is the Plunder Law unconstitutional for being vague?

Held: As it is written, the Plunder Law contains ascertainable standards and well-defined parameters which would enable the accused to determine the nature of his violation. Section 2 is sufficiently explicit in its description of the acts, conduct and conditions required or forbidden, and prescribes the elements of the crime with reasonable certainty and particularity. X x x As long as the law affords some comprehensible guide or rule that would inform those who are subject to it what conduct would render them liable to its penalties, its validity would be sustained. It must sufficiently guide the judge in its application; the counsel, in defending one charged with its violation; and more importantly, the accused, in identifying the realm of the proscribed conduct. Indeed, it can be understood with little difficulty that what the assailed statute punishes is the act of a public

officer in amassing or accumulating ill-gotten wealth of at least P50,000,000.00 through a series or combination of acts enumerated in Sec. 1, par. (d), of the Plunder Law. In fact, the amended Information itself closely tracks the language of the law, indicating with reasonable certainty the various elements of the offense which petitioner is alleged to have committed x x x. We discern nothing in the foregoing that is vague or ambiguous as there is obviously none that will confuse petitioner in his defense. Although subject to proof, these factual assertions clearly show that the elements of the crime are easily understood and provide adequate contrast between the innocent and the prohibited acts. Upon such unequivocal assertions, petitioner is completely informed of the accusations against him as to enable him to prepare for an intelligent defense. Petitioner, however, bewails the failure of the law to provide for the statutory definition of the terms combination and series in the key phrase a combination or series of overt or criminal acts found in Sec. 1, par. (d), and Sec. 2, and the word pattern in Sec. 4. These omissions, according to petitioner, render the Plunder Law unconstitutional for being impermissibly vague and overbroad and deny him the right to be informed of the nature and cause of the accusation against him, hence, violative of his fundamental right to due process. The rationalization seems to us to be pure sophistry. A statute is not rendered uncertain and void merely because general terms are used therein, or because of the employment of terms without defining them (82 C.J.S. 68, P. 113; People v. Ring, 70 P.2d 281, 26 Cal. App. 2d Supp. 768); much less do we have to define every word we use. Besides, there is no positive constitutional or statutory command requiring the legislature to define each and every word in an enactment. Congress is not restricted in the form of expression of its will, and its inability to so define the words employed in a statute will not necessarily result in the vagueness or ambiguity of the law so long as the legislative will is clear, or at least, can be gathered from the whole act, which is distinctly expressed in the Plunder Law. Moreover, it is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in their natural, plain and ordinary acceptation and signification (Mustang Lumber, Inc. v. Court of Appeals, G.R. No. 104988, 18 June 1965, 257 SCRA 430, 448), unless it is evident that the legislature intended a technical or special legal meaning to those words (PLDT v. Eastern Telecommunications Phil., Inc., G.R. No. 943774, 27 August 1992, 213 SCRA 16, 26). The intention of the lawmakers who are, ordinarily, untrained philologists and lexicographers to use statutory phraseology in such a manner is always presumed. Thus, Webster s New Collegiate Dictionary contains the following commonly accepted definition of the words combination and series. Combination the result or product of combining; the act or process of combining. To combine is to bring into such close relationship as to obscure individual characters. Series a number of things or events of the same class coming one after another in spatial and temporal succession. That Congress intended the words combination and series to be understood in their popular meanings is pristinely evident from the legislative deliberations on the bill which eventually became RA 7080 or the Plunder Law x x x. Xxx Thus when the Plunder Law speaks of combination, it is referring to at least two (2) acts falling under different categories or enumeration provided in Sec. 1, par. (d), e.g., raids on the public treasury

in Sec. 1, par. (d), subpar. (1), and fraudulent conveyance of assets belonging to the National Government under Sec. 1, par. (d), subpar. (3). On the other hand, to constitute a series there must be two (2) or more overt or criminal acts falling under the same category of enumeration found in Sec. 1, par. (d), say, misappropriation, malversation and raids on the public treasury, all of which fall under Sec. 1, par. (d), subpar. (1). Verily, had the legislature intended a technical or distinctive meaning for combination and series, it would have taken greater pains in specifically providing for it in the law. As for pattern, we agree with the observations of the Sandiganbayan that this term is sufficiently defined in Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 x x x under Sec. 1 (d) of the law, a pattern consists of at least a combination or series of overt or criminal acts enumerated in subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the law, the pattern of overt or criminal acts is directed towards a common purpose or goal which is to enable the public officer to amass, accumulate or acquire ill-gotten wealth. And thirdly, there must either be an overall unlawful scheme or conspiracy to achieve said common goal. As commonly understood, the term overall unlawful scheme indicates a general plan of action or method which the principal accused and public officer and others conniving with him follow to achieve the aforesaid common goal. In the alternative, if there is no such overall scheme or where the schemes or methods used by multiple accused vary, the overt or criminal acts must form part of a conspiracy to attain a common goal. Xxx Hence, it cannot plausibly be contended that the law does not give a fair warning and sufficient notice of what it seeks to penalize. Under the circumstances, petitioner s reliance on the void-for-vagueness doctrine is manifestly misplaced. Xxx Moreover, we agree with, hence we adopt, the observations of Mr. Justice Vicente V. Mendoza during the deliberations of the Court that the allegations that the Plunder Law is vague and overbroad do not justify a facial review of its validity The void-for-vagueness doctrine states that a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. (Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L. Ed. 328 [1926] cited in Ermita-Malate Hotel and Motel Operators Ass n. v. City Mayor, 20 SCRA 849, 867 [1967]) The overbreadth doctrine, on the other hand, decrees that a governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. (NAACP v. Alabama, 377 U.S. 288, 307, 12, 2 L. Ed 325, 338 [1958]; Shelton v. Tucker, 364 U.S. 479, 5 L. Ed. 2d 231 [1960]) A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible chilling effect upon protected speech. The theory is that [w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity. (Gooding v. Wilson, 405 U.S. 518, 521, 31 L. Ed. 2d 408, 413 [1972] [internal quotation marks omitted]) The possible harm to society in permitting some unprotected speed to go

unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes. This rationale does not apply to penal statutes. 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. The overbreadth and vagueness doctrine then have special application only to free speech cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, we have not recognized an overbreadth doctrine outside the limited context of the First Amendment. In Broadwick v. Oklahoma (413 U.S. 601, 612-613, 37 L Ed. 2d 830, 840-841 [1973]), the Court ruled that claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words and, again, that overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct. For this reason, it has been held that a facial challenge to a legislative act is the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. (United States v. Salerno, supra.) As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. (Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 71 L Ed. 2d 362, 369 [1982]) In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing on their faces statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. (United States v. Raines, 362 U.S. 17, 21, 4 L. Ed. 2d 524, 529 [1960]. The paradigmatic case is Yazoo & Mississippi Valley RR. v. Jackson Vinegar Co., 226 U.S. 217, 57 l. Ed. 193 [1912]) As has been pointed out, vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found to be vague as a matter of due process typically are invalidated [only] as applied to a particular defendant. (G. Gunther & K. Sullivan, Constitutional Law 1299 [2001]) Consequently, there is no basis for petitioner s claim that this Court review the Anti-Plunder Law on its face and in its entirety. Indeed, on its face invalidation of statutes results in striking them down entirely on the ground that they might be applied to parties not before the Court whose activities are constitutionally protected (Id. at 1328). It constitutes a departure from the case and controversy requirement of the Constitution and permits decisions to be made without concrete factual settings and in sterile abstract contexts (Constitution, Art. VIII, Sections 1 and 5. Compare Angara v. Electoral Commission, 63 Phil. 139, 158 [1936]). But, as the U.S. Supreme Court pointed out in Younger v. Harris (401 U.S. 37, 52-53, 27 L. Ed. 2d 669, 680 [1971]; others omitted.) [T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes, x x x ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided.

For these reasons, on its face invalidation of statutes has been described as manifestly strong medicine, to be employed sparingly and only as a last resort, (Broadwick v. Oklahoma, 413 U.S. at 613, 37 L.Ed.2d at 841; National Endowment for the Arts v. Finley, 524 U.S. 569, 580 [1998]) and is generally disfavored (FW/PBS, Inc. v. City of Dallas, 493 U.S. 223, 107 L.Ed.2d 603 [1990]; Cruz v. Secretary of Environment and Natural Resources, G.R. No. 135385, 6 December 2000 [Mendoza, J., Separate Opinion]). In determining the constitutionality of a statute, therefore, its provisions which are alleged to have been violated in a case must be examined in the light of the conduct with which the defendant is charged (United States v. National Dairy Prod. Corp., 372 U.S. 29, 32-33, 9 L.Ed.2d 561, 565-6 [1963]) In light of the foregoing disquisition, it is evident that the purported ambiguity of the Plunder Law, so tenaciously claimed and argued at length by petitioner, is more imagined than real. Ambiguity, where none exists, cannot be created by dissecting parts and words in the statute to furnish support to critics who cavil at the want of scientific precision in the law. Every provision of the law should be construed in relation and with reference to every other part. To be sure, it will take more than nitpicking to overturn the well-entrenched presumption of constitutionality and validity of the Plunder Law. A fortiori, petitioner cannot feign ignorance of what the Plunder Law is all about. Being one of the Senators who voted for its passage, petitioner must be aware that the law was extensively deliberated upon by the Senate and its appropriate committees by reason of which he even registered his affirmative vote with full knowledge of its legal implications and sound constitutional anchorage. (Joseph Ejercito Estrada v. Sandiganbayan [Third Division], G.R. No. 148560, Nov. 19, 2001, En Banc [Bellosillo])

A. THE INHERENT POWERS OF THE STATE Police Power 126. Define Police Power and clarify its scope.

Held: 1. Police power is an inherent attribute of sovereignty. It has been defined as the power vested by the Constitution in the legislature to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and for the subjects of the same. The power is plenary and its scope is vast and pervasive, reaching and justifying measures for public health, public safety, public morals, and the general welfare. It bears stressing that police power is lodged primarily in the National Legislature. It cannot be exercised by any group or body of individuals not possessing legislative power. The National Legislature, however, may delegate this power to the President and administrative boards as well as the lawmaking bodies of municipal corporations or local government units. Once delegated, the agents can exercise only such legislative powers as are conferred on them by the national lawmaking body. (Metropolitan Manila Development Authority v. Bel-Air Village Association, Inc., 328 SCRA 836, 843-844, March 27, 2000, 1st Div. [Puno]) 2. The scope of police power has been held to be so comprehensive as to encompass almost all matters affecting the health, safety, peace, order, morals, comfort and convenience of the community. Police power is essentially regulatory in nature and the power to issue licenses or grant business permits, if exercised for a regulatory and not revenue-raising purpose, is within the ambit of this power. Xxx

[T]he issuance of business licenses and permits by a municipality or city is essentially regulatory in nature. The authority, which devolved upon local government units to issue or grant such licenses or permits, is essentially in the exercise of the police power of the State within the contemplation of the general welfare clause of the Local Government Code. (Acebedo Optical Company, Inc. v. Court of Appeals, 329 SCRA 314, March 31, 2000, En Banc [Purisima]) 127. Discuss the nature of the authority of local government units to issue or grant licenses or permits. Held: The issuance of business licenses and permits by a municipality or city is essentially regulatory in nature. The authority, which devolved upon local government units to issue or grant such licenses or permits, is essentially in the exercise of the police power of the State within the contemplation of the general welfare clause of the Local Government Code. (Acebedo Optical Company, Inc. v. Court of Appeals, 329 SCRA 314, March 31, 2000, En Banc [Purisima]) 128. How should laws that grant the right to exercise a part of the police power of the State be construed? Held: Lest the idea gets lost in the shoals of our subconsciousness, let us not forget that PAGCOR is engaged in business affected with public interest. The phrase affected with public interest means that an industry is subject to control for the public good (Nebbia v. New York, 291 U.S. 502); it has been considered as the equivalent of subject to the exercise of the police power. (Bernas, The 1987 Constitution of the Republic of the Philippines, A Commentary, 1996 ed., p. 1053) Perforce, a legislative franchise to operate jai-alai is imbued with public interest and involves an exercise of police power. The familiar rule is that laws which grant the right to exercise a part of the police power of the state are to be construed strictly and any doubt must be resolved against the grant (People v. Chicago, 103 N.E. 609; Slaughter v. O Berry, 35 S.E. 241, 48 L.R.A. 442). The legislature is regarded as the guardian of society, and therefore is not presumed to disable itself or abandon the discharge of its duty. Thus, courts do not assume that the legislature intended to part away with its power to regulate public morals (Stone v. Mississippi, 101 U.S. 814). The presumption is influenced by constitutional considerations. Constitutions are widely understood to withhold from legislatures any authority to bargain away their police power (Sutherland Statutory Construction, Vol. 3, 5th ed., p. 244) for the power to protect the public interest is beyond abnegation. It is stressed that the case at bar does not involve a franchise to operate a public utility (such as water, transportation, communication or electricity) the operation of which undoubtedly redounds to the benefit of the general public. What is claimed is an alleged legislative grant of a gambling franchise a franchise to operate jai-alai. A statute which legalizes a gambling activity or business should be strictly construed and every reasonable doubt must be resolved to limit the powers and rights claimed under its authority (Aicardi v. Alabama, 22 L.Ed. 215; West Indies, Inc. v. First National Bank, 214 P.2d 144). (Del Mar v. Philippine Amusement and Gaming Corporation, 346 SCRA 485, Nov. 29, 2000, En Banc [Puno]) 129. Discuss why rates to be charged by public utilities like MERALCO are subject to State regulation.

Held: The regulation of rates to be charged by public utilities is founded upon the police power of the State and statutes prescribing rules for the control and regulations of public utilities are a valid exercise thereof. When private property is used for a public purpose and is affected with public interest, it ceases to be juris privati only and becomes subject to regulation. The regulation is to promote the common good. Submission to regulation may be withdrawn by the owner by discontinuing use; but as long as the use of the property is continued, the same is subject to public regulation (Munn v. People of the State of Illinois, 94 U.S. 113, 126 [1877]).

In regulating rates charged by public utilities, the State protects the public against arbitrary and excessive rates while maintaining the efficiency and quality of services rendered. However, the power to regulate rates does not give the State the right to prescribe rates which are so low as to deprive the public utility of a reasonable return on investment. Thus, the rates prescribed by the State must be one that yields a fair return on the public utility upon the value of the property performing the service and one that is reasonable to the public for the service rendered (IV A.F. Agbayani, Commentaries and Jurisprudence on the Commercial Laws of the Philippines 500 [1993]). The fixing of just and reasonable rates involves a balancing of the investor and the consumer interests (Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591). (Republic of the Philippines v. Manila Electric Company, G.R. No. 141314, Nov. 15, 2002, 3rd Div. [Puno]) 130. What powers of the State are involved in the implementation of the Comprehensive Agrarian Reform Law (CARL)? Discuss. Held: The implementation of the CARL is an exercise of the State s police power and the power of eminent domain. To the extent that the CARL prescribes retention limits to the landowners, there is an exercise of police power for the regulation of private property in accordance with the Constitution (Association of Small Landowners in the Philippines v. Secretary of Agrarian Reform, 175 SCRA 343, 373374 [1989]). But where, to carry out such regulation, the owners are deprived of lands they own in excess of the maximum area allowed, there is also a taking under the power of eminent domain. The taking contemplated is not a mere limitation of the use of the land. What is required is the surrender of the title to and physical possession of the said excess and all beneficial rights accruing to the owner in favor of the farmer beneficiary (Id.). The Bill of Rights provides that [n]o person shall be deprived of life, liberty or property without due process of law. (Section 1, Article III, 1987 Constitution) The CARL was not intended to take away property without due process of law (Development Bank of the Philippines v. Court of Appeals, 262 SCRA 245, 253 [1996]). The exercise of the power of eminent domain requires that due process be observed in the taking of private property. (Roxas & Co., Inc. v. Court of Appeals, 321 SCRA 106, Dec. 17, 1999, En Banc [Puno])

131. Does Article 263(g) of the Labor Code (vesting upon the Secretary of Labor the discretion to determine what industries are indispensable to the national interest and thereafter, assume jurisdiction over disputes in said industries) violate the workers constitutional right to strike? Held: Said article does not interfere with the workers right to strike but merely regulates it, when in the exercise of such right, national interests will be affected. The rights granted by the Constitution are not absolute. They are still subject to control and limitation to ensure that they are not exercised arbitrarily. The interests of both the employers and the employees are intended to be protected and not one of them is given undue preference. The Labor Code vests upon the Secretary of Labor the discretion to determine what industries are indispensable to national interest. Thus, upon the determination of the Secretary of Labor that such industry is indispensable to the national interest, it will assume jurisdiction over the labor dispute of said industry. The assumption of jurisdiction is in the nature of police power measure. This is done for the promotion of the common good considering that a prolonged strike or lockout can be inimical to the national economy. The Secretary of Labor acts to maintain industrial peace. Thus, his certification for compulsory arbitration is not intended to impede the workers right to strike but to obtain a speedy settlement of the dispute. (Philtread Workers Union [PTWU] v. Confesor, 269 SCRA 393, March 12, 1997) 132. May solicitation for religious purposes be subject to proper regulation by the State in the exercise of police power?

Held: The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus, the Constitution embraces two concepts, that is, freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definitions to preserve the enforcement of that protection. In every case, the power to regulate must be so exercised, in attaining a permissible end, as not to unduly infringe on the protected freedom. Whence, even the exercise of religion may be regulated, at some slight inconvenience, in order that the State may protect its citizens from injury. Without doubt, a State may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to act for the cause which he purports to represent. The State is likewise free to regulate the time and manner of solicitation generally, in the interest of public safety, peace, comfort, or convenience. It does not follow, therefore, from the constitutional guarantees of the free exercise of religion that everything which may be so called can be tolerated. It has been said that a law advancing a legitimate governmental interest is not necessarily invalid as one interfering with the free exercise of religion merely because it also incidentally has a detrimental effect on the adherents of one or more religion. Thus, the general regulation, in the public interest, of solicitation, which does not involve any religious test and does not unreasonably obstruct or delay the collection of funds, is not open to any constitutional objection, even though the collection be for a religious purpose. Such regulation would not constitute a prohibited previous restraint on the free exercise of religion or interpose an inadmissible obstacle to its exercise. Even with numerous regulative laws in existence, it is surprising how many operations are carried on by persons and associations who, secreting their activities under the guise of benevolent purposes, succeed in cheating and defrauding a generous public. It is in fact amazing how profitable the fraudulent schemes and practices are to people who manipulate them. The State has authority under the exercise of its police power to determine whether or not there shall be restrictions on soliciting by unscrupulous persons or for unworthy causes or for fraudulent purposes. That solicitation of contributions under the guise of charitable and benevolent purposes is grossly abused is a matter of common knowledge. Certainly the solicitation of contributions in good faith for worthy purposes should not be denied, but somewhere should be lodged the power to determine within reasonable limits the worthy from the unworthy. The objectionable practices of unscrupulous persons are prejudicial to worthy and proper charities which naturally suffer when the confidence of the public in campaigns for the raising of money for charity is lessened or destroyed. Some regulation of public solicitation is, therefore, in the public interest. To conclude, solicitation for religious purposes may be subject to proper regulation by the State in the exercise of police power. (Centeno v. Villalon-Pornillos, 236 SCRA 197, Sept. 1, 1994 [Regalado])

The Power of Eminent Domain 132. What is Eminent Domain?

Held: 1. Eminent domain is the right or power of a sovereign state to appropriate private property to particular uses to promote public welfare. It is an indispensable attribute of sovereignty; a power

grounded in the primary duty of government to serve the common need and advance the general welfare. Thus, the right of eminent domain appertains to every independent government without the necessity for constitutional recognition. The provisions found in modern constitutions of civilized countries relating to the taking of property for the public use do not by implication grant the power to the government, but limit a power which would otherwise be without limit. Thus, our own Constitution provides that [p]rivate property shall not be taken for public use without just compensation. (Art. III, Sec. 9). Furthermore, the due process and equal protection clauses (1987 Constitution, Art. III, Sec. 1) act as additional safeguards against the arbitrary exercise of this governmental power. Since the exercise of the power of eminent domain affects an individual s right to private property, a constitutionally-protected right necessary for the preservation and enhancement of personal dignity and intimately connected with the rights to life and liberty, the need for its circumspect operation cannot be overemphasized. In City of Manila v. Chinese Community of Manila we said (40 Phil. 349 [1919): The exercise of the right of eminent domain, whether directly by the State, or by its authorized agents, is necessarily in derogation of private rights, and the rule in that case is that the authority must be strictly construed. No species of property is held by individuals with greater tenacity, and none is guarded by the Constitution and the laws more sedulously, than the right to the freehold of inhabitants. When the legislature interferes with that right, and, for greater public purposes, appropriates the land of ah individual without his consent, the plain meaning of the law should not be enlarged by doubt[ful] interpretation. (Bensley v. Mountainlake Water Co., 13 Cal., 306 and cases cited [73 Am. Dec., 576]) The statutory power of taking property from the owner without his consent is one of the most delicate exercise of governmental authority. It is to be watched with jealous scrutiny. Important as the power may be to the government, the inviolable sanctity which all free constitutions attach to the right of property of the citizens, constrains the strict observance of the substantial provisions of the law which are prescribed as modes of the exercise of the power, and to protect it from abuse x x x. The power of eminent domain is essentially legislative in nature. It is firmly settled, however, that such power may be validly delegated to local government units, other public entities and public utilities, although the scope of this delegated legislative power is necessarily narrower than that of the delegating authority and may only be exercised in strict compliance with the terms of the delegating law. (Heirs of Alberto Suguitan v. City of Mandaluyong, 328 SCRA 137, 144-146, March 14, 2000, 3rd Div. [Gonzaga-Reyes]) 2. Eminent domain is a fundamental State power that is inseparable from sovereignty. It is government s right to appropriate, in the nature of a compulsory sale to the State, private property for public use or purpose. Inherently possessed by the national legislature, the power of eminent domain may be validly delegated to local governments, other public entities and public utilities. For the taking of private property by the government to be valid, the taking must be for public purpose and there must be just compensation. (Moday v. Court of Appeals, 268 SCRA 586, February 20, 1997) 133. State some limitations on the exercise of the power of Eminent Domain.

Held: The limitations on the power of eminent domain are that the use must be public, compensation must be made and due process of law must be observed. The Supreme Court, taking cognizance of such issues as the adequacy of compensation, necessity of the taking and the public use character or the purpose of the taking, has ruled that the necessity of exercising eminent domain must be genuine and of a public character. Government may not capriciously choose what private property should be taken. (Moday v. Court of Appeals, 268 SCRA 586, February 20, 1997) 134. Discuss the expanded notion of public use in eminent domain proceedings.

Held: The City of Manila, acting through its legislative branch, has the express power to acquire private lands in the city and subdivide these lands into home lots for sale to bona fide tenants or occupants thereof, and to laborers and low-salaried employees of the city. That only a few could actually benefit from the expropriation of the property does not diminish its public character. It is simply not possible to provide all at once land and shelter for all who need them. Corollary to the expanded notion of public use, expropriation is not anymore confined to vast tracts of land and landed estates. It is therefore of no moment that the land sought to be expropriated in this case is less than half a hectare only. Through the years, the public use requirement in eminent domain has evolved into a flexible concept, influenced by changing conditions. Public use now includes the broader notion of indirect public benefit or advantage, including in particular, urban land reform and housing. (Filstream International Incorporated v. CA, 284 SCRA 716, Jan. 23, 1998 [Francisco]) 135. The constitutionality of Sec. 92 of B.P. Blg. 881 (requiring radio and television station owners and operators to give to the Comelec radio and television time free of charge) was challenged on the ground, among others, that it violated the due process clause and the eminent domain provision of the Constitution by taking airtime from radio and television broadcasting stations without payment of just compensation. Petitioners claim that the primary source of revenue of radio and television stations is the sale of airtime to advertisers and that to require these stations to provide free airtime is to authorize a taking which is not a de minimis temporary limitation or restraint upon the use of private property. Will you sustain the challenge? Held: All broadcasting, whether by radio or by television stations, is licensed by the government. Airwave frequencies have to be allocated as there are more individuals who want to broadcast than there are frequencies to assign. A franchise is thus a privilege subject, among other things, to amendment by Congress in accordance with the constitutional provision that any such franchise or right granted x x x shall be subject to amendment, alteration or repeal by the Congress when the common good so requires. (Art. XII, Sec. 11) Indeed, provisions for Comelec Time have been made by amendment of the franchises of radio and television broadcast stations and such provisions have not been thought of as taking property without just compensation. Art. XII, Sec. 11 of the Constitution authorizes the amendment of franchises for the common good. What better measure can be conceived for the common good than one for free airtime for the benefit not only of candidates but even more of the public, particularly the voters, so that they will be fully informed of the issues in an election? [I]t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. Nor indeed can there be any constitutional objection to the requirement that broadcast stations give free airtime. Even in the United States, there are responsible scholars who believe that government controls on broadcast media can constitutionally be instituted to ensure diversity of views and attention to public affairs to further the system of free expression. For this purpose, broadcast stations may be required to give free airtime to candidates in an election. In truth, radio and television broadcasting companies, which are given franchises, do not own the airwaves and frequencies through which they transmit broadcast signals and images. They are merely given the temporary privilege of using them. Since a franchise is a mere privilege, the exercise of the privilege may reasonably be burdened with the performance by the grantee of some form of public service.

In the granting of the privilege to operate broadcast stations and thereafter supervising radio and television stations, the State spends considerable public funds in licensing and supervising such stations. It would be strange if it cannot even require the licensees to render public service by giving free airtime. The claim that petitioner would be losing P52,380,000.00 in unrealized revenue from advertising is based on the assumption that airtime is finished product which, it is said, become the property of the company, like oil produced from refining or similar natural resources after undergoing a process for their production. As held in Red Lion Broadcasting Co. v. F.C.C. (395 U.S. at 394, 23 L. Ed. 2d at 391, quoting 47 U.S.C. Sec. 301), which upheld the right of a party personally attacked to reply, licenses to broadcast do not confer ownership of designated frequencies, but only the temporary privilege of using them. Consequently, a license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves. As radio and television broadcast stations do not own the airwaves, no private property is taken by the requirement that they provide airtime to the Comelec. (TELEBAP, Inc. v. COMELEC, 289 SCRA 337, April 21, 1998 [Mendoza]) 136. May eminent domain be barred by "res judicata" or "law of the case"?

Held: The principle of res judicata, which finds application in generally all cases and proceedings, cannot bar the right of the State or its agents to expropriate private property. The very nature of eminent domain, as an inherent power of the State, dictates that the right to exercise the power be absolute and unfettered even by a prior judgment or res judicata. The scope of eminent domain is plenary and, like police power, can reach every form of property which the State might need for public use. All separate interests of individuals in property are held of the government under this tacit agreement or implied reservation. Notwithstanding the grant to individuals, the eminent domain, the highest and most exact idea of property, remains in the government, or in the aggregate body of the people in their sovereign capacity; and they have the right to resume the possession of the property whenever the public interest requires it. Thus, the State or its authorized agent cannot be forever barred from exercising said right by reason alone of previous non-compliance with any legal requirement. While the principle of res judicata does not denigrate the right of the State to exercise eminent domain, it does apply to specific issues decided in a previous case. For example, a final judgment dismissing an expropriation suit on the ground that there was no prior offer precludes another suit raising the same issue; it cannot, however, bar the State or its agent from thereafter complying with this requirement, as prescribed by law, and subsequently exercising its power of eminent domain over the same property. (Municipality of Paranaque v. V.M. Realty Corporation, 292 SCRA 678, July 20, 1998 [Panganiban]) 137. Discuss how expropriation may be initiated, and the two stages in expropriation.

Held: Expropriation may be initiated by court action or by legislation. In both instances, just compensation is determined by the courts (EPZA v. Dulay, 149 SCRA 305 [1987]). The expropriation of lands consists of two stages. As explained in Municipality of Binan v. Garcia (180 SCRA 576, 583-584 [1989], reiterated in National Power Corp. v. Jocson, 206 SCRA 520 [1992]): The first is concerned with the determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts involved in the suit. It ends with an order, if not dismissal of the action, "of condemnation declaring that the plaintiff has a lawful right to take the property sought to be condemned, for the public use or purpose declared in the

complaint, upon the payment of just compensation to be determined as of the date of the filing of the complaint" x x x. The second phase of the eminent domain action is concerned with the determination by the court of "the just compensation for the property sought to be taken." This is done by the court with the assistance of not more than three (3) commissioners x x x. It is only upon the completion of these two stages that expropriation is said to have been completed. Moreover, it is only upon payment of just compensation that title over the property passes to the government. Therefore, until the action for expropriation has been completed and terminated, ownership over the property being expropriated remains with the registered owner. Consequently, the latter can exercise all rights pertaining to an owner, including the right to dispose of his property, subject to the power of the State ultimately to acquire it through expropriation. (Republic v. Salem Investment Corporation, et. al., G.R. No. 137569, June 23, 2000, 2nd Div. [Mendoza]) 138. Does the two (2) stages in expropriation apply only to judicial, and not to legislative, expropriation? Held: The De la Ramas are mistaken in arguing that the two stages of expropriation x x x only apply to judicial, and not to legislative, expropriation. Although Congress has the power to determine what land to take, it can not do so arbitrarily. Judicial determination of the propriety of the exercise of the power, for instance, in view of allegations of partiality and prejudice by those adversely affected, and the just compensation for the subject property is provided in our constitutional system. We see no point in distinguishing between judicial and legislative expropriation as far as the two stages mentioned above are concerned. Both involve these stages and in both the process is not completed until payment of just compensation is made. The Court of Appeals was correct in saying that B.P. Blg. 340 did not effectively expropriate the land of the De la Ramas. As a matter of fact, it merely commenced the expropriation of the subject property. Xxx The De la Ramas make much of the fact that ownership of the land was transferred to the government because the equitable and the beneficial title was already acquired by it in 1983, leaving them with only the naked title. However, as this Court held in Association of Small Landowners in the Phil., Inc. v. Secretary of Agrarian Reform (175 SCRA 343, 389 [1989]): The recognized rule, indeed, is that title to the property expropriated shall pass from the owner to the expropriator only upon full payment of the just compensation. Jurisprudence on this settled principle is consistent both here and in other democratic jurisdictions. X x x (Republic v. Salem Investment Corporation, et. al., G.R. No. 137569, June 23, 2000, 2nd Div. [Mendoza]) 139. Is prior unsuccessful negotiation a condition precedent for the exercise of eminent domain?

Held: Citing Iron and Steel Authority v. Court of Appeals (249 SCRA 538, October 25, 1995), petitioner insists that before eminent domain may be exercised by the state, there must be a showing of prior unsuccessful negotiation with the owner of the property to be expropriated. This contention is not correct. As pointed out by the Solicitor General the current effective law on delegated authority to exercise the power of eminent domain is found in Section 12, Book III of the Revised Administrative Code, which provides:

SEC. 12. Power of Eminent Domain The President shall determine when it is necessary or advantageous to exercise the power of eminent domain in behalf of the National Government, and direct the Solicitor General, whenever he deems the action advisable, to institute expropriation proceedings in the proper court. The foregoing provision does not require prior unsuccessful negotiation as a condition precedent for the exercise of eminent domain. In Iron and Steel Authority v. Court of Appeals, the President chose to prescribe this condition as an additional requirement instead. In the instant case, however, no such voluntary restriction was imposed. (SMI Development Corporation v. Republic, 323 SCRA 862, Jan. 28, 2000, 3rd Div. [Panganiban])

140.

Discuss the nature of the right of eminent domain and the limitations thereof.

Held: The right of eminent domain is usually understood to be an ultimate right of the sovereign power to appropriate any property within its territorial sovereignty for a public purpose (Bernas, 1987 Edition, p. 276, quoting Justice Story in Charles River Bridge v. Warren Bridge). Fundamental to the independent existence of a State, it requires no recognition by the Constitution, whose provisions are taken as being merely confirmatory of its presence and as being regulatory, at most, in the due exercise of the power. In the hands of the legislature, the power is inherent, its scope matching that of taxation, even that of police power itself, in many respects. It reaches to every form of property the State needs for public use and, as an old case so puts it, all separate interests of individuals in property are held under a tacit agreement or implied reservation vesting upon the sovereign the right to resume the possession of the property whenever the public interest so requires it (US v. Certain Lands in Highlands [DY NY] 48 F Supp 306). The ubiquitous character of eminent domain is manifest in the nature of the expropriation proceedings. Expropriation proceedings are not adversarial in the conventional sense, for the condemning authority is not required to assert any conflicting interest in the property. Thus, by filing the action, the condemnor in effect merely serves notice that it is taking title and possession of the property, and the defendant asserts title or interest in the property, not to prove a right to possession, but to prove a right to compensation for the taking (US v. Certain Lands in Highlands [DY NY] 48 F Supp 306; San Bernardino Valley Municipal Water District v. Gage Canal Co. [4th Dist] Cal App 2d 206, 37 Cal Rptr 856). Obviously, however, the power is not without its limits: first, the taking must be for public use, and second, that just compensation must be given to the private owner of the property (Sena v. Manila Railroad Co., 42 Phil. 102). These twin proscriptions have their origin in the recognition of the necessity for achieving balance between the State interests, on the one hand, and private rights, upon the other hand, by effectively restraining the former and affording protection to the latter (Visayan Refining Co. v. Camus, 40 Phil. 550). In determining public use, two approaches are utilized the first is public employment or the actual use by the public, and the second is public advantage or benefit (Thornton Development authority v. Upah [DC Colo] 640 F Supp 1071). It is also useful to view the matter as being subject to constant growth, which is to say that as society advances, its demands upon the individual so increases, and each demand is a new use to which the resources of the individual may be devoted (Visayan Refining, supra). (Republic of the Philippines v. The Hon. Court of Appeals, G.R. No. 146587, July 2, 2002, 1st Div. [Vitug]) 141. What is the meaning of public use in eminent domain proceedings? Illustrative case.

Held: This Court holds that respondent (Philippine Export Processing Zone) has the legal authority to expropriate the subject Lot 1406-B and that the same was for a valid public purpose. In Sumulong v. Guerrero (154 SCRA 461, 467-468 [1987]), this Court has ruled that, The public use requirement for a valid exercise of the power of eminent domain is a flexible and evolving concept influenced by changing conditions. In this jurisdiction, the statutory and judicial trend has been summarized as follows:

This Court has ruled that the taking to be valid must be for public use. There was a time when it was felt that a literal meaning should be attached to such a requirement. Whatever project is undertaken must be for the public to enjoy, as in the case of streets or parks. Otherwise, expropriation is not allowable. It is not anymore. As long as the purpose of the taking is public, then the power of eminent domain comes into play . . . It is accurate to state then that at present whatever may be beneficially employed for the general welfare satisfies the requirement of public use. (Heirs of Juancho Ardona v. Reyes, 125 SCRA 220 [1983] at 234-235 quoting E. Fernando, the Constitution of the Philippines 523-4 [2nd Ed. 1977]) The term public use has acquired a more comprehensive coverage. To the literal import of the term signifying strict use or employment by the public has been added the broader notion of indirect public benefit or advantage. In Manosca v. Court of Appeals, this Court has also held that what ultimately emerged is a concept of public use which is just as broad as public welfare. (252 SCRA 412, 422 [1996], quoting Joaquin Bernas, The Constitution of the Republic of the Philippines, Vol. 1, 1987 ed., p. 282) Respondent PEZA expropriated the subject parcel of land pursuant to Proclamation No. 1980 x x x issued by former President Ferdinand Marcos. Meanwhile, the power of eminent domain of respondent is contained in its original charter, Presidential Decree No. 66 x x x. Accordingly, subject Lot 1406-B was expropriated for the construction . . . of terminal facilities, structures and approaches thereto. The authority is broad enough to give the respondent substantial leeway in deciding for what public use the expropriated property would be utilized. Pursuant to this broad authority, respondent leased a portion of the lot to commercial banks while the rest was made a transportation terminal. Said public purposes were even reaffirmed by Republic Act No. 7916, a law amending respondent PEZA s original charter x x x. In Manila Railroad Co. v. Mitchel (50 Phil. 832, 837-838 [1927]), this Court has ruled that in the exercise of eminent domain, only as much land can be taken as is necessary for the legitimate purpose of the condemnation. The term necessary, in this connection, does not mean absolutely indispensable but requires only a reasonable necessity of the taking for the stated purpose, growth and future needs of the enterprise. The respondent cannot attain a self-sustaining and viable ECOZONE if inevitable needs in the expansion in the surrounding areas are hampered by the mere refusal of the private landowners to part with their properties. The purpose of creating an ECOZONE and other facilities is better served if respondent directly owns the areas subject of the expansion program. X x x. The expropriation of Lot 1406-B for the purpose of being leased to banks and for the construction of a terminal has the purpose of making banking and transportation facilities easily accessible to the persons working at the industries located in PEZA. The expropriation of adjacent areas therefore comes as a matter of necessity to bring life to the purpose of the law. In such a manner, PEZA s goal of being a major force in the economic development of the country would be realized. Furthermore, this Court has already ruled that: X x x [T]he Legislature may directly determine the necessity for appropriating private property for a particular improvement for public use, and it may select the exact location of the improvement. In such a case, it is well-settled that the utility of the proposed improvement, the existence of the public necessity for its construction, the expediency of constructing it, the suitableness of the location selected, are all questions exclusively for the legislature to determine, and the courts have no power to interfere or to substitute their own views for those of the representatives of the people.

In the absence of some constitutional or statutory provisions to the contrary, the necessity and expediency of exercising the right of eminent domain are questions essentially political and not judicial in their character. (City of Manila v. Chinese Community of Manila, 40 Phil. 349 [1919]) Inasmuch as both Presidential Decree No. 66 and Republic Act No. 7916, bestow respondent with authority to develop terminal facilities and banking centers, this Court will not question the respondent s lease of certain portions of the expropriated lot to banks, as well as the construction of terminal facilities. Petitioner contends that respondent is bound by the representations of its Chief Civil Engineer when the latter testified before the trial court that the lot was to be devoted for the construction of government offices. Anent this issue, suffice it to say that PEZA can vary the purpose for which a condemned lot will be devoted to, provided that the same is for public use. Petitioner cannot impose or dictate on the respondent what facilities to establish for as long as the same are for public purpose. (Estate of Salud Jimenez v. PEZA, 349 SCRA 240, Jan. 16, 2001, 2nd Div. [De Leon]) 142. Discuss the meaning of just compensation in eminent domain proceedings. Does it include the payment of interest and, if so, how is it to be computed? Held: 1. The constitutional limitation of just compensation is considered to be the sum equivalent to the market value of the property, broadly described to be the price fixed by the seller in open market in the usual and ordinary course of legal action and competition or the fair value of the property as between one who receives, and one who desires to sell, it fixed at the time of the actual taking by the government (Manila Railway Co. v. Fabie, 17 Phil. 206). Thus, if property is taken for public use before compensation is deposited with the court having jurisdiction over the case, the final compensation must include interests on its just value to be computed from the time the property is taken to the time when compensation is actually paid or deposited with the court (Philippine Railway Co. v. Solon, 13 Phil. 34). In fine, between the taking of the property and the actual payment, legal interests accrue in order to place the owner in a position as good as (but not better than) the position he was in before the taking occurred (Commissioner of Public Highways v. Burgos, 96 SCRA 831). (Republic of the Philippines v. The Hon. Court of Appeals, G.R. No. 146587, July 2, 2002, 1st Div. [Vitug]) 2. We have ruled that the concept of just compensation embraces not only the correct determination of the amount to be paid to the owners of the land, but also the payment of the land within a reasonable time from its taking. Without prompt payment, compensation cannot be considered just inasmuch as the property owner is made to suffer the consequences of being immediately deprived of his land while being made to wait for a decade or more before actually receiving the amount necessary to cope with his loss (Land Bank of the Philippines v. Court of Appeals, 258 SCRA 404, 408-409 [1996] quoting Municipality of Makati v. Court of Appeals, 190 SCRA 207, 213 [1990]). Payment of just compensation should follow as a matter of right immediately after the order of expropriation is issued. Any delay in payment must be counted from said order. However, the delay to constitute a violation of due process must be unreasonable and inexcusable; it must be deliberately done by a party in order to defeat the ends of justice. We find that respondent capriciously evaded its duty of giving what is due to petitioner. In the case at bar, the expropriation order was issued by the trial court in 1991. The compromise agreement between the parties was approved by the trial court in 1993. However, from 1993 up to the present, respondent has failed in its obligation to pay petitioner to the prejudice of the latter. Respondent cause damage to petitioner in making the latter to expect that it had a good title to the property to be swapped with Lot 1406-B; and meanwhile, respondent has been reaping benefits from the lease or rental income of the said expropriated lot. We cannot tolerate this oppressive exercise of the power of eminent domain by respondent. As we have ruled in Cosculluela v. Court of Appeals (164 SCRA 393, 401 [1988]): In the present case, the irrigation project was completed and has been in operation since 1976. The project is benefiting the farmers specifically and the community in general. Obviously, petitioner s land cannot be returned to him. However, it is high time that the petitioner be paid what has been due him

eleven years ago. It is arbitrary and capricious for a government agency to initiate expropriation proceedings, seize a person s property, allow the judgment of the court to become final and executory and then refuse to pay on the ground that there was no appropriations for the property earlier taken and profitably used. We condemn in the strongest possible terms the cavalier attitude of government officials who adopt such a despotic and irresponsible stance. (Estate of Salud Jimenez v. PEZA, 349 SCRA 240, Jan. 16, 2001, 2nd Div. [De Leon]) 143. When may the property owner be entitled to the return of the expropriated property in eminent domain cases? Held: 1. In insisting on the return of the expropriated property, respondents would exhort on the pronouncement in Provincial Government of Sorsogon v. Vda. De Villaroya (153 SCRA 291) where the unpaid landowners were allowed the alternative remedy of recovery of the property there in question. It might be borne in mind that the case involved the municipal government of Sorsogon, to which the power of eminent domain is not inherent, but merely delegated and of limited application. The grant of the power of eminent domain to local governments under Republic Act No. 7160 (See Local Government Code of 1991) cannot be understood as being the pervasive and all-encompassing power vested in the legislative branch of government. For local governments to be able to wield the power, it must, by enabling law, be delegated to it by the national legislature, but even then, this delegated power of eminent domain is not, strictly speaking, a power of eminent, but only of inferior, domain or only as broad or confined as the real authority would want it to be (City of Manila v. Chinese Cemetery of Manila, 40 Phil. 349). Thus, in Valdehueza v. Republic (17 SCRA 107) where the private landowners had remained unpaid ten years after the termination of the expropriation proceedings, this Court ruled The points in dispute are whether such payment can still be made and, if so, in what amount. Said lots have been the subject of expropriation proceedings. By final and executory judgment in said proceedings, they were condemned for public use, as part of an airport, and ordered sold to the government. X x x It follows that both by virtue of the judgment, long final, in the expropriation suit, as well as the annotations upon their title certificates, plaintiffs are not entitled to recover possession of their expropriated lots which are still devoted to the public use for which they were expropriated but only to demand the fair market value of the same. Said relief may be granted under plaintiffs prayer for: such other remedies, which may be deemed just and equitable under the premises. (At p. 112) The Court proceeded to reiterate its pronouncement in Alfonso v. Pasay City (106 Phil. 1017) where the recovery of possession of property taken for public use prayed for by the unpaid landowner was denied even while no requisite expropriation proceedings were first instituted. The landowner was merely given the relief of recovering compensation for his property computed at its market value at the time it was taken and appropriated by the State. The judgment rendered by the Bulacan RTC in 1979 on the expropriation proceedings provides not only for the payment of just compensation to herein respondents but likewise adjudges the property condemned in favor of petitioner over which parties, as well as their privies, are bound (Mines v. Canal Authority of the State [Fla] 467 So2d 989, 10 FLW 230). Petitioner has occupied, utilized and, for all intents and purposes, exercised dominion over the property pursuant to the judgment. The exercise of such rights vested to it as the condemnee indeed has amounted to at least a partial compliance or satisfaction of the 1979 judgment, thereby preempting any claim of bar by prescription on grounds of non-execution. In arguing for the return of their property on the basis of nonpayment, respondents ignore the fact that the right of the expropriatory authority is far from that of an unpaid seller in ordinary sales, to which the remedy of rescission might perhaps apply. An in rem proceeding, condemnation acts upon the property (Cadorette v. US CCA [Mass] 988 F2d 215). After condemnation, the paramount title is in the public under a new and independent title (Ibid.); thus, by giving notice to all claimants to a disputed title, condemnation proceedings provide a judicial process for securing better title against all the world than may be obtained by voluntary conveyance (Ibid.). (Republic of the Philippines v. The Hon. Court of Appeals, G.R. No. 146587, July 2, 2002, 1st Div. [Vitug])

2. Though the respondent has committed a misdeed to petitioner, we cannot, however, grant the petitioner s prayer for the return of the expropriated Lot No. 1406-B. The Order of expropriation dated July 11, 1991, has long become final and executory. Petitioner cited Provincial Government of Sorsogon v. Rosa E. Vda. De Villaroya (153 SCRA 291, 302 [1987]) to support its contention that it is entitled to a return of the lot where this Court ruled that under ordinary circumstances, immediate return to the owners of the unpaid property is the obvious remedy. However, the said statement was not the ruling in that case. As in other cases where there was no prompt payment by the government, this Court declared in Sorsogon that the Provincial Government of Sorsogon is expected to immediately pay as directed. Should any further delay be encountered, the trial court is directed to seize any patrimonial property or cash savings of the province in the amount necessary to implement this decision. However, this Court also stressed and declared in that case that in cases where land is taken for public use, public interest, however, must be considered. (Estate of Salud Jimenez v. PEZA, 349 SCRA 240, Jan. 16, 2001, 2nd Div. [De Leon])

The Power of Taxation 144. Can taxes be subject to off-setting or compensation?

Held: Taxes cannot be subject to compensation for the simple reason that the government and the taxpayer are not creditors and debtors of each other. There is a material distinction between a tax and debt. Debts are due to the Government in its corporate capacity, while taxes are due to the Government in its sovereign capacity. It must be noted that a distinguishing feature of a tax is that it is compulsory rather than a matter of bargain. Hence, a tax does not depend upon the consent of the taxpayer. If any taxpayer can defer the payment of taxes by raising the defense that it still has a pending claim for refund or credit, this would adversely affect the government revenue system. A taxpayer cannot refuse to pay his taxes when they fall due simply because he has a claim against the government or that the collection of a tax is contingent on the result of the lawsuit it filed against the government. (Philex Mining Corporation v. Commissioner of Internal Revenue, 294 SCRA 687, Aug. 28, 1998 [Romero]) 145. Under Article VI, Section 28, paragraph 3 of the 1987 Constitution, "[C]haritable institutions, churches and parsonages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly and exclusively used for religious, charitable or educational purposes shall be exempt from taxation." YMCA claims that the income earned by its building leased to private entities and that of its parking space is likewise covered by said exemption. Resolve. Held: The debates, interpellations and expressions of opinion of the framers of the Constitution reveal their intent that which, in turn, may have guided the people in ratifying the Charter. Such intent must be effectuated. Accordingly, Justice Hilario G. Davide, Jr., a former constitutional commissioner, who is now a member of this Court, stressed during the Concom debates that "x x x what is exempted is not the institution itself x x x; those exempted from real estate taxes are lands, buildings and improvements actually, directly and exclusively used for religious, charitable or educational purposes. Father Joaquin G. Bernas, an eminent authority on the Constitution and also a member of the Concom, adhered to the same view that the exemption created by said provision pertained only to property taxes. In his treatise on taxation, Mr. Justice Jose C. Vitug concurs, stating that "[t]he tax exemption covers property taxes only." (Commissioner of Internal Revenue v. CA, 298 SCRA 83, Oct. 14, 1998 [Panganiban])

146. Under Article XIV, Section 4, paragraph 3 of the 1987 Constitution, "[A]ll revenues and assets of non-stock, non-profit educational institutions used actually, directly, and exclusively for educational purposes shall be exempt from taxes and duties." YMCA alleged that it "is a non-profit educational institution whose revenues and assets are used actually, directly and exclusively for educational purposes so it is exempt from taxes on its properties and income." Held: We reiterate that private respondent is exempt from the payment of property tax, but not income tax on the rentals from its property. The bare allegation alone that it is a non-stock, non-profit educational institution is insufficient to justify its exemption from the payment of income tax. [L]aws allowing tax exemption are construed strictissimi juris. Hence, for the YMCA to be granted the exemption it claims under the abovecited provision, it must prove with substantial evidence that (1) it falls under the classification non-stock, non-profit educational institution; and (2) the income it seeks to be exempted from taxation is used actually, directly, and exclusively for educational purposes. However, the Court notes that not a scintilla of evidence was submitted by private respondent to prove that it met the said requisites. (Commissioner of Internal Revenue v. CA, 298 SCRA 83, Oct. 14, 1998 [Panganiban]) 147. Is the YMCA an educational institution within the purview of Article XIV, Section 4, par. 3 of the Constitution? Held: We rule that it is not. The term "educational institution" or "institution of learning" has acquired a well-known technical meaning, of which the members of the Constitutional Commission are deemed cognizant. Under the Education Act of 1982, such term refers to schools. The school system is synonymous with formal education, which "refers to the hierarchically structured and chronologically graded learnings organized and provided by the formal school system and for which certification is required in order for the learner to progress through the grades or move to the higher levels." The Court has examined the "Amended Articles of Incorporation" and "By-Laws" of the YMCA, but found nothing in them that even hints that it is a school or an educational institution. Furthermore, under the Education Act of 1982, even non-formal education is understood to be schoolbased and "private auspices such as foundations and civic-spirited organizations" are ruled out. It is settled that the term "educational institution," when used in laws granting tax exemptions, refers to a "x x x school seminary, college or educational establishment x x x." (84 CJS 566) Therefore, the private respondent cannot be deemed one of the educational institutions covered by the constitutional provision under consideration. (Commissioner of Internal Revenue v. CA, 298 SCRA 83, Oct. 14, 1998 [Panganiban]) 148. May the PCGG validly commit to exempt from all forms of taxes the properties to be retained by the Marcos heirs in a Compromise Agreement between the former and the latter? Held: The power to tax and to grant exemptions is vested in the Congress and, to a certain extent, in the local legislative bodies. Section 28(4), Article VI of the Constitution, specifically provides: No law granting any tax exemption shall be passed without the concurrence of a majority of all the members of the Congress. The PCGG has absolutely no power to grant tax exemptions, even under the cover of its authority to compromise ill-gotten wealth cases. Even granting that Congress enacts a law exempting the Marcoses from paying taxes on their properties, such law will definitely not pass the test of the equal protection clause under the Bill of Rights. Any special grant of tax exemption in favor only of the Marcos heirs will constitute class legislation. It will also violate the constitutional rule that taxation shall be uniform and equitable. (Chavez v. PCGG, 299 SCRA 744, Dec. 9, 1998 [Panganiban])

149.

Discuss the purpose of tax treaties?

Held: The RP-US Tax Treaty is just one of a number of bilateral treaties which the Philippines has entered into for the avoidance of double taxation. The purpose of these international agreements is to reconcile the national fiscal legislations of the contracting parties in order to help the taxpayer avoid simultaneous taxation in two different jurisdictions. More precisely, the tax conventions are drafted with a view towards the elimination of international juridical double taxation x x x. (Commissioner of Internal Revenue v. S.C. Johnson and Son, Inc., 309 SCRA 87, 101-102, June 25, 1999, 3rd Div. [Gonzaga-Reyes]) 150. What is "international juridical double taxation"?

Held: It is defined as the imposition of comparable taxes in two or more states on the same taxpayer in respect of the same subject matter and for identical periods. (Commissioner of Internal Revenue v. S.C. Johnson and Son, Inc., 309 SCRA 87, 102, June 25, 1999) 151. What is the rationale for doing away with international juridical double taxation? What are the methods resorted to by tax treaties to eliminate double taxation? Held: The apparent rationale for doing away with double taxation is to encourage the free flow of goods and services and the movement of capital, technology and persons between countries, conditions deemed vital in creating robust and dynamic economies. Foreign investments will only thrive in a fairly predictable and reasonable international investment climate and the protection against double taxation is crucial in creating such a climate. Double taxation usually takes place when a person is resident of a contracting state and derives income from, or owns capital in, the other contracting state and both states impose tax on that income or capital. In order to eliminate double taxation, a tax treaty resorts to several methods. First, it sets out the respective rights to tax of the state of source or situs and of the state of residence with regard to certain classes of income or capital. In some cases, an exclusive right to tax is conferred on one of the contracting states; however, for other items of income or capital, both states are given the right to tax, although the amount of tax that may be imposed by the state of source is limited. The second method for the elimination of double taxation applies whenever the state of source is given a full or limited right to tax together with the state of residence. In this case, the treaties make it incumbent upon the state of residence to allow relief in order to avoid double taxation. There are two methods of relief - the exemption method and the credit method. In the exemption method, the income or capital which is taxable in the state of source or situs is exempted in the state of residence, although in some instances it may be taken into account in determining the rate of tax applicable to the taxpayer's remaining income or capital. On the other hand, in the credit method, although the income or capital which is taxed in the state of source is still taxable in the state of residence, the tax paid in the former is credited against the tax levied in the latter. The basic difference between the two methods is that in the exemption method, the focus is on the income or capital itself, whereas the credit method focuses upon the tax. (Commissioner of Internal Revenue v. S.C. Johnson and Son, Inc., 309 SCRA 87, 102103, June 25, 1999) 152. What is the rationale for reducing the tax rate in negotiating tax treaties?

Held: In negotiating tax treaties, the underlying rationale for reducing the tax rate is that the Philippines will give up a part of the tax in the expectation that the tax given up for this particular investment is not taxed by the other country. (Commissioner of Internal Revenue v. S.C. Johnson and Son, Inc., 309 SCRA 87, 103, June 25, 1999)

B. THE BILL OF RIGHTS The Due Process Clause 153. Discuss the Due Process Clause. process. Distinguish substantive due process from procedural due

Held: 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." (Corona v. United Harbor Pilots Association of the Phils., 283 SCRA 31, Dec. 12, 1997 [Romero]) 154. Respondents United Harbor Pilots Association of the Philippines argue that due process was not observed in the adoption of PPA-AO No. 04-92 which provides that: (a)ll existing regular appointments which have been previously issued by the Bureau of Customs or the PPA shall remain valid up to 31 December 1992 only, and (a)ll appointments to harbor pilot positions in all pilotage districts shall, henceforth, be only for a term of one (1) year from date of effectivity subject to renewal or cancellation by the Philippine Ports Authority after conduct of a rigid evaluation of performance, allegedly because no hearing was conducted whereby relevant government agencies and the harbor pilots themselves could ventilate their views. They also contended that the sole and exclusive right to the exercise of harbor pilotage by pilots has become vested and can only be withdrawn or shortened by observing the constitutional mandate of due process of law. Held: They are obviously referring to the procedural aspect of the enactment. Fortunately, the Court has maintained a clear position in this regard, a stance it has stressed in the recent case of Lumiqued v. Hon. Exevea (G.R. No. 117565, November 18, 1997), where it declared that (a)s long as a party was given the opportunity to defend his interests in due course, he cannot be said to have been denied due process of law, for this opportunity to be heard is the very essence of due process. Moreover, this constitutional mandate is deemed satisfied if a person is granted an opportunity to seek reconsideration of the action or ruling complained of. In the case at bar, respondents questioned PPA-AO No. 04-92 no less than four times before the matter was finally elevated to this Tribunal. Their arguments on this score, however, failed to persuade. X x x Neither does the fact that the pilots themselves were not consulted in any way taint the validity of the administrative order. As a general rule, notice and hearing, as the fundamental requirements of procedural due process, are essential only when an administrative body exercises its quasi-judicial function. In the performance of its executive or legislative functions, such as issuing rules and regulations, an administrative body need not comply with the requirements of notice and hearing. Upon the other hand, it is also contended that the sole and exclusive right to the exercise of harbor pilotage by pilots is a settled issue. Respondents aver that said right has become vested and can only be withdrawn or shortened by observing the constitutional mandate of due process of law. Their argument has thus shifted from the procedural to one of substance. It is here where PPA-AO No. 04-92 fails to meet the condition set by the organic law.

Pilotage, just like other professions, may be practiced only by duly licensed individuals. Licensure is the granting of license especially to practice a profession. It is also the system of granting licenses (as for professional practice) in accordance with established standards. A license is a right or permission granted by some competent authority to carry on a business or do an act which, without such license, would be illegal. Before harbor pilots can earn a license to practice their profession, they literally have to pass through the proverbial eye of a needle by taking, not one but five examinations, each followed by actual training and practice. X x x Their license is granted in the form of an appointment which allows them to engage in pilotage until they retire at the age of 70 years. This is a vested right. Under the terms of PPA-AO No. 04-92, [a]ll existing regular appointments which have been previously issued by the Bureau of Customs or the PPA shall remain valid up to 31 December 1992 only, and (a)ll appointments to harbor pilot positions in all pilotage districts shall, henceforth, be only for a term of one (1) year from date of effectivity subject to renewal or cancellation by the Authority after conduct of a rigid evaluation of performance. It is readily apparent that PPA-AO No. 04-92 unduly restricts the right of harbor pilots to enjoy their profession before their compulsory retirement. In the past, they enjoyed a measure of security knowing that after passing five examinations and undergoing years of on-the-job training, they would have a license which they could use until their retirement, unless sooner revoked by the PPA for mental or physical unfitness. Under the new issuance, they have to contend with an annual cancellation of their license which can be temporary or permanent depending on the outcome of their performance evaluation. Veteran pilots and neophytes alike are suddenly confronted with one-year terms which ipso facto expire at the end of that period. Renewal of their license is now dependent on a rigid evaluation of performance which is conducted only after the license has already been cancelled. Hence, the use of the term renewal. It is this pre-evaluation cancellation which primarily makes PPA-AO No. 04-92 unreasonable and constitutionally infirm. In a real sense, it is a deprivation of property without due process of law. (Corona v. United Harbor Pilots Association of the Phils., 283 SCRA 31, December 12, 1997 [Romero]) 155. Does the due process clause encompass the right to be assisted by counsel during an administrative inquiry? Held: The right to counsel, which cannot be waived unless the waiver is in writing and in the presence of counsel, is a right afforded a suspect or an accused during custodial investigation. It is not an absolute right and may, thus, be invoked or rejected in a criminal proceeding and, with more reason, in an administrative inquiry. In the case at bar, petitioners invoke the right of an accused in criminal proceedings to have competent and independent counsel of his own choice. Lumiqued, however, was not accused of any crime in the proceedings below. The investigation conducted by the committee x x x was for the sole purpose of determining if he could be held administratively liable under the law for the complaints filed against him. x x x As such, the hearing conducted by the investigating committee was not part of a criminal prosecution. X x x While investigations conducted by an administrative body may at times be akin to a criminal proceeding, the fact remains that under existing laws, a party in an administrative inquiry may or may not be assisted by counsel, irrespective of the nature of the charges and of the respondent's capacity to represent himself, and no duty rests on such a body to furnish the person being investigated with counsel. In an administrative proceeding x x x a respondent x x x has the option of engaging the services of counsel or not. x x x Thus, the right to counsel is not imperative in administrative investigations because such inquiries are conducted merely to determine whether there are facts that merit disciplinary measures against erring public officers and employees, with the purpose of maintaining the dignity of government service.

The right to counsel is not indispensable to due process unless required by the Constitution or the law. X x x. (Lumiqued v. Exevea, 282 SCRA 125, Nov. 18, 1997 [Romero]) 156. Does an extraditee have the right to notice and hearing during the evaluation stage of an extradition proceeding? Held: Considering that in the case at bar, the extradition proceeding is only at its evaluation stage, the nature of the right being claimed by the private respondent is nebulous and the degree of prejudice he will allegedly suffer is weak, we accord greater weight to the interests espoused by the government thru the petitioner Secretary of Justice. X x x In tilting the balance in favor of the interests of the State, the Court stresses that it is not ruling that the private respondent has no right to due process at all throughout the length and breadth of the extradition proceedings. Procedural due process requires a determination of what process is due, when it is due, and the degree of what is due. Stated otherwise, a prior determination should be made as to whether procedural protections are at all due and when they are due, which in turn depends on the extent to which an individual will be "condemned to suffer grievous loss." We have explained why an extraditee has no right to notice and hearing during the evaluation stage of the extradition process. As aforesaid, P.D. No. 1069 which implements the RP-US Extradition Treaty affords an extraditee sufficient opportunity to meet the evidence against him once the petition is filed in court. The time for the extraditee to know the basis of the request for his extradition is merely moved to the filing in court of the formal petition for extradition. The extraditee's right to know is momentarily withheld during the evaluation stage of the extradition process to accommodate the more compelling interest of the State to prevent escape of potential extraditees which can be precipitated by premature information of the basis of the request for his extradition. No less compelling at that stage of the extradition proceedings is the need to be more deferential to the judgment of a co-equal branch of the government, the Executive, which has been endowed by our Constitution with greater power over matters involving our foreign relations. Needless to state, this balance of interests is not a static but a moving balance which can be adjusted as the extradition process moves from the administrative stage to the judicial stage and to the execution stage depending on factors that will come into play. In sum, we rule that the temporary hold on private respondent's privilege of notice and hearing is a soft restraint on his right to due process which will not deprive him of fundamental fairness should he decide to resist the request for his extradition to the United States. There is no denial of due process as long as fundamental fairness is assured a party. (Secretary of Justice v. Hon. Ralph C. Lantion, G.R. No. 139465, Oct. 17, 2000, En Banc [Puno])

157. Will Mark Jimenez s detention prior to the conclusion of the extradition proceedings not amount to a violation of his right to due process? Held: Contrary to his contention, his detention prior to the conclusion of the extradition proceedings does not amount to a violation of his right to due process. We iterate the familiar doctrine that the essence of due process is the opportunity to be heard (Garcia v. NLRC, GR No. 110494, November 18, 1996; Paat v. Court of Appeals, January 10, 1997) but, at the same time, point out that the doctrine does not always call for a prior opportunity to be heard (See Central Bank of the Philippines v. Court of Appeals, 220 SCRA 536, March 20, 1993). Where the circumstances such as those present in an extradition case call for it, a subsequent opportunity to be heard is enough (Ibid. See also Busuego v. Court of Appeals, 304 SCRA 473, March 11, 1999). In the present case, respondent will be given full opportunity to be heard subsequently, when the extradition court hears the Petition for Extradition. Hence, there is no violation of his right to due process and fundamental fairness.

Contrary to the contention of Jimenez, we find no arbitrariness, either, in the immediate deprivation of his liberty prior to his being heard. That his arrest and detention will not be arbitrary is sufficiently ensured by (1) the DOJ s filing in court the Petition with its supporting documents after a determination that the extradition request meets the requirements of the law and the relevant treaty; (2) the extradition judge s independent prima facie determination that his arrest will best serve the ends of justice before the issuance of a warrant for his arrest; and (3) his opportunity, once he is under the court s custody, to apply for bail as an exception to the no-initial-bail rule. It is also worth noting that before the US government requested the extradition of respondent, proceedings had already been conducted in that country. But because he left the jurisdiction of the requesting state before those proceedings could be completed, it was hindered from continuing with the due processes prescribed under its laws. His invocation of due process now had thus become hollow. He already had that opportunity in the requesting state; yet, instead of taking it, he ran away. In this light, would it be proper and just for the government to increase the risk of violating its treaty obligations in order to accord Respondent Jimenez his personal liberty in the span of time that it takes to resolve the Petition for Extradition? His supposed immediate deprivation of liberty without due process that he had previously shunned pales against the government s interest in fulfilling its Extradition Treaty obligations and in cooperating with the world community in the suppression of crime. Indeed, [c]onstitutional liberties do not exist in a vacuum; the due process rights accorded to individuals must be carefully balanced against exigent and palpable government interest. (Coquia, On the Implementation of the US-RP Extradition Treaty, supra; citing Kelso v. US Department of State, 13 F Supp. 291 [DDC 1998]) Too, we cannot allow our country to be a haven for fugitives, cowards and weaklings who, instead of facing the consequences of their actions, choose to run and hide. Hence, it would not be good policy to increase the risk of violating our treaty obligations if, through overprotection or excessively liberal treatment, persons sought to be extradited are able to evade arrest or escape from our custody. In the absence of any provision in the Constitution, the law or the treaty expressly guaranteeing the right to bail in extradition proceedings, adopting the practice of not granting them bail, as a general rule, would be a step towards deterring fugitives from coming to the Philippines to hide from or evade their prosecutors. The denial of bail as a matter of course in extradition cases falls into place with and gives life to Article 14 (It states: If the person sought consents in writing to surrender to the Requesting State, the Requested State may surrender the person as expeditiously as possible without further proceedings. ) of the Treaty, since this practice would encourage the accused to voluntarily surrender to the requesting state to cut short their detention here. Likewise, their detention pending the resolution of extradition proceedings would fall into place with the emphasis of the Extradition Law on the summary nature of extradition cases and the need for their speedy disposition. (Government of the United States of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban])

158. Is respondent in an Extradition Proceeding entitled to notice and hearing before the issuance of a warrant of arrest? Held: Both parties cite Section 6 of PD 1069 in support of their arguments. X x x Does this provision sanction RTC Judge Purganan s act of immediately setting for hearing the issuance of a warrant of arrest? We rule in the negative. 1. On the Basis of the Extradition Law

It is significant to note that Section 6 of PD 1069, our Extradition Law, uses the word immediate to qualify the arrest of the accused. This qualification would be rendered nugatory by setting for hearing the issuance of the arrest warrant. Hearing entails sending notices to the opposing parties, receiving facts and arguments from them, and giving them time to prepare and present such facts and arguments. Arrest subsequent to a hearing can no longer be considered immediate. The law could not have intended the word as a mere superfluity but, on the whole, as a means of impairing a sense of urgency and swiftness in the determination of whether a warrant of arrest should be issued. By using the phrase if it appears, the law further conveys that accuracy is not as important as speed at such early stage. The trial court is not expected to make an exhaustive determination to ferret out the true and actual situation, immediately upon the filing of the petition. From the knowledge and the material then available to it, the court is expected merely to get a good first impression a prima facie finding sufficient to make a speedy initial determination as regards the arrest and detention of the accused. Xxx We stress that the prima facie existence of probable cause for hearing the petition and, a priori, for issuing an arrest warrant was already evident from the Petition itself and its supporting documents. Hence, after having already determined therefrom that a prima facie finding did exist, respondent judge gravely abused his discretion when he set the matter for hearing upon motion of Jimenez. Moreover, the law specifies that the court sets a hearing upon receipt of the answer or upon failure of the accused to answer after receiving the summons. In connection with the matter of immediate arrest, however, the word hearing is notably absent from the provision. Evidently, had the holding of a hearing at that stage been intended, the law could have easily so provided. It also bears emphasizing at this point that extradition proceedings are summary (See Sec. 9, PD 1069) in nature. Hence, the silence of the Law and the Treaty leans to the more reasonable interpretation that there is no intention to punctuate with a hearing every little step in the entire proceedings. Xxx Verily x x x sending to persons sought to be extradited a notice of the request for their arrest and setting it for hearing at some future date would give them ample opportunity to prepare and execute an escape. Neither the Treaty nor the Law could have intended that consequence, for the very purpose of both would have been defeated by the escape of the accused from the requested state. 2. On the Basis of the Constitution

Even Section 2 of Article III of our Constitution, which is invoked by Jimenez, does not require a notice or a hearing before the issuance of a warrant of arrest. X x x To determine probable cause for the issuance of arrest warrants, the Constitution itself requires only the examination under oath or affirmation of complainants and the witnesses they may produce. There is no requirement to notify and hear the accused before the issuance of warrants of arrest. In Ho v. People (280 SCRA 365, October 9, 1997) and in all the cases cited therein, never was a judge required to go to the extent of conducting a hearing just for the purpose of personally determining probable cause for the issuance of a warrant of arrest. All we required was that the judge must have sufficient supporting documents upon which to make his independent judgment, or at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause.

In Webb v. De Leon (247 SCRA 652, 680, per Puno, J.), the Court categorically stated that a judge was not supposed to conduct a hearing before issuing a warrant of arrest x x x. At most, in cases of clear insufficiency of evidence on record, judges merely further examine complainants and their witnesses (Ibid; citing Allado v. Diokno, 233 SCRA 192, May 5, 1994). In the present case, validating the act of respondent judge and instituting the practice of hearing the accused and his witnesses at this early stage would be discordant with the rationale for the entire system. If the accused were allowed to be heard and necessarily to present evidence during the prima facie determination for the issuance of a warrant of arrest, what would stop him from presenting his entire plethora of defenses at this stage if he so desires in his effort to negate a prima facie finding? Such a procedure could convert the determination of a prima facie case into a full-blown trial of the entire proceedings and possibly make trial of the main case superfluous. This scenario is also anathema to the summary nature of extraditions. (Government of the United States of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban]) The Equal Protection Clause 159. Explain and discuss the equal protection of the law clause.

Held: 1. The equal protection of the law is embraced in the concept of due process, as every unfair discrimination offends the requirements of justice and fair play. It has nonetheless been embodied in a separate clause in Article III, Sec. 1, of the Constitution to provide for a more specific guaranty against any form of undue favoritism or hostility from the government. Arbitrariness in general may be challenged on the basis of the due process clause. But if the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause. According to a long line of decisions, equal protection simply requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. Similar subjects, in other words, should not be treated differently, so as to give undue favor to some and unjustly discriminate against others. The equal protection clause does not require the universal application of the laws on all persons or things without distinction. This might in fact sometimes result in unequal protection, as where, for example, a law prohibiting mature books to all persons, regardless of age, would benefit the morals of the youth but violate the liberty of adults. What the clause requires is equality among equals as determined according to a valid classification. By classification is meant the grouping of persons or things similar to each other in certain particulars and different from all others in these same particulars. (Philippine Judges Association v. Prado, 227 SCRA 703, 711-712, Nov. 11, 1993, En Banc [Cruz]) 2. The equal protection clause exists to prevent undue favor or privilege. It is intended to eliminate discrimination and oppression based on inequality. Recognizing the existence of real difference among men, the equal protection clause does not demand absolute equality. It merely requires that all persons shall be treated alike, under like circumstances and conditions both as to the privileges conferred and liabilities enforced. Thus, the equal protection clause does not absolutely forbid classifications x x x. If the classification is based on real and substantial differences; is germane to the purpose of the law; applies to all members of the same class; and applies to current as well as future conditions, the classification may not be impugned as violating the Constitution's equal protection guarantee. A distinction based on real and reasonable considerations related to a proper legislative purpose x x x is neither unreasonable, capricious nor unfounded. (Himagan v. People, 237 SCRA 538, Oct. 7, 1994, En Banc [Kapunan]) 160. Congress enacted R.A. No. 8189 which provides, in Section 44 thereof, that "No Election Officer shall hold office in a particular city or municipality for more than four (4) years. Any election officer who,

either at the time of the approval of this Act or subsequent thereto, has served for at least four (4) years in a particular city or municipality shall automatically be reassigned by the Commission to a new station outside the original congressional district." Petitioners, who are City and Municipal Election Officers, theorize that Section 44 of RA 8189 is violative of the "equal protection clause" of the 1987 Constitution because it singles out the City and Municipal Election Officers of the COMELEC as prohibited from holding office in the same city or municipality for more than four (4) years. They maintain that there is no substantial distinction between them and other COMELEC officials, and therefore, there is no valid classification to justify the objective of the provision of law under attack. Resolve. Held: The Court is not persuaded by petitioners' arguments. The "equal protection clause" of the 1987 Constitution permits a valid classification under the following conditions: 1) 2) 3) 4) The The The The classification must classification must classification must classification must rest on substantial distinction; be germane to the purpose of the law; not be limited to existing conditions only; and apply equally to all members of the same class.

After a careful study, the ineluctable conclusion is that the classification under Section 44 of RA 8189 satisfies the aforestated requirements. The singling out of election officers in order to "ensure the impartiality of election officials by preventing them from developing familiarity with the people of their place of assignment" does not violate the equal protection clause of the Constitution. In Lutz v. Araneta (98 Phil. 148, 153 [1955]), it was held that "the legislature is not required by the Constitution to adhere to a policy of 'all or none'". This is so for underinclusiveness is not an argument against a valid classification. It may be true that all other officers of COMELEC referred to by petitioners are exposed to the same evils sought to be addressed by the statute. However, in this case, it can be discerned that the legislature thought the noble purpose of the law would be sufficiently served by breaking an important link in the chain of corruption than by breaking up each and every link thereof. Verily, under Section 3(n) of RA 8189, election officers are the highest officials or authorized representatives of the COMELEC in a city or municipality. It is safe to say that without the complicity of such officials, large-scale anomalies in the registration of voters can hardly be carried out. (Agripino A. De Guzman, Jr., et al. v. COMELEC (G.R. No. 129118, July 19, 2000, en Banc [Purisima])

161. Appellant, who was charged with Illegal Recruitment in the RTC of Zamboanga City, invokes the equal protection clause in her defense. She points out that although the evidence purportedly shows that Jasmine Alejandro handed out application forms and even received Lourdes Modesto s payment, appellant was the only one criminally charged. Alejandro, on the other hand, remained scot-free. From this, appellant concludes that the prosecution discriminated against her on grounds of regional origins. Appellant is a Cebuana while Alejandro is a Zamboanguena, and the alleged crime took place in Zamboanga City. Held: The argument has no merit. The prosecution of one guilty while others equally guilty are not prosecuted, however, is not, by itself, a denial of the equal protection of the laws (Application of Finn, 356 P.2d 685 [1960]). Where the official action purports to be in conformity to the statutory classification, an erroneous or mistaken performance of the statutory duty, although a violation of the statute, is not without more a denial of the equal protection of the laws (Snowden v. Hughes, 321 US 1, 88 L Ed 497, 64 S Ct 397 [1943]). The unlawful administration by officers of a statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection, unless there is shown to be present in it an

element of intentional or purposeful discrimination. This may appear on the face of the action taken with respect to a particular class or person, or it may only be shown by extrinsic evidence showing a discriminatory design over another not to be inferred from the action itself. But a discriminatory purpose is not presumed, there must be a showing of clear and intentional discrimination. (Ibid.) Appellant has failed to show that, in charging appellant in court, that there was a clear and intentional discrimination on the part of the prosecuting officials. The discretion of who to prosecute depends on the prosecution s sound assessment whether the evidence before it can justify a reasonable belief that a person has committed an offense (Tan, Jr. v. Sandiganbayan [Third Division], 292 SCRA 452 [1998]). The presumption is that the prosecuting officers regularly performed their duties (Rules of Court, Rule 131, Sec. 5 [m]), and this presumption can be overcome only by proof to the contrary, not by mere speculation. Indeed, appellant has not presented any evidence to overcome this presumption. The mere allegation that appellant, a Cebuana, was charged with the commission of a crime, while a Zamboanguena, the guilty party in appellant s eyes, was not, is insufficient to support a conclusion that the prosecution officers denied appellant equal protection of the laws. There is also common sense practicality in sustaining appellant s prosecution. While all persons accused of crime are to be treated on a basis of equality before the law, it does not follow that they are to be protected in the commission of crime. It would be unconscionable, for instance, to excuse a defendant guilty of murder because others have murdered with impunity. The remedy for unequal enforcement of the law in such instances does not lie in the exoneration of the guilty at the expense of society x x x. Protection of the law will be extended to all persons equally in the pursuit of their lawful occupations, but no person has the right to demand protection of the law in the commission of a crime (People v. Montgomery, 117 P.2d 437 [1941]). Likewise, [i]f the failure of prosecutors to enforce the criminal laws as to some persons should be converted into a defense for others charged with crime, the result would be that the trial of the district attorney for nonfeasance would become an issue in the trial of many persons charged with heinous crimes and the enforcement of law would suffer a complete breakdown (State v. Hicks, 325 P.2d 794 [1958]). (People v. Dela Piedra, 350 SCRA 163, Jan. 24, 2001, 1st Div. [Kapunan])

162. Are there substantial distinctions between print media and broadcast media to justify the requirement for the latter to give free airtime to be used by the Comelec to inform the public of qualifications and program of government of candidates and political parties during the campaign period? Discuss. Held: There are important differences in the characteristics of the two media which justify their differential treatment for free speech purposes. Because of the physical limitations of the broadcast spectrum, the government must, of necessity, allocate broadcast frequencies to those wishing to use them. There is no similar justification for government allocation and regulation of the print media. In the allocation of limited resources, relevant conditions may validly be imposed on the grantees or licensees. The reason for this is that the government spends public funds for the allocation and regulation of the broadcast industry, which it does not do in the case of print media. To require radio and television broadcast industry to provide free airtime for the Comelec Time is a fair exchange for what the industry gets.

From another point of view, the SC has also held that because of the unique and pervasive influence of the broadcast media, [n]ecessarily x x x the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media. (TELEBAP, Inc. v. COMELEC, 289 SCRA 337, April 21, 1998 [Mendoza]) 163. Does the death penalty law (R.A. No. 7659) violate the equal protection clause considering that, in effect, it punishes only people who are poor, uneducated, and jobless? Held: R.A. No. 7659 specifically provides that [T]he death penalty shall be imposed if the crime of rape is committed x x x when the victim is a religious or a child below seven (7) years old. Apparently, the death penalty law makes no distinction. It applies to all persons and to all classes of persons rich or poor, educated or uneducated, religious or non-religious. No particular person or classes of persons are identified by the law against whom the death penalty shall be exclusively imposed. The law punishes with death a person who shall commit rape against a child below seven years of age. Thus, the perpetration of rape against a 5-year old girl does not absolve or exempt an accused from the imposition of the death penalty by the fact that he is poor, uneducated, jobless, and lacks catechetical instruction. To hold otherwise will not eliminate but promote inequalities. In Cecilleville Realty and Service Corporation v. CA, 278 SCRA 819 [1997]), the SC clarified that compassion for the poor is an imperative of every humane society but only when the recipient is not a rascal claiming an undeserved privilege. (People v. Jimmy Mijano y Tamora, G.R. No. 129112, July 23, 1999, En Banc [Per Curiam]) 164. The International School Alliance of Educators (ISAE) questioned the point-of-hire classification employed by International School, Inc. to justify distinction in salary rates between foreign-hires and local-hires, i.e., salary rates of foreign-hires are higher by 25% than their local counterparts, as discriminatory and, therefore, violates the equal protection clause. The International School contended that this is necessary in order to entice foreign-hires to leave their domicile and work here. Resolve. Held: That public policy abhors inequality and discrimination is beyond contention. Our Constitution and laws reflect the policy against these evils. X x x International law, which springs from general principles of law, likewise proscribes discrimination x x x. The Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention against Discrimination in Education, the Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation - all embody the general principle against discrimination, the very antithesis of fairness and justice. The Philippines, through its Constitution, has incorporated this principle as part of its national laws. [I]t would be an affront to both the spirit and letter of these provisions if the State, in spite of its primordial obligation to promote and ensure equal employment opportunities, closes its eyes to unequal and discriminatory terms and conditions of employment x x x. Discrimination, particularly in terms of wages, is frowned upon by the Labor Code. Article 135, for example, prohibits and penalizes the payment of lesser compensation to a female employee as against a male employee for work of equal value. Article 248 declares it an unfair labor practice for an employer to discriminate in regards to wages in order to encourage or discourage membership in any labor organization. X x x The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legal truism of "Equal pay for equal work." Persons who work with substantially equal qualifications, skill, effort and

responsibility, under similar conditions, should be paid similar salaries. This rule applies to the School (International School, Inc.), its "international character" notwithstanding. The School contends that petitioner has not adduced evidence that local-hires perform work equal to that of foreign-hires. The Court finds this argument a little cavalier. If an employer accords employees the same position and rank, the presumption is that these employees perform equal work. This presumption is borne by logic and human experience. If the employer pays one employee less than the rest, it is not for that employee to explain why he receives less or why the others receive more. That would be adding insult to injury. The employer has discriminated against that employee; it is for the employer to explain why the employee is treated unfairly. The employer in this case failed to discharge this burden. There is no evidence here that foreign-hires perform 25% more efficiently or effectively than the local-hires. Both groups have similar functions and responsibilities, which they perform under similar working conditions. The School cannot invoke the need to entice foreign-hires to leave their domicile to rationalize the distinction in salary rates without violating the principle of equal work for equal pay. Xxx While we recognize the need of the School to attract foreign-hires, salaries should not be used as an enticement to the prejudice of local-hires. The local-hires perform the same services as foreign-hires and they ought to be paid the same salaries as the latter. For the same reason, the "dislocation factor" and the foreign-hires' limited tenure also cannot serve as valid bases for the distinction in salary rates. The dislocation factor and limited tenure affecting foreign-hires are adequately compensated by certain benefits accorded them which are not enjoyed by local-hires, such as housing, transportation, shipping costs, taxes and home leave travel allowances. The Constitution enjoins the State to "protect the rights of workers and promote their welfare", "to afford labor full protection." The State, therefore, has the right and duty to regulate the relations between labor and capital. These relations are not merely contractual but are so impressed with public interest that labor contracts, collective bargaining agreements included, must yield to the common good. Should such contracts contain stipulations that are contrary to public policy, courts will not hesitate to strike down these stipulations. In this case, we find the point-of-hire classification employed by respondent School to justify the distinction in the salary rates of foreign-hires and local-hires to be an invalid classification. There is no reasonable distinction between the services rendered by foreign-hires and local-hires. The practice of the School of according higher salaries to foreign-hires contravenes public policy and, certainly, does not deserve the sympathy of this Court. (International School Alliance of Educators (ISAE) v. Hon. Leonardo A. Quisumbing, G.R. No. 128845, June 1, 2000, 1st Div. [Kapunan]) 165. Accused-appellant Romeo G. Jalosjos filed a motion before the Court asking that he be allowed to fully discharge the duties of a Congressman, including attendance at legislative sessions and committee meetings despite his having been convicted in the first instance of a non-bailable offense. Does being an elective official result in a substantial distinction that allows different treatment? Is being a Congressman a substantial differentiation which removes the accused-appellant as a prisoner from the same class as all persons validly confined under law? Held: In the ultimate analysis, the issue before us boils down to a question of constitutional equal protection. Xxx

The performance of legitimate and even essential duties by public officers has never been an excuse to free a person validly in prison. The duties imposed by the mandate of the people are multifarious. The accused-appellant asserts that the duty to legislate ranks highest in the hierarchy of government. The accused-appellant is only one of 250 members of the House of Representatives, not to mention the 24 members of the Senate, charged with the duties of legislation. Congress continues to function well in the physical absence of one or a few of its members. Depending on the exigency of Government that has to be addressed, the President or the Supreme Court can also be deemed the highest for that particular duty. The importance of a function depends on the need for its exercise. The duty of a mother to nurse her infant is most compelling under the law of nature. A doctor with unique skills has the duty to save the lives of those with a particular affliction. An elective governor has to serve provincial constituents. A police officer must maintain peace and order. Never had the call of a particular duty lifted a prisoner into a different classification from those others who are validly restrained by law. A strict scrutiny of classifications is essential lest wittingly or otherwise, insidious discriminations are made in favor of or against groups or types of individuals. The Court cannot validate badges of inequality. The necessities imposed by public welfare may justify exercise of government authority to regulate even if thereby certain groups may plausibly assert that their interests are disregarded. We, therefore, find that election to the position of Congressman is not a reasonable classification in criminal law enforcement. The functions and duties of the office are not substantial distinctions which lift him from the class of prisoners interrupted in their freedom and restricted in liberty of movement. Lawful arrest and confinement are germane to the purposes of the law and apply to all those belonging to the same class. Xxx It can be seen from the foregoing that incarceration, by its nature, changes an individual s status in society. Prison officials have the difficult and often thankless job of preserving the security in a potentially explosive setting, as well as of attempting to provide rehabilitation that prepare inmates for re-entry into the social mainstream. Necessarily, both these demands require the curtailment and elimination of certain rights. Premises considered, we are constrained to rule against the accused-appellant s claim that re-election to public office gives priority to any other right or interest, including the police power of the State. (People v. Jalosjos, 324 SCRA 689, Feb. 3, 2000, En Banc [Ynares-Santiago])

The Right against Unreasonable Searches and Seizures 166. Discuss the constitutional requirement that a judge, in issuing a warrant of arrest, must determine probable cause personally. Distinguish determination of probable cause by the prosecutor and determination of probable cause by the judge. Held: It must be stressed that the 1987 Constitution requires the judge to determine probable cause personally, a requirement which does not appear in the corresponding provisions of our previous constitutions. This emphasis evinces the intent of the framers to place a greater degree of responsibility upon trial judges than that imposed under previous Constitutions. In Soliven v. Makasiar, this Court pronounced:

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if in the basis thereof he finds no probable cause, he may disregard the fiscal s report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. Ho v. People (Ibid.) summarizes existing jurisprudence on the matter as follows: Lest we be too repetitive, we only wish to emphasize three vital matters once more: First, as held in Inting, the determination of probable cause by the prosecutor is for a purpose different from that which is to be made by the judge. Whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial is what the prosecutor passes upon. The judge, on the other hand, determines whether a warrant of arrest should be issued against the accused, i.e., whether there is a necessity for placing him under immediate custody in order not to frustrate the ends of justice. Thus, even if both should base their findings on one and the same proceeding or evidence, there should be no confusion as to their distinct objectives. Second, since their objectives are different, the judge cannot rely solely on the report of the prosecutor in finding probable cause to justify the issuance of a warrant of arrest. Obviously and understandably, the contents of the prosecutor s report will support his own conclusion that there is reason to charge the accused for an offense and hold him for trial. However, the judge must decide independently. Hence, he must have supporting evidence, other than the prosecutor s bare report, upon which to legally sustain his own findings on the existence (or nonexistence) of probable cause to issue an arrest order. This responsibility of determining personally and independently the existence or nonexistence of probable cause is lodged in him by no less than the most basic law of the land. Parenthetically, the prosecutor could ease the burden of the judge and speed up the litigation process by forwarding to the latter not only the information and his bare resolution finding probable cause, but also so much of the records and the evidence on hand as to enable the His Honor to make his personal and separate judicial finding on whether to issue a warrant of arrest. Lastly, it is not required that the complete or entire records of the case during the preliminary investigation be submitted to and examined by the judge. We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose of ordering the arrest of an accused. What is required, rather, is that the judge must have sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcript of stenographic notes, if any) upon which to make his independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutor s recommendation, as Respondent Court did in this case. Although the prosecutor enjoys the legal presumption of regularity in the performance of his official duties and functions, which in turn gives his report the presumption of accuracy, the Constitution, we repeat, commands the judge to personally determine probable cause in the issuance of warrants of arrest. This Court has consistently held that a judge fails in his bounden duty if he relies merely on the certification or the report of the investigating officer. (Citations omitted) In the case at bench, respondent admits that he issued the questioned warrant as there was no reason for (him) to doubt the validity of the certification made by the Assistant Prosecutor that a preliminary investigation was conducted and that probable cause was found to exist as against those charged in the information filed. The statement is an admission that respondent relied solely and completely on the certification made by the fiscal that probable cause exists as against those charged in the information and issued the challenged warrant of arrest on the sole basis of the prosecutor s findings and

recommendations. He adopted the judgment of the prosecutor regarding the existence of probable cause as his own. (Abdula v. Guiani, 326 SCRA 1, Feb. 18, 2000, 3rd Div. [Gonzaga-Reyes])

167. Accused-appellant assails the validity of his arrest and his subsequent convictions for the two crimes. Both the trial court and the Court of Appeals found that the arrest and subsequent seizure were legal. Held: A review of the records at bar shows no reason to depart therefrom. The constitutional proscription, that no person shall be arrested without any warrant of arrest having been issued prior thereto, is not a hard-and-fast rule. X x x (Citations omitted) In the cases at bar, the police saw the gun tucked in appellant s waist when he stood up. The gun was plainly visible. No search was conducted as none was necessary. Accused-appellant could not show any license for the firearm, whether at the time of his arrest or thereafter. Thus, he was in effect committing a crime in the presence of the police officers. No warrant of arrest was necessary in such a situation, it being one of the recognized exceptions under the Rules. As a consequence of appellant s valid warrantless arrest, he may be lawfully searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant, as provided in Rule 126, Section 12. This is a valid search incidental to a lawful arrest. The subsequent discovery in his car of drug paraphernalia and the crystalline substance, which, was later identified as shabu, though in a distant place from where the illegal possession of firearm was committed, cannot be said to have been made during an illegal search. As such, the seized items do not fall within the exclusionary clause x x x. Hence, not being fruits of the poisonous tree x x x the objects found at the scene of the crime, such as the firearm, the shabu and the drug paraphernalia, can be used as evidence against appellant. Besides, it has been held that drugs discovered as a result of a consented search is admissible in evidence. (Citations omitted.) (People v. Go, 354 SCRA 338, Mar. 14, 2001, 1st Div. [Ynares-Santiago])

168. In an application for search warrant, the application was accompanied by a sketch of the compound at 516 San Jose de la Montana St., Mabolo, Cebu City, indicating the 2-storey residential house of private respondent with a large X enclosed in a square. Within the same compound are residences of other people, workshops, offices, factories and warehouse. The search warrant issued, however, merely indicated the address of the compound which is 516 San Jose de la Montana St., Mabolo, Cebu City. Did this satisfy the constitutional requirement under Section 2, Article III that the place to be searched must be particularly described? Held: This Court has held that the applicant should particularly describe the place to be searched and the person or things to be seized, wherever and whenever it is feasible. In the present case, it must be noted that the application for a search warrant was accompanied by a sketch of the compound at 516 San Jose de la Montana St., Mabolo, Cebu City. The sketch indicated the 2-storey residential house of private respondent with a large "X" enclosed in a square. Within the same compound are residences of other people, workshops, offices, factories and warehouse. With this sketch as the guide, it could have been very easy to describe the residential house of private respondent with sufficient particularity so as to segregate it from the other buildings or structures inside the same compound. But the search warrant merely indicated the address of the compound which is 516 San Jose de la Montana St., Mabolo, Cebu City. This description of the place to be searched is too general and does not pinpoint the specific house of private respondent. Thus, the inadequacy of the description of the residence of private respondent

sought to be searched has characterized the questioned search warrant as a general warrant, which is violative of the constitutional requirement. (People v. Estrada, 296 SCRA 383, 400, [Martinez]) 169. Can the place to be searched, as set out in the warrant, be amplified or modified by the officers own personal knowledge of the premises, or the evidence they adduce in support of their application for the warrant? Held: Such a change is proscribed by the Constitution which requires inter alia the search warrant to particularly describe the place to be searched as well as the persons or things to be seized. It would concede to police officers the power of choosing the place to be searched, even if it not be that delineated in the warrant. It would open wide the door to abuse of the search process, and grant to officers executing a search warrant that discretion which the Constitution has precisely removed from them. The particularization of the description of the place to be searched may properly be done only by the Judge, and only in the warrant itself; it cannot be left to the discretion of the police officers conducting the search. It is neither fair nor licit to allow police officers to search a place different from that stated in the warrant on the claim that the place actually searched although not that specified in the warrant is exactly what they had in view when they applied for the warrant and had demarcated in their supporting evidence. What is material in determining the validity of a search is the place stated in the warrant itself, not what applicants had in their thoughts, or had represented in the proofs they submitted to the court issuing the warrant. (People v. Court of Appeals, 291 SCRA 400, June 26, 1998 [Narvasa]) 170. What is search incidental to a lawful arrest ? Discuss.

Held: While a contemporaneous search of a person arrested may be effected to discover dangerous weapons or proofs or implements used in the commission of the crime and which search may extend to the area within his immediate control where he might gain possession of a weapon or evidence he can destroy, a valid arrest must precede the search. The process cannot be reversed. In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental search, the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest was merely used as a pretext for conducting a search. In this instance, the law requires that there be first a lawful arrest before a search can be made the process cannot be reversed. (Malacat v. Court of Appeals, 283 SCRA 159, 175 [1997]) (People v. Chua Ho San, 308 SCRA 432, June 17, 1999, En Banc [Davide, Jr., C.J.]) 171. What is the plain view doctrine? What are its requisites? Discuss.

Held: 1. Objects falling in plain view of an officer who has a right to be in the position to have that view are subject to seizure even without a search warrant and may be introduced in evidence. The plain view doctrine applies when the following requisites concur: (a) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; (b) the discovery of the evidence in plain view is inadvertent; (c) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure. The law enforcement officer must lawfully make an initial intrusion or properly be in a position from which he can particularly view the area. In the course of such lawful intrusion, he came inadvertently across a piece of evidence incriminating the accused. The object must be open to eye and hand and its discovery inadvertent. It is clear that an object is in plain view if the object itself is plainly exposed to sight. The difficulty arises when the object is inside a closed container. Where the object seized was inside a closed package, the object itself is not in plain view and therefore cannot be seized without a warrant. However, if the

package proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the contents are in plain view and may be seized. In other words, if the package is such that an experienced observer could infer from its appearance that it contains the prohibited article, then the article is deemed in plain view. It must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband or otherwise subject to seizure. (People v. Doria, 301 SCRA 668, Jan. 22, 1999, En Banc [Puno, J.]) 2. For the doctrine to apply, the following elements must be present: a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; b) the evidence was inadvertently discovered by the police who have the right to be where they are; and c) the evidence must be immediately apparent; and d) plain view justified mere seizure of evidence without further search. In the instant case, recall that PO2 Balut testified that they first located the marijuana plants before appellant was arrested without a warrant. Hence, there was no valid warrantless arrest which preceded the search of appellant s premises. Note further that the police team was dispatched to appellant s kaingin precisely to search for and uproot the prohibited flora. The seizure of evidence in plain view applies only where the police officer is not searching for evidence against the accused, but inadvertently comes across an incriminating object. Clearly, their discovery of the cannabis plants was not inadvertent. We also note the testimony of SPO2 Tipay that upon arriving at the area, they first had to look around the area before they could spot the illegal plants. Patently, the seized marijuana plants were not immediately apparent and further search was needed. In sum, the marijuana plants in question were not in plain view or open to eye and hand. The plain view doctrine, thus, cannot be made to apply. Nor can we sustain the trial court s conclusion that just because the marijuana plants were found in an unfenced lot, appellant could not invoke the protection afforded by the Charter against unreasonable searches by agents of the State. The right against unreasonable searches and seizures is the immunity of one s person, which includes his residence, his papers, and other possessions. The guarantee refers to the right of personal security of the individual. X x x, what is sought to be protected against the State s unlawful intrusion are persons, not places. To conclude otherwise would not only mean swimming against the stream, it would also lead to the absurd logic that for a person to be immune against unreasonable searches and seizures, he must be in his home or office, within a fenced yard or a private place. The Bill of Rights belongs as much to the person in the street as to the individual in the sanctuary of his bedroom. (People v. Abe Valdez, G.R. No. 129296, Sept. 25, 2000, En Banc [Quisumbing]) 3. Considering its factual milieu, this case falls squarely under the plain view doctrine. X x x. When Spencer wrenched himself free from the grasp of PO2 Gaviola, he instinctively ran towards the house of appellant. The members of the buy-bust team were justified in running after him and entering the house without a search warrant for they were hot in the heels of a fleeing criminal. Once inside the house, the police officers cornered Spencer and recovered the buy-bust money from him. They also caught appellant in flagrante delicto repacking the marijuana bricks which were in full view on top of a table. X x x. Hence, appellant s subsequent arrest was likewise lawful, coming as it is within the purview of Section 5(a) of Rule 113 of the 1985 Rules on Criminal Procedure x x x. Section 5(a) is commonly referred to as the rule on in flagrante delicto arrests. Here two elements must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is

actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer. Thus, when appellant was seen repacking the marijuana, the police officers were not only authorized but also duty-bound to arrest him even without a warrant. (People v. Elamparo, 329 SCRA 404, 414-415, March 31, 2000, 2nd Div. [Quisumbing]) 172. What is a stop-and-frisk search?

Held: 1. In the landmark case of Terry v. Ohio (20 L Ed 2d 889; 88 S Ct 1868, 392 US 1, 900, June 10, 1968), a stop-and-frisk was defined as the vernacular designation of the right of a police officer to stop a citizen on the street, interrogate him, and pat him for weapon(s): x x x (W)here a police officer observes an unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identified himself as a policeman and make reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others safety, he is entitled for the protection of himself or others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapon seized may properly be introduced in evidence against the person from whom they were taken. (Herrera, A Handbook on Arrest, Search and Seizure and Custodial Investigation, 1995 ed., p. 185; and Terry v. Ohio, supra, p. 911) In allowing such a search, the United States Supreme Court held that the interest of effective crime prevention and detection allows a police officer to approach a person, in appropriate circumstances and manner, for purposes of investigating possible criminal behavior even though there is insufficient probable cause to make an actual arrest. In admitting in evidence two guns seized during the stop-and-frisk, the US Supreme Court held that what justified the limited search was the more immediate interest of the police officer in taking steps to assure himself that the person with whom he was dealing was not armed with a weapon that could unexpectedly and fatally be used against him. It did not, however, abandon the rule that the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure, excused only by exigent circumstances. (Manalili v. CA, 280 SCRA 400, Oct. 9, 1997 [Panganiban]) 2. We now proceed to the justification for and allowable scope of a stop-and-frisk as a limited protective search of outer clothing for weapons, as laid down in Terry, thus: We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment (Terry, at 911. In fact, the Court noted that the sole justification for a stop-and-frisk was the protection of the police officer and others nearby ; while the scope of the search conducted in the case was limited to patting down the outer clothing of petitioner and his companions, the police officer did not place his hands in their pockets nor under the outer surface of their garments until he had felt weapons, and then he merely reached for and removed the guns. This did not constitute a general exploratory search, Id.)

Other notable points of Terry are that while probable cause is not required to conduct a stop-and-frisk, it nevertheless holds that mere suspicion or a hunch will not validate a stop-and-frisk. A genuine reason must exist, in light of the police officer s experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. Finally, a stop-and-frisk serves a two-fold interest: (1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer. (Malacat v. Court of Appeals, 283 SCRA 159, Dec. 12, 1997 [Davide]) 173. Are searches at checkpoints valid? Discuss.

Held: Accused-appellants assail the manner by which the checkpoint in question was conducted. They contend that the checkpoint manned by elements of the Makati Police should have been announced. They also complain of its having been conducted in an arbitrary and discriminatory manner. We take judicial notice of the existence of the COMELEC resolution imposing a gun ban during the election period issued pursuant to Section 52(c) in relation to Section 26(q) of the Omnibus Election Code (Batas Pambansa Blg. 881). The national and local elections in 1995 were held on 8 May, the second Monday of the month. The incident, which happened on 5 April 1995, was well within the election period. This Court has ruled that not all checkpoints are illegal. Those which are warranted by the exigencies of public order and are conducted in a way least intrusive to motorists are allowed. For, admittedly, routine checkpoints do intrude, to a certain extent, on motorists right to free passage without interruption, but it cannot be denied that, as a rule, it involves only a brief detention of travelers during which the vehicle s occupants are required to answer a brief question or two. For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individual s right against unreasonable search. In fact, these routine checks, when conducted in a fixed area, are even less intrusive. The checkpoint herein conducted was in pursuance of the gun ban enforced by the COMELEC. The COMELEC would be hard put to implement the ban if its deputized agents were limited to a visual search of pedestrians. It would also defeat the purpose for which such ban was instituted. Those who intend to bring a gun during said period would know that they only need a car to be able to easily perpetrate their malicious designs. The facts adduced do not constitute a ground for a violation of the constitutional rights of the accused against illegal search and seizure. PO3 Suba admitted that they were merely stopping cars they deemed suspicious, such as those whose windows are heavily tinted just to see if the passengers thereof were carrying guns. At best they would merely direct their flashlights inside the cars they would stop, without opening the car s doors or subjecting its passengers to a body search. There is nothing discriminatory in this as this is what the situation demands. We see no need for checkpoints to be announced x x x. Not only would it be impractical, it would also forewarn those who intend to violate the ban. Even so, badges of legitimacy of checkpoints may still be inferred from their fixed location and the regularized manner in which they are operated. (People v. Usana, 323 SCRA 754, Jan. 28, 2000, 1st Div. [Davide, CJ])

174. Do the ordinary rights against unreasonable searches and seizures apply to searches conducted at the airport pursuant to routine airport security procedures? Held: Persons may lose the protection of the search and seizure clause by exposure of their persons or property to the public in a manner reflecting a lack of subjective expectation of privacy, which expectation society is prepared to recognize as reasonable. Such recognition is implicit in airport security procedures. With increased concern over airplane hijacking and terrorism has come increased security at the nation s airports. Passengers attempting to board an aircraft routinely pass through metal detectors; their carry-on baggage as well as checked luggage are routinely subjected to x-ray scans. Should these procedures suggest the presence of suspicious objects, physical searches are conducted to determine what the objects are. There is little question that such searches are reasonable, given their minimal intrusiveness, the gravity of the safety interests involved, and the reduced privacy expectations associated with airline travel. Indeed, travelers are often notified through airport public address systems, signs, and notices in their airline tickets that they are subject to search and, if any prohibited materials or substances are found, such would be subject to seizure. These announcements place passengers on notice that ordinary constitutional protections against warrantless searches and seizures do not apply to routine airport procedures. The packs of methamphetamine hydrochloride having thus been obtained through a valid warrantless search, they are admissible in evidence against the accused-appellant herein. Corollarily, her subsequent arrest, although likewise without warrant, was justified since it was effected upon the discovery and recovery of shabu in her person in flagrante delicto. (People v. Leila Johnson, G.R. No. 138881, Dec. 18, 2000, 2nd Div. [Mendoza]) 175. May the constitutional protection against unreasonable searches and seizures be extended to acts committed by private individuals? Held: As held in People v. Marti (193 SCRA 57 [1991]), the constitutional protection against unreasonable searches and seizures refers to the immunity of one's person from interference by government and it cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion. (People v. Mendoza, 301 SCRA 66, Jan. 18, 1999, 1st Div. [Melo]) 176. Should the seized drugs which are pharmaceutically correct but not properly documented subject of an illegal search because the applicant failed to allege in the application for search warrant that the subject drugs for which she was applying for search warrant were either fake, misbranded, adulterated, or unregistered, be returned to the owner? Held: With the State's obligation to protect and promote the right to health of the people and instill health consciousness among them (Article II, Section 15, 1987 Constitution), in order to develop a healthy and alert citizenry (Article XIV, Section 19[1]), it became mandatory for the government to supervise and control the proliferation of drugs in the market. The constitutional mandate that "the State shall adopt an integrated and comprehensive approach to health development which shall endeavor to make essential goods, health and other social services available to all people at affordable cost" (Article XIII, Section 11) cannot be neglected. This is why "the State shall establish and maintain an effective food and drug regulatory system." (Article XIII, Section 12) The BFAD is the government agency vested by law to make a mandatory and authoritative determination of the true therapeutic effect of drugs because it involves technical skill which is within its special competence. The health of the citizenry should never be compromised. To the layman, medicine is a cure that may lead to better health. If the seized 52 boxes of drugs are pharmaceutically correct but not properly documented, they should be promptly disposed of in the manner provided by law in order to ensure that the same do not fall into the wrong hands who might use the drugs underground. Private respondent cannot rely on the

statement of the trial court that the applicant "failed to allege in the application for search warrant that the subject drugs for which she was applying for search warrant were either fake, misbranded, adulterated, or unregistered" in order to obtain the return of the drugs. The policy of the law enunciated in R.A. No. 8203 is to protect the consumers as well as the licensed businessmen. Foremost among these consumers is the government itself which procures medicines and distributes them to the local communities through direct assistance to the local health centers or through outreach and charity programs. Only with the proper government sanctions can medicines and drugs circulate the market. We cannot afford to take any risk, for the life and health of the citizenry are as precious as the existence of the State. (People v. Judge Estrella T. Estrada, G.R No. 124461, June 26, 2000, Spcl. 2nd Div. [Ynares-Santiago]) 177. Do Regional Trial Courts have competence to pass upon the validity or regularity of seizure and forfeiture proceedings conducted by the Bureau of Customs and to enjoin or otherwise interfere with these proceedings? Held: In Jao v. Court of Appeals (249 SCRA 35, 42-43 [1995]), this Court, reiterating its rulings x x x said: There is no question that Regional Trial Courts are devoid of any competence to pass upon the validity or regularity of seizure and forfeiture proceedings conducted by the Bureau of Customs and to enjoin or otherwise interfere with these proceedings. The Collector of Customs sitting in seizure and forfeiture proceedings has exclusive jurisdiction to hear and determine all questions touching on the seizure and forfeiture of dutiable goods. The Regional Trial Courts are precluded from assuming cognizance over such matters even through petitions of certiorari, prohibition or mandamus. It is likewise well-settled that the provisions of the Tariff and Customs Code and that of Republic Act No. 1125, as amended, otherwise known as An Act Creating the Court of Tax Appeals, specify the proper fora and procedure for the ventilation of any legal objections or issues raised concerning these proceedings. Thus, actions of the Collector of Customs are appealable to the Commissioner of Customs, whose decision, in turn, is subject to the exclusive appellate jurisdiction of the Court of Tax Appeals and from there to the Court of Appeals. The rule that Regional Trial Courts have no review powers over such proceedings is anchored upon the policy of placing no unnecessary hindrance on the government s drive, not only to prevent smuggling and other frauds upon Customs, but more importantly, to render effective and efficient the collection of import and export duties due the State, which enables the government to carry out the functions it has been instituted to perform. Even if the seizure by the Collector of Customs were illegal, x x x we have said that such act does not deprive the Bureau of Customs of jurisdiction thereon. Respondents cite the statement of the Court of Appeals that regular courts still retain jurisdiction where, as in this case, for lack of probable cause, there is serious doubt as to the propriety of placing the articles under Customs jurisdiction through seizure/forfeiture proceedings. They overlook the fact, however, that under the law, the question of whether probable cause exists for the seizure of the subject sacks of rice is not for the Regional Trial Court to determine. The customs authorities do not have to prove to the satisfaction of the court that the articles on board a vessel were imported from abroad or are intended to be shipped abroad before they may exercise the power to effect customs searches, seizures, or arrests provided by law and continue with the administrative hearings. As the Court held in Ponce Enrile v. Vinuya (37 SCRA 381, 388-389 [1971], reiterated in Jao v. Court of Appeals, supra and Mison v. Natividad, 213 SCRA 734 [1992]):

The governmental agency concerned, the Bureau of Customs, is vested with exclusive authority. Even if it be assumed that in the exercise of such exclusive competence a taint of illegality may be correctly imputed, the most that can be said is that under certain circumstances the grave abuse of discretion conferred may oust it of such jurisdiction. It does not mean however that correspondingly a court of first instance is vested with competence when clearly in the light of the above decisions the law has not seen fit to do so. The proceeding before the Collector of Customs is not final. An appeal lies to the Commissioner of Customs and thereafter to the Court of Tax Appeals. It may even reach this Court through the appropriate petition for review. The proper ventilation of the legal issues raised is thus indicated. Certainly a court of first instance is not therein included. It is devoid of jurisdiction. (Bureau of Customs v. Ogario, 329 SCRA 289, 296-298, March 30, 2000, 2nd Div. [Mendoza])

178.

Discuss the nature of an in flagrante delicto warrantless arrest. Illustrative case.

Held: In the case at bar, the court a quo anchored its judgment of conviction on a finding that the warrantless arrest of accused-appellants, and the subsequent search conducted by the peace officers, are valid because accused-appellants were caught in flagrante delicto in possession of prohibited drugs. This brings us to the issue of whether or not the warrantless arrest, search and seizure in the present case fall within the recognized exceptions to the warrant requirement. In People v. Chua Ho San, the Court held that in cases of in flagrante delicto arrests, a peace officer or a private person may, without a warrant, arrest a person when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. The arresting office, therefore, must have personal knowledge of such fact or, as a recent case law adverts to, personal knowledge of facts or circumstances convincingly indicative or constitutive of probable cause. As discussed in People v. Doria, probable cause means an actual belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest. As applied to in flagrante delicto arrests, it is settled that reliable information alone, absent any overt act indicative of a felonious enterprise in the presence and within the view of the arresting officers, are not sufficient to constitute probable cause that would justify an in flagrante delicto arrest. Thus, in People v. Aminnudin (163 SCRA 402, 409-410 [1988]), it was held that the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to apprehension. Likewise, in People v. Mengote (210 SCRA 174, 179-180 [1992]), the Court did not consider eyes . . . darting from side to side . . . [while] holding . . . [one s] abdomen, in a crowded street at 11:30 in the morning, as overt acts and circumstances sufficient to arouse suspicion and indicative of probable cause. According to the Court, [b]y no stretch of the imagination could it have been inferred from these acts that an offense had just been committed, or was actually being committed, or was at least being attempted in [the arresting officers ] presence. So also, in People v. Encinada (280 SCRA 72, 86-87 [1997]), the Court ruled that no probable cause is gleanable from the act of riding a motorela while holding two plastic baby chairs. Then, too, in Malacat v. Court of Appeals (283 SCRA 159 [1997]), the trial court concluded that petitioner was attempting to commit a crime as he was standing at the corner of Plaza Miranda and

Quezon Boulevard with his eyes moving very fast and looking at every person that come (sic) nearer (sic) to them. In declaring the warrantless arrest therein illegal, the Court said: Here, there could have been no valid in flagrante delicto arrest preceding the search in light of the lack of personal knowledge on the part of Yu, the arresting officer, or an overt physical act, on the part of petitioner, indicating that a crime had just been committed, was being committed or was going to be committed. (Id., at 175) It went on to state that Second, there was nothing in petitioner s behavior or conduct which could have reasonably elicited even mere suspicion other than that his eyes were moving very fast an observation which leaves us incredulous since Yu and his teammates were nowhere near petitioner and it was already 6:60 p.m., thus presumably dusk. Petitioner and his companions were merely standing at the corner and were not creating any commotion or trouble . . . Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed with a deadly weapon. None was visible to Yu, for as he admitted, the alleged grenade was discovered inside the front waistline of petitioner, and from all indications as to the distance between Yu and petitioner, any telltale bulge, assuming that petitioner was indeed hiding a grenade, could not have been visible to Yu. (Id., at 178). Clearly, to constitute a valid in flagrante delicto arrest, two requisites must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer (Concurring Opinion of Justice Artemio V. Panganiban in People v. Doria, 301 SCRA 668, 720 [1999]). In the case at bar, accused-appellants manifested no outward indication that would justify their arrest. In holding a bag on board a trisikad, accused-appellants could not be said to be committing, attempting to commit or have committed a crime. It matters not that accused-appellant Molina responded Boss, if possible we will settle this to the request of SPO1 Pamplona to open the bag. Such response which allegedly reinforced the suspicion of the arresting officers that accused-appellants were committing a crime, is an equivocal statement which standing alone will not constitute probable cause to effect an in flagrante delicto arrest. Note that were it not for SPO1 Marino Paguidopon (who did not participate in the arrest but merely pointed accused-appellants to the arresting officers), accused-appellants could not be subject of any suspicion, reasonable or otherwise. While SPO1 Paguidopon claimed that he and his informer conducted a surveillance of accused-appellant Mula, SPO1 Paguidopon, however, admitted that he only learned Mula s name and address after the arrest. What is more, it is doubtful if SPO1 Paguidopon indeed recognized accused-appellant Mula. It is worthy to note that, before the arrest, he was able to see Mula in person only once, pinpointed to him by his informer while they were on the side of the road. These circumstances could not have afforded SPO1 Paguidopon a closer look at accused-appellant Mula, considering that the latter was then driving a motorcycle when SPO1 Paguidopon caught a glimpse of him. With respect to accused-appellant Molina, SPO1 Paguidopon admitted that he had never seen him before the arrest. This belies the claim of SPO1 Pamplona that he knew the name of accused-appellants even before the arrest x x x. The aforesaid testimony of SPO1 Pamplona, therefore, is entirely baseless. SPO1 Pamplona could not have learned the name of accused-appellants from SPO1 Paguidopon because Paguidopon himself, who

allegedly conducted the surveillance, was not even aware of accused-appellants name and address prior to the arrest. Evidently, SPO1 Paguidopon, who acted as informer of the arresting officers, more so the arresting officers themselves, could not have been certain of accused-appellants identity, and were, from all indications, merely fishing for evidence at the time of the arrest. Compared to People v. Encinada, the arresting officer in the said case knew appellant Encinada even before the arrest because of the latter s illegal gambling activities, thus, lending at least a semblance of validity on the arrest effected by the peace officers. Nevertheless, the Court declared in said case that the warrantless arrest and the consequent search were illegal, holding that [t]he prosecution s evidence did not show any suspicious behavior when the appellant disembarked from the ship or while he rode the motorela. No act or fact demonstrating a felonious enterprise could be ascribed to appellant under such bare circumstances. (People v. Encinada, supra.) Moreover, it could not be said that accused-appellants waived their right against unreasonable searches and seizure. Implied acquiescence to the search, if there was any, could not have been more than mere passive conformity given under intimidating or coercive circumstances and is thus considered no consent at all within the purview of the constitutional guarantee (Id., at 91; citing Aniag v. Commission on Elections, 237 SCRA 424, 436-437 [1994]). Withal, the Court holds that the arrest of accused-appellants does not fall under the exceptions allowed by the rules. Hence, the search conducted on their person was likewise illegal. Consequently, the marijuana seized by the peace officers could not be admitted as evidence against accused-appellants, and the Court is thus, left with no choice but to find in favor of accused-appellants. (People v. Molina, 352 SCRA 174, Feb. 19, 2001, En Banc [Ynares-Santiago])

The Privacy of Communications and Correspondence 179. Private respondent Rafael S. Ortanez filed with the Regional Trial Court of Quezon City a complaint for annulment of marriage with damages against petitioner Teresita Salcedo-Ortanez, on grounds of lack of marriage license and/or psychological incapacity of the petitioner. Among the exhibits offered by private respondent were three (3) cassette tapes of alleged telephone conversations between petitioner and unidentified persons. The trial court issued the assailed order admitting all of the evidence offered by private respondent, including tape recordings of telephone conversations of petitioner with unidentified persons. These tape recordings were made and obtained when private respondent allowed his friends from the military to wire tap his home telephone. Did the trial court act properly when it admitted in evidence said tape recordings? Held: Republic Act No. 4200 entitled "An Act to Prohibit and Penalize Wire Tapping and Other Related Violations of the Privacy of Communication, and For Other Purposes" expressly makes such tape recordings inadmissible in evidence. x x x. Clearly, respondent trial court and Court of Appeals failed to consider the afore-quoted provisions of the law in admitting in evidence the cassette tapes in question. Absent a clear showing that both parties to the telephone conversations allowed the recording of the same, the inadmissibility of the subject tapes is mandatory under Rep. Act No. 4200. Additionally, it should be mentioned that the above-mentioned Republic Act in Section 2 thereof imposes a penalty of imprisonment of not less than six (6) months and up to six (6) years for violation of said Act. (Salcedo-Ortanez v. Court of Appeals, 235 SCRA 111, Aug. 4, 1994 [Padilla])

The Right to Privacy 180. Is there a constitutional right to privacy?

Held: The essence of privacy is the right to be let alone. In the 1965 case of Griswold v. Connecticut (381 U.S. 479, 14 l. ed. 2D 510 [1965]), the United States Supreme Court gave more substance to the right of privacy when it ruled that the right has a constitutional foundation. It held that there is a right of privacy which can be found within the penumbras of the First, Third, Fourth, Fifth and Ninth Amendments. In the 1968 case of Morfe v. Mutuc (22 SCRA 424, 444-445), we adopted the Griswold ruling that there is a constitutional right to privacy. The SC clarified that the right of privacy is recognized and enshrined in several provisions of our Constitution. It is expressly recognized in Section 3(1) of the Bill of Rights. Other facets of the right to privacy are protected in various provisions of the Bill of Rights, i.e., Secs. 1, 2, 6, 8, and 17. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno]) 135.Identify the zones of privacy recognized and protected in our laws. Held: 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]) 180. Discuss why Administrative Order No. 308 (issued by the President prescribing for a National ID system for all citizens to facilitate business transactions with government agencies engaged in the delivery of basic services and social security provisions) should be declared unconstitutional. Held: We prescind from the premise that the right to privacy is a fundamental right guaranteed by the Constitution, hence, it is the burden of government to show that A.O. No. 308 is justified by some compelling state interest and that it is narrowly drawn. A.O. No. 308 is predicated on two considerations: (1) the need to provide our citizens and foreigners with the facility to conveniently transact business with basic service and social security providers and other government instrumentalities and (2) the need to reduce, if not totally eradicate, fraudulent transactions and misrepresentations by persons seeking basic services. It is debatable whether these interests are compelling enough to warrant the issuance of A.O. No. 308. But what is not arguable is the broadness, the vagueness, the overbreadth of A.O. No. 308 which if implemented will put our people s right to privacy in clear and present danger. The heart of A.O. No. 308 lies in its Section 4 which provides for a Population Reference Number (PRN) as a common reference number to establish a linkage among concerned agencies through the use of Biometrics Technology and computer application designs. It is noteworthy that A.O. No. 308 does not state what specific biological characteristics and what particular biometrics technology shall be used to identify people who will seek its coverage. Considering the banquet of options available to the implementors of A.O. No. 308, the fear that it threatens the right to privacy of our people is not groundless.

A.O. No. 308 should also raise our antennas for a further look will show that it does not state whether encoding of data is limited to biological information alone for identification purposes. X x x. Clearly, the indefiniteness of A.O. No. 308 can give the government the roving authority to store and retrieve information for a purpose other than the identification of the individual through his PRN. The potential for misuse of the data to be gathered under A.O. No. 308 cannot be underplayed x x x. The more frequent the use of the PRN, the better the chance of building a huge and formidable information base through the electronic linkage of the files. The data may be gathered for gainful and useful government purposes; but the existence of this vast reservoir of personal information constitutes a covert invitation to misuse, a temptation that may be too great for some of our authorities to resist. It is plain and we hold that A.O. No. 308 falls short of assuring that personal information which will be gathered about our people will only be processed for unequivocally specified purposes. The lack of proper safeguards in this regard of A.O. No. 308 may interfere with the individual s liberty of abode and travel by enabling authorities to track down his movement; it may also enable unscrupulous persons to access confidential information and circumvent the right against self-incrimination; it may pave the way for fishing expeditions by government authorities and evade the right against unreasonable searches and seizures. The possibilities of abuse and misuse of the PRN, biometrics and computer technology are accentuated when we consider that the individual lacks control over what can be read or placed on his ID, much less verify the correctness of the data encoded. They threaten the very abuses that the Bill of Rights seeks to prevent. The ability of a sophisticated data center to generate a comprehensive cradle-to-grave dossier on an individual and transmit it over a national network is one of the most graphic threats of the computer revolution. The computer is capable of producing a comprehensive dossier on individuals out of information given at different times and for varied purposes. X x x. Retrieval of stored data is simple. When information of a privileged character finds its way into the computer, it can be extracted together with other data on the subject. Once extracted, the information is putty in the hands of any person. The end of privacy begins. [T]he Court will not be true to its role as the ultimate guardian of the people s liberty if it would not immediately smother the sparks that endanger their rights but would rather wait for the fire that could consume them. [A]nd we now hold that when the integrity of a fundamental right is at stake, this Court will give the challenged law, administrative order, rule or regulation a stricter scrutiny. It will not do for the authorities to invoke the presumption of regularity in the performance of official duties. Nor is it enough for the authorities to prove that their act is not irrational for a basic right can be diminished, if not defeated, even when the government does not act irrationally. They must satisfactorily show the presence of compelling state interest and that the law, rule, or regulation is narrowly drawn to preclude abuses. This approach is demanded by the 1987 Constitution whose entire matrix is designed to protect human rights and to prevent authoritarianism. In case of doubt, the least we can do is to lean towards the stance that will not put in danger the rights protected by the Constitution. The right to privacy is one of the most threatened rights of man living in a mass society. The threats emanate from various sources governments, journalists, employers, social scientists, etc. In the case at bar, the threat comes from the executive branch of government which by issuing A.O. No. 308 pressures the people to surrender their privacy by giving information about themselves on the pretext that it will facilitate delivery of basic services. Given the record-keeping power of the computer, only the indifferent will fail to perceive the danger that A.O. No. 308 gives the government the power to compile a devastating dossier against unsuspecting citizens. X x x [W]e close with the statement that the right to privacy was not engraved in our Constitution for flattery. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno])

181. Should in camera inspection of bank accounts be allowed? If in the affirmative, under what circumstances should it be allowed? Held: The issue is whether petitioner may be cited for indirect contempt for her failure to produce the documents requested by the Ombudsman. And whether the order of the Ombudsman to have an in camera inspection of the questioned account is allowed as an exception to the law on secrecy of bank deposits (R.A. No. 1405). An examination of the secrecy of bank deposits law (R.A. No. 1405) would reveal the following exceptions: 1) Where the depositor consents in writing; 2) Impeachment cases; 3) By court order in bribery or dereliction of duty cases against public officials; 4) Deposit is subject of litigation; 5) Sec. 8, R.A. No. 3019, in cases of unexplained wealth as held in the case of PNB v. Gancayco (122 Phil. 503, 508 [1965]). The order of the Ombudsman to produce for in camera inspection the subject accounts with the Union Bank of the Philippines, Julia Vargas Branch, is based on a pending investigation at the Office of the Ombudsman against Amado Lagdameo, et. al. for violation of R.A. No. 3019, Sec. 3 (e) and (g) relative to the Joint Venture Agreement between the Public Estates Authority and AMARI. We rule that before an in camera inspection may be allowed, there must be a pending case before a court of competent jurisdiction. Further, the account must be clearly identified, the inspection limited to the subject matter of the pending case before the court of competent jurisdiction. The bank personnel and the account holder must be notified to be present during the inspection, and such inspection may cover only the account identified in the pending case. In Union Bank of the Philippines v. Court of Appeals, we held that Section 2 of the Law on Secrecy of Bank Deposits, as amended, declares bank deposits to be absolutely confidential except: 1) In an examination made in the course of a special or general examination of a bank that is specifically authorized by the Monetary Board after being satisfied that there is reasonable ground to believe that a bank fraud or serious irregularity has been or is being committed and that it is necessary to look into the deposit to establish such fraud or irregularity, 2) In an examination made by an independent auditor hired by the bank to conduct its regular audit provided that the examination is for audit purposes only and the results thereof shall be for the exclusive use of the bank, 3) Upon written permission of the depositor, 4) In cases of impeachment, 5) Upon order of a competent court in cases of bribery or dereliction of duty of public officials, or 6) In cases where the money deposited or invested is the subject matter of the litigation . In the case at bar, there is yet no pending litigation before any court of competent authority. What is existing is an investigation by the Office of the Ombudsman. In short, what the Office of the Ombudsman would wish to do is to fish for additional evidence to formally charge Amado Lagdameo, et. al., with the Sandiganbayan. Clearly, there was no pending case in court which would warrant the opening of the bank account for inspection.

Zones of privacy are 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 for meddling and prying into the privacy of another. It also holds 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 of the violation of secrets by an officer, revelation of trade and industrial secrets, and trespass to dwelling. Invasion of privacy is an offense in special laws like the antiWiretapping Law, the Secrecy of Bank Deposits Act, and the Intellectual Property Code. (Lourdes T. Marquez v. Hon. Aniano A. Desierto, G.R. No. 135882, June 27, 2001, En Banc [Pardo])

Freedom of Expression 182. Distinguish content-based restrictions on free speech from content-neutral restrictions, and give example of each. Held: Content-based restrictions are imposed because of the content of the speech and are, therefore, subject to the clear-and-present danger test. For example, a rule such as that involved in Sanidad v. Comelec (181 SCRA 529 [1990]), prohibiting columnists, commentators, and announcers from campaigning either for or against an issue in a plebiscite must have compelling reason to support it, or it will not pass muster under strict scrutiny. These restrictions are censorial and therefore they bear a heavy presumption of constitutional invalidity. In addition, they will be tested for possible overbreadth and vagueness. Content-neutral restrictions, on the other hand, like Sec. 11(b) of R.A. No. 6646, which prohibits the sale or donation of print space and air time to political candidates during the campaign period, are not concerned with the content of the speech. These regulations need only a substantial governmental interest to support them. A deferential standard of review will suffice to test their validity. The clearand-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]) 183. Does the conduct of exit poll by ABS CBN present a clear and present danger of destroying the credibility and integrity of the electoral process as it has the tendency to sow confusion considering the randomness of selecting interviewees, which further makes the exit poll highly unreliable, to justify the promulgation of a Comelec resolution prohibiting the same? Held: Such arguments are purely speculative and clearly untenable. First, by the very nature of a survey, the interviewees or participants are selected at random, so that the results will as much as possible be representative or reflective of the general sentiment or view of the community or group polled. Second, the survey result is not meant to replace or be at par with the official Comelec count. It consists merely of the opinion of the polling group as to who the electorate in general has probably voted for, based on the limited data gathered from polled individuals. Finally, not at stake are the credibility and the integrity of the elections, which are exercises that are separate and independent from the exit polls. The holding and the reporting of the results of exit polls cannot undermine those of the elections,

since the former is only part of the latter. If at all, the outcome of one can only be indicative of the other. The COMELEC s concern with the possible noncommunicative effect of exit polls disorder and confusion in the voting centers does not justify a total ban on them. Undoubtedly, the assailed Comelec Resolution is too broad, since its application is without qualification as to whether the polling is disruptive or not. There is no showing, however, that exit polls or the means to interview voters cause chaos in voting centers. Neither has any evidence been presented proving that the presence of exit poll reporters near an election precinct tends to create disorder or confuse the voters. Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for any purpose. The valuable information and ideas that could be derived from them, based on the voters answers to the survey questions will forever remain unknown and unexplored. Unless the ban is restrained, candidates, researchers, social scientists and the electorate in general would be deprived of studies on the impact of current events and of election-day and other factors on voters choices. The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave open any alternative channel of communication to gather the type of information obtained through exit polling. On the other hand, there are other valid and reasonable ways and means to achieve the Comelec end of avoiding or minimizing disorder and confusion that may be brought about by exit surveys. With foregoing premises, it is concluded that the interest of the state in reducing disruption is outweighed by the drastic abridgment of the constitutionally guaranteed rights of the media and the electorate. Quite the contrary, instead of disrupting elections, exit polls properly conducted and publicized can be vital tools for the holding of honest, orderly, peaceful and credible elections; and for the elimination of election-fixing, fraud and other electoral ills. (ABS-CBN Broadcasting Corporation v. COMELEC, G.R. No. 133486, Jan. 28, 2000, En Banc [Panganiban]) 184. Section 5.4 of R.A. No. 9006 (Fair Election Act) which provides: Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election. The Social Weather Stations, Inc. (SWS), a private non-stock, non-profit social research institution conducting surveys in various fields; and Kamahalan Publishing Corporation, publisher of the Manila Standard, a newspaper of general circulation, which features newsworthy items of information including election surveys, challenged the constitutionality of aforesaid provision as it constitutes a prior restraint on the exercise of freedom of speech without any clear and present danger to justify such restraint. Should the challenge be sustained? Held: For reason hereunder given, we hold that Section 5.4 of R.A. No. 9006 constitutes an unconstitutional abridgment of freedom of speech, expression, and the press. To be sure, Section 5.4 lays a prior restraint on freedom of speech, expression, and the press by prohibiting the publication of election survey results affecting candidates within the prescribed periods of fifteen (15) days immediately preceding a national election and seven (7) days before a local election. Because of the preferred status of the constitutional rights of speech, expression, and the press, such a measure is vitiated by a weighty presumption of invalidity. Indeed, any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity x x x. The Government thus carries a heavy burden of showing justification for the enforcement of such restraint. There is thus a reversal of the normal presumption of validity that inheres in every legislation. Nor may it be argued that because of Art. IX-C, Sec. 4 of the Constitution, which gives the Comelec supervisory power to regulate the enjoyment or utilization of franchise for the operation of media of communication, no presumption of invalidity attaches to a measure like Sec. 5.4. For as we have pointed

out in sustaining the ban on media political advertisements, the grant of power to the Comelec under Art. IX-C, Sec. 4 is limited to ensuring equal opportunity, time, space, and the right to reply as well as uniform and reasonable rates of charges for the use of such media facilities for public information campaigns and forums among candidates. Xxx Nor can the ban on election surveys be justified on the ground that there are other countries x x x which similarly impose restrictions on the publication of election surveys. At best this survey is inconclusive. It is noteworthy that in the United States no restriction on the publication of election survey results exists. It cannot be argued that this is because the United States is a mature democracy. Neither are there laws imposing an embargo on survey results, even for a limited period, in other countries. X x x. What test should then be employed to determine the constitutional validity of Section 5.4? The United States Supreme Court x x x held in United States v. O Brien: [A] government regulation is sufficiently justified (1) if it is within the constitutional power of the government; (2) if it furthers an important or substantial governmental interest; (3) if the governmental interest is unrelated to the suppression of free expression; and (4) if the incidental restriction on alleged First Amendment freedoms (of speech, expression and press) is no greater than is essential to the furtherance of that interest (391 U.S. 367, 20 L. Ed. 2d 692, 680 [1968] [bracketed numbers added]). This is so far the most influential test for distinguishing content-based from content-neutral regulations and is said to have become canonical in the review of such laws. It is noteworthy that the O Brien test has been applied by this Court in at least two cases (Adiong v. Comelec, 207 SCRA 712 [1992]; Osmena v. Comelec, supra.). Under this test, even if a law furthers an important or substantial governmental interest, it should be invalidated if such governmental interest is not unrelated to the suppression of free expression. Moreover, even if the purpose is unrelated to the suppression of free speech, the law should nevertheless be invalidated if the restriction on freedom of expression is greater than is necessary to achieve the governmental purpose in question. Our inquiry should accordingly focus on these two considerations as applied to Sec. 5.4. First. Sec. 5.4 fails to meet criterion (3) of the O Brien test because the causal connection of expression to the asserted governmental interest makes such interest not unrelated to the suppression of free expression. By prohibiting the publication of election survey results because of the possibility that such publication might undermine the integrity of the election, Sec. 5.4 actually suppresses a whole class of expression, while allowing the expression of opinion concerning the same subject matter by newspaper columnists, radio and TV commentators, armchair theorists, and other opinion makers. In effect, Sec. 5.4 shows a bias for a particular subject matter, if not viewpoint, by preferring personal opinion to statistical results. The constitutional guarantee of freedom of expression means that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its contents. The inhibition of speech should be upheld only if the expression falls within one of the few unprotected categories dealt with in Chaplinsky v. New Hampshire (315 U.S. 568, 571-572, 86 L. Ed. 1031, 1035 [1942]), thus: There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or fighting words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. [S]uch utterances are no

essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. Nor is there justification for the prior restraint which Sec. 5.4 lays on protected speech. In Near v. Minnesota (283 U.S. 697, 715-716, 75 l. Ed. 1357, 1367 [1931]), it was held: [T]he protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases x x x. No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government x x x. Thus, x x x the prohibition imposed by Sec. 5.4 cannot be justified on the ground that it is only for a limited period and is only incidental. The prohibition may be for a limited time, but the curtailment of the right of expression is direct, absolute, and substantial. It constitutes a total suppression of a category of speech and is not made less so because it is only for a period of fifteen (15) days immediately before a national election and seven (7) days immediately before a local election. This sufficiently distinguishes Sec. 5.4 from R.A. No. 6646, Sec. 11(b), which this Court found to be valid in National Press Club v. Comelec (supra.), and Osmena v. Comelec (supra.). For the ban imposed by R.A. No. 6646, Sec. 11(b) is not only authorized by a specific constitutional provision (Art. IX-C, Sec. 4), but it also provided an alternative so that, as this Court pointed out in Osmena, there was actually no ban but only a substitution of media advertisements by the Comelec space, and Comelec hour. Second. Even if the governmental interest sought to be promoted is unrelated to the suppression of speech and the resulting restriction of free expression is only incidental, Sec. 5.4 nonetheless fails to meet criterion (4) of the O Brien test, namely, that the restriction be not greater than is necessary to further the governmental interest. As already stated, Sec. 5.4. aims at the prevention of last-minute pressure on voters, the creation of bandwagon effect, junking of weak or losing candidates, and resort to the form of election cheating called dagdag-bawas. Praiseworthy as these aims of the regulation might be, they cannot be attained at the sacrifice of the fundamental right of expression, when such aim can be more narrowly pursued by punishing unlawful acts, rather than speech because of apprehension that such speech creates the danger of such evils. Thus, under the Administrative Code of 1987 (Bk. V, Tit. I, Subtit. C, Ch 1, Sec. 3[1]), the Comelec is given the power: To stop any illegal activity, or confiscate, tear down, and stop any unlawful, libelous, misleading or false election propaganda, after due notice and hearing. This is surely a less restrictive means than the prohibition contained in Sec. 5.4. Pursuant to this power of the Comelec, it can confiscate bogus survey results calculated to mislead voters. Candidates can have their own surveys conducted. No right of reply can be invoked by others. No principle of equality is involved. It is a free market to which each candidate brings his ideas. As for the purpose of the law to prevent bandwagon effects, it is doubtful whether the Government can deal with this natural-enough tendency of some voters. Some voters want to be identified with the winners. Some are susceptible to the herd mentality. Can these be legitimately prohibited by suppressing the publication of survey results which are a form of expression? It has been held that [mere] legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions. To summarize then, we hold that Sec. 5.4. is invalid because (1) it imposes a prior restraint on the freedom of expression, (2) it is a direct and total suppression of a category of expression even though

such suppression is only for a limited period, and (3) the governmental interest sought to be promoted can be achieved by means other than the suppression of freedom of expression. (Social Weather Stations, Inc., v. COMELEC, G.R. No. 147571, May 5, 2001, En Banc [Mendoza]) 185. Discuss the "doctrine of fair comment" as a valid defense in an action for libel or slander.

Held: Fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. The doctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts. (Borjal v. CA, 301 SCRA 1, Jan. 14, 1999, 2nd Div. [Bellosillo]) 186. What is the raison d etre for the New York Times v. Sullivan (376 US 254) holding that honest criticisms on the conduct of public officials and public figures are insulated from libel judgments? Held: The guarantees of freedom of speech and press prohibit a public official or public figure from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice, i.e., with knowledge that it was false or with reckless disregard of whether it was false or not. The raison d etre for the New York Times doctrine was that to require critics of official conduct to guarantee the truth of all their factual assertions on pain of libel judgments would lead to self-censorship, since would-be critics would be deterred from voicing out their criticisms even if such were believed to be true, or were in fact true, because of doubt whether it could be proved or because of fear of the expense of having to prove it. (Borjal v. CA, 301 SCRA 1, Jan. 14, 1999, 2nd Div. [Bellosillo]) 187. Who is a public figure, and therefore subject to public comment?

Held: [W]e deem private respondent a public figure within the purview of the New York Times ruling. At any rate, we have also defined public figure in Ayers Production Pty., Ltd. v. Capulong (G.R. Nos. 82380 and 82398, 29 April 1988, 160 SCRA 861) as X x x a person who, by his accomplishments, fame, mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs and his character, has become a public personage. He is, in other words, a celebrity. Obviously, to be included in this category are those who have achieved some degree of reputation by appearing before the public, as in the case of an actor, a professional baseball player, a pugilist, or any other entertainer. The list is, however, broader than this. It includes public officers, famous inventors and explorers, war heroes and even ordinary soldiers, infant prodigy, and no less a personage than the Great Exalted Ruler of the lodge. It includes, in short, anyone who has arrived at a position where the public attention is focused upon him as a person. The FNCLT (First National Conference on Land Transportation) was an undertaking infused with public interest. It was promoted as a joint project of the government and the private sector, and organized by top government officials and prominent businessmen. For this reason, it attracted media mileage and drew public attention not only to the conference itself but to the personalities behind as well. As its Executive Director and spokesman, private respondent consequently assumed the status of a public figure.

But even assuming ex-gratia argumenti that private respondent, despite the position he occupied in the FNCLT, would not qualify as a public figure, it does not necessarily follow that he could not validly be the subject of a public comment even if he was not a public official or at least a public figure, for he could be, as long as he was involved in a public issue. If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved or because in some sense the individual did not voluntarily choose to become involved. The public s primary interest is in the event; the public focus is on the conduct of the participant and the content, effect and significance of the conduct, not the participant s prior anonymity or notoriety. (Borjal v. CA, 301 SCRA 1, Jan. 14, 1999, 2nd Div. [Bellosillo]) 188. The question for determination in this case is the liability for libel of a citizen who denounces a barangay official for misconduct in office. The Regional Trial Court of Manila x x x found petitioner guilty x x x on the ground that petitioner failed to prove the truth of the charges and that he was motivated by vengeance in uttering the defamatory statement. Held: The decision appealed from should be reversed. In denouncing the barangay chairman in this case, petitioner and the other residents of the Tondo Foreshore Area were not only acting in their self-interest but engaging in the performance of a civic duty to see to it that public duty is discharged faithfully and well by those on whom such duty is incumbent. The recognition of this right and duty of every citizen in a democracy is inconsistent with any requirement placing on him the burden of proving that he acted with good motives and for justifiable ends. For that matter, even if the defamatory statement is false, no liability can attach if it relates to official conduct, unless the public official concerned proves that the statement was made with actual malice that is, with knowledge that it was false or with reckless disregard of whether it was false or not. This is the gist of the ruling in the landmark case of New York Times v. Sullivan (376 U.S. 254, 11 L. Ed. 2d [1964]. For a fascinating account of this case, see Anthony Lewis, Make No Law The Sullivan Case and the First Amendment [1991]), which this Court has cited with approval in several of its own decisions (Lopez v. Court of Appeals, 145 Phil. 219 [1970], others omitted). This is the rule of actual malice. In this case, the prosecution failed to prove not only that the charges made by petitioner were false but also that petitioner made them with knowledge of their falsity or with reckless disregard of whether they were false or not. A rule placing on the accused the burden of showing the truth of allegations of official misconduct and/or good motives and justifiable ends for making such allegations would not only be contrary to Art. 361 of the Revised Penal Code. It would, above all, infringe on the constitutionally guaranteed freedom of expression. Such a rule would deter citizens from performing their duties as members of a self-governing community. Without free speech and assembly, discussions of our most abiding concerns as a nation would be stifled. As Justice Brandies has said, public discussion is a political duty and the greatest menace to freedom is an inert people. (Whitney v. California, 247 U.S. 357, 375, 71 L. Ed. 1095, 1105 [1927] [concurring]) (Vasquez v. Court of Appeals, 314 SCRA 460, Sept. 15, 1999, En Banc [Mendoza])

189. The Office of the Mayor of Las Pinas refused to issue permit to petitioners to hold rally a rally in front of the Justice Hall of Las Pinas on the ground that it was prohibited under Supreme Court En Banc Resolution dated July 7,1998 in A.M. No. 98-7-02-SC, entitled, "Re: Guidelines on the Conduct of Demonstrations, Pickets, Rallies and Other Similar Gatherings in the Vicinity of the Supreme Court and All Other Courts." Petitioners thus initiated the instant proceedings. They submit that the Supreme Court gravely abused its discretion and/or acted without or in excess of jurisdiction in promulgating those guidelines.

Held: We shall first dwell on the critical argument made by petitioners that the rules constitute an abridgment of the people's aggregate rights of free speech, free expression, peaceful assembly and petitioning government for redress of grievances citing Sec. 4, Article III of the 1987 Constitution that "no law shall be passed abridging" them. It is true that the safeguarding of the people's freedom of expression to the end that individuals may speak as they think on matters vital to them and that falsehoods may be exposed through the processes of education and discussion, is essential to free government. But freedom of speech and expression despite its indispensability has its limitations. It has never been understood as the absolute right to speak whenever, however, and wherever one pleases, for the manner, place, and time of public discussion can be constitutionally controlled. [T]he better policy is not liberty untamed but liberty regulated by law where every freedom is exercised in accordance with law and with due regard for the rights of others. Conventional wisdom tells us that the realities of life in a complex society preclude an absolutist interpretation of freedom of expression where it does not involve pure speech but speech plus physical actions like picketing. There are other significant societal values that must be accommodated and when they clash, they must all be weighed with the promotion of the general welfare of the people as the ultimate objective. In balancing these values, this Court has accorded freedom of expression a preferred position in light of its more comparative importance. Hence, our rulings now musty in years hold that only the narrowest time, place and manner regulations that are specifically tailored to serve an important governmental interest may justify the application of the balancing of interests test in derogation of the people's right of free speech and expression. Where said regulations do not aim particularly at the evils within the allowable areas of state control but, on the contrary, sweep within their ambit other activities as to operate as an overhanging threat to free discussion, or where upon their face they are so vague, indefinite, or inexact as to permit punishment of the fair use of the right of free speech, such regulations are void. Prescinding from this premise, the Court reiterates that judicial independence and the fair and orderly administration of justice constitute paramount governmental interests that can justify the regulation of the public's right of free speech and peaceful assembly in the vicinity of courthouses. In the case of In Re: Emil P. Jurado, the Court pronounced in no uncertain terms that: "x x x freedom of expression needs on occasion to be adjusted to and accommodated with the requirements of equally important public interests. One of these fundamental public interests is the maintenance of the integrity and orderly functioning of the administration of justice. There is no antinomy between free expression and the integrity of the system of administering justice. For the protection and maintenance of freedom of expression itself can be secured only within the context of a functioning and orderly system of dispensing justice, within the context, in other words, of viable independent institutions for delivery of justice which are accepted by the general community. x x x" (In Re: Emil P. Jurado, 243 SCRA 299, 323-324 [1995]) It is sadly observed that judicial independence and the orderly administration of justice have been threatened not only by contemptuous acts inside, but also by irascible demonstrations outside, the courthouses. They wittingly or unwittingly, spoil the ideal of sober, non-partisan proceedings before a cold and neutral judge. Even in the United States, a prohibition against picketing and demonstrating in or near courthouses, has been ruled as valid and constitutional notwithstanding its limiting effect on the exercise by the public of their liberties. X x x The administration of justice must not only be fair but must also appear to be fair and it is the duty of this Court to eliminate everything that will diminish if not destroy this judicial desideratum. To be sure, there will be grievances against our justice system for there can be no perfect system of justice but these

grievances must be ventilated through appropriate petitions, motions or other pleadings. Such a mode is in keeping with the respect due to the courts as vessels of justice and is necessary if judges are to dispose their business in a fair fashion. It is the traditional conviction of every civilized society that courts must be insulated from every extraneous influence in their decisions. The facts of a case should be determined upon evidence produced in court, and should be uninfluenced by bias, prejudice or sympathies. (In Re: Petition to Annul En Banc Resolution A.M. 98-7-02-SC - Ricardo C. Valmonte and Union of Lawyers and Advocates for Transparency in Government [ULAT], G.R. No. 134621, Sept. 29, 1998) 190. Did the Supreme Court commit an act of judicial legislation in promulgating En Banc Resolution A.M. 98-7-02-SC, entitled, "Re: Guidelines on the Conduct of Demonstrations, Pickets, Rallies and Other Similar Gatherings in the Vicinity of the Supreme Court and All Other Courts?" Held: Petitioners also claim that this Court committed an act of judicial legislation in promulgating the assailed resolution. They charge that this Court amended provisions of Batas Pambansa (B.P.) Blg. 880, otherwise known as "the Public Assembly Act," by converting the sidewalks and streets within a radius of two hundred (200) meters from every courthouse from a public forum place into a "no rally" zone. Thus, they accuse this Court of x x x violating the principle of separation of powers. We reject these low watts arguments. Public places historically associated with the free exercise of expressive activities, such as streets, sidewalks, and parks, are considered, without more, to be public fora. In other words, it is not any law that can imbue such places with the public nature inherent in them. But even in such public fora, it is settled jurisprudence that the government may restrict speech plus activities and enforce reasonable time, place, and manner regulations as long as the restrictions are content-neutral, are narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels of communication. Contrary therefore to petitioners impression, B.P. Blg. 880 did not establish streets and sidewalks, among other places, as public fora. A close look at the law will reveal that it in fact prescribes reasonable time, place, and manner regulations. Thus, it requires a written permit for the holding of public assemblies in public places subject, even, to the right of the mayor to modify the place and time of the public assembly, to impose a rerouting of the parade or street march, to limit the volume of loud speakers or sound system and to prescribe other appropriate restrictions on the conduct of the public assembly. The existence of B.P. Blg. 880, however, does not preclude this Court from promulgating rules regulating conduct of demonstrations in the vicinity of courts to assure our people of an impartial and orderly administration of justice as mandated by the Constitution. To insulate the judiciary from mob pressure, friendly or otherwise, and isolate it from public hysteria, this Court merely moved away the situs of mass actions within a 200-meter radius from every courthouse. In fine, B.P. Blg. 880 imposes general restrictions to the time, place and manner of conducting concerted actions. On the other hand, the resolution of this Court regulating demonstrations adds specific restrictions as they involve judicial independence and the orderly administration of justice. There is thus no discrepancy between the two sets of regulatory measures. Simply put, B.P. Blg. 880 and the assailed resolution complement each other. We so hold following the rule in legal hermeneutics that an apparent conflict between a court rule and a statutory provision should be harmonized and both should be given effect if possible. (In Re: Petition to Annul En Banc Resolution A.M. 98-7-02-SC - Ricardo C. Valmonte and Union of Lawyers and Advocates for Transparency in Government [ULAT], G.R. No. 134621, Sept. 29, 1998) 191. Should live media coverage of court proceedings be allowed?

Held: The propriety of granting or denying permission to the media to broadcast, record, or photograph court proceedings involves weighing the constitutional guarantees of freedom of the press, the right of

the public to information and the right to public trial, on the one hand, and on the other hand, the due process rights of the defendant and the inherent and constitutional power of the courts to control their proceedings in order to permit the fair and impartial administration of justice. Collaterally, it also raises issues on the nature of the media, particularly television and its role in society, and of the impact of new technologies on law. The records of the Constitutional Commission are bereft of discussion regarding the subject of cameras in the courtroom. Similarly, Philippine courts have not had the opportunity to rule on the question squarely. While we take notice of the September 1990 report of the United States Judicial Conference Ad Hoc Committee on Cameras in the Courtroom, still the current rule obtaining in the Federal Courts of the United States prohibits the presence of television cameras in criminal trials. Rule 53 of the Federal Rules of Criminal Procedure forbids the taking of photographs during the progress of judicial proceedings or radio broadcasting of such proceedings from the courtroom. A trial of any kind or in any court is a matter of serious importance to all concerned and should not be treated as a means of entertainment. To so treat it deprives the court of the dignity which pertains to it and departs from the orderly and serious quest for truth for which our judicial proceedings are formulated. Courts do not discriminate against radio and television media by forbidding the broadcasting or televising of a trial while permitting the newspaper reporter access to the courtroom, since a television or news reporter has the same privilege, as the news reporter is not permitted to bring his typewriter or printing press into the courtroom. In Estes v. Texas (381 U.S. 532), the United States Supreme Court held that television coverage of judicial proceedings involves an inherent denial of due process rights of a criminal defendant. Voting 5-4, the Court through Mr. Justice Clark, identified four (4) areas of potential prejudice which might arise from the impact of the cameras on the jury, witnesses, the trial judge and the defendant. The decision in part pertinently stated: "Experience likewise has established the prejudicial effect of telecasting on witnesses. Witnesses might be frightened, play to the camera, or become nervous. They are subject to extraordinary out-of-court influences which might affect their testimony. Also, telecasting not only increases the trial judge's responsibility to avoid actual prejudice to the defendant; it may as well affect his own performance. Judges are human beings also and are subject to the same psychological reactions as laymen. For the defendant, telecasting is a form of mental harassment and subjects him to excessive public exposure and distracts him from the effective presentation of his defense. "The television camera is a powerful weapon which intentionally or inadvertently can destroy an accused and his case in the eyes of the public." Representatives of the press have no special standing to apply for a writ of mandate to compel a court to permit them to attend a trial, since within the courtroom a reporter's constitutional rights are no greater than those of any other member of the public. Massive intrusion of representatives of the news media into the trial itself can so alter or destroy the constitutionally necessary judicial atmosphere and decorum that the requirements of impartiality imposed by due process of law are denied the defendant and a defendant in a criminal proceeding should not be forced to run a gauntlet of reporters and photographers each time he enters or leaves the courtroom. Considering the prejudice it poses to the defendant's right to due process as well as to the fair and orderly administration of justice, and considering further that the freedom of the press and the right of the people to information may be served and satisfied by less distracting, degrading and prejudicial means, live radio and television coverage of court proceedings shall not be allowed. Video footages of court hearings for news purposes shall be restricted and limited to shots of the courtroom, the judicial

officers, the parties and their counsel taken prior to the commencement of official proceedings. No video shots or photographs shall be permitted during the trial proper. (Supreme Court En Banc Resolution Re: Live TV and Radio Coverage of the Hearing of President Corazon C. Aquino's Libel Case, dated Oct. 22, 1991) 192. Should the Court allow live media coverage of the anticipated trial of the plunder and other criminal cases filed against former President Joseph E. Estrada before the Sandiganbayan in order to assure the public of full transparency in the proceedings of an unprecedented case in our history as requested by the Kapisanan ng mga Brodkaster ng Pilipinas? Held: The propriety of granting or denying the instant petition involve the weighing out of the constitutional guarantees of freedom of the press and the right to public information, on the one hand, and the fundamental rights of the accused, on the other hand, along with the constitutional power of a court to control its proceedings in ensuring a fair and impartial trial. When these rights race against one another, jurisprudence tells us that the right of the accused must be preferred to win. With the possibility of losing not only the precious liberty but also the very life of an accused, it behooves all to make absolutely certain that an accused receives a verdict solely on the basis of a just and dispassionate judgment, a verdict that would come only after the presentation of credible evidence testified to by unbiased witnesses unswayed by any kind of pressure, whether open or subtle, in proceedings that are devoid of histrionics that might detract from its basic aim to ferret veritable facts free from improper influence, and decreed by a judge with an unprejudiced mind, unbridled by running emotions or passions. Due process guarantees the accused a presumption of innocence until the contrary is proved in a trial that is not lifted above its individual settings nor made an object of public s attention and where the conclusions reached are induced not by any outside force or influence but only by evidence and argument given in open court, where fitting dignity and calm ambiance is demanded. Witnesses and judges may very well be men and women of fortitude, able to thrive in hardy climate, with every reason to presume firmness of mind and resolute endurance, but it must also be conceded that television can work profound changes in the behavior of the people it focuses on. Even while it may be difficult to quantify the influence, or pressure that media can bring to bear on them directly and through the shaping of public opinion, it is a fact, nonetheless, that, indeed, it does so in so many ways and in varying degrees. The conscious or unconscious effect that such a coverage may have on the testimony of witnesses and the decision of judges cannot be evaluated but, it can likewise be said, it is not at all unlikely for a vote of guilt or innocence to yield to it. It might be farcical to build around them an impregnable armor against the influence of the most powerful media of public opinion. To say that actual prejudice should first be present would leave to near nirvana the subtle threats to justice that a disturbance of the mind so indispensable to the calm and deliberate dispensation of justice can create. The effect of television may escape the ordinary means of proof, but it is not far-fetched for it to gradually erode our basal conception of a trial such as we know it now. An accused has a right to a public trial but it is a right that belongs to him, more than anyone else, where his life or liberty can be held critically in balance. A public trial aims to ensure that he is fairly dealt with and would not be unjustly condemned and that his rights are not compromised in secret conclaves of long ago. A public trial is not synonymous with publicized trial; it only implies that the court doors must be open to those who wish to come, sit in the available seats, conduct themselves with decorum and observe the trial process. In the constitutional sense, a courtroom should have enough facilities for a reasonable number of the public to observe the proceedings, not too small as to render the openness

negligible and not too large as to distract the trial participants from their proper functions, who shall then be totally free to report what they have observed during the proceedings. The courts recognize the constitutionally embodied freedom of the press and the right to public information. It also approves of media s exalted power to provide the most accurate and comprehensive means of conveying the proceedings to the public and in acquainting the public with the judicial process in action; nevertheless, within the courthouse, the overriding consideration is still the paramount right of the accused to due process which must never be allowed to suffer diminution in its constitutional proportions. Justice Clark thusly pronounced, while a maximum freedom must be allowed the press in carrying out the important function of informing the public in a democratic society, its exercise must necessarily be subject to the maintenance of absolute fairness in the judicial process. Xxx The Integrated Bar of the Philippines x x x expressed its own concern on the live television and radio coverage of the criminal trials of Mr. Estrada; to paraphrase: Live television and radio coverage can negate the rule on exclusion of witnesses during the hearings intended to assure a fair trial; at stake in the criminal trial is not only the life and liberty of the accused but the very credibility of the Philippine criminal justice system, and live television and radio coverage of the trial could allow the hooting throng to arrogate unto themselves the task of judging the guilt of the accused, such that the verdict of the court will be acceptable only if popular; and live television and radio coverage of the trial will not subserve the ends of justice but will only pander to the desire for publicity of a few grandstanding lawyers. Xxx Unlike other government offices, courts do not express the popular will of the people in any sense which, instead, are tasked to only adjudicate controversies on the basis of what alone is submitted before them. A trial is not a free trade of ideas. Nor is a competing market of thoughts the known test of truth in a courtroom. (Re: Request Radio-TV coverage of the Trial in the Sandiganbayan of the Plunder Cases against the former President Joseph E. Estrada, A.M. No. 01-4-03-SC, June 29, 2001, En Banc [Vitug])

Freedom of Religion 193. Discuss why the Gerona ruling (justifying the expulsion from public schools of children of Jehovah s Witnesses who refuse to salute the flag and sing the national anthem during flag ceremony as prescribed by the Flag Salute Law) should be abandoned. Held: Our task here is extremely difficult, for the 30-year old decision of this court in Gerona upholding the flag salute law and approving the expulsion of students who refuse to obey it, is not lightly to be trifled with. It is somewhat ironic however, that after the Gerona ruling had received legislative cachet by its incorporation in the Administrative Code of 1987, the present Court believes that the time has come to reexamine it. The idea that one may be compelled to salute the flag, sing the national anthem, and recite the patriotic pledge, during a flag ceremony on pain of being dismissed from one s job or of being expelled from school, is alien to the conscience of the present generation of Filipinos who cut their teeth on the Bill of Rights which guarantees their rights to free speech (The flag salute, singing the national anthem and reciting the patriotic pledge are all forms of utterances.) and the free exercise of religious profession and worship.

Religious freedom is a fundamental right which is entitled to the highest priority and the amplest protection among human rights, for it involves the relationship of man to his Creator (Chief Justice Enrique M. Fernando s separate opinion in German v. Barangan, 135 SCRA 514, 530-531). The right to religious profession and worship has a two-fold aspect, viz., freedom to believe and freedom to act on one s belief. The first is absolute as long as the belief is confined within the realm of thought. The second is subject to regulation where the belief is translated into external acts that affect the public welfare (J. Cruz, Constitutional Law, 1991 Ed., pp. 176-177). Petitioners stress x x x that while they do not take part in the compulsory flag ceremony, they do not engage in external acts or behavior that would offend their countrymen who believe in expressing their love of country through the observance of the flag ceremony. They quietly stand at attention during the flag ceremony to show their respect for the rights of those who choose to participate in the solemn proceedings. Since they do not engage in disruptive behavior, there is no warrant for their expulsion. The sole justification for a prior restraint or limitation on the exercise of religious freedom (according to the late Chief Justice Claudio Teehankee in his dissenting opinion in German v. Barangan, 135 SCRA 514, 517) is the existence of a grave and present danger of a character both grave and imminent, of a serious evil to public safety, public morals, public health or any other legitimate public interest, that the State has a right (and duty) to prevent. Absent such a threat to public safety, the expulsion of the petitioners from the schools is not justified. The situation that the Court directly predicted in Gerona that: [T]he flag ceremony will become a thing of the past or perhaps conducted with very few participants, and the time will come when we would have citizens untaught and uninculcated in and not imbued with reverence for the flag and love of country, admiration for national heroes, and patriotism a pathetic, even tragic situation, and all because a small portion of the school population imposed its will, demanded and was granted an exemption. has not come to pass. We are not persuaded that by exempting the Jehovah s Witnesses from saluting the flag, singing the national anthem and reciting the patriotic pledge, this religious group which admittedly comprises a small portion of the school population will shake up our part of the globe and suddenly produce a nation untaught and uninculcated in and unimbued with reverence for the flag, patriotism, love of country and admiration for national heroes. After all, what the petitioners seek only is exemption from the flag ceremony, not exclusion from the public schools where they may study the Constitution, the democratic way of life and form of government, and learn not only the arts, sciences, Philippine history and culture but also receive training for a vocation or profession and be taught the virtues of patriotism, respect for human rights, appreciation for national heroes, the rights and duties of citizenship, and moral and spiritual values (Sec. 3[2], Art. XIV, 1987 Constitution) as part of the curricula. Expelling or banning the petitioners from Philippine schools will bring about the very situation that this Court had feared in Gerona. Forcing a small religious group, through the iron hand of the law, to participate in a ceremony that violates their religious beliefs, will hardly be conducive to love of country or respect for duly constituted authorities. As Mr. Justice Jackson remarked in West Virginia v. Barnette, 319 U.S. 624 (1943): x x x To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering statement of the appeal of our institutions to free minds. x x x When they (diversity) are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

Furthermore, let it be noted that coerced unity and loyalty even to the country, x x x assuming that such unity and loyalty can be attained through coercion is not a goal that is constitutionally obtainable at the expense of religious liberty. A desirable end cannot be promoted by prohibited means. (Meyer v. Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046) Moreover, the expulsion of members of Jehovah s Witnesses from the schools where they are enrolled will violate their right as Philippine citizens, under the 1987 Constitution, to receive free education, for it is the duty of the State to protect and promote the right of all citizens to quality education x x x and to make such education accessible to all (Sec. 1, Art. XIV). In Victoriano v. Elizalde Rope Workers Union, 59 SCRA 54, 72-75, we upheld the exemption of members of the Iglesia Ni Cristo, from the coverage of a closed shop agreement between their employer and a union because it would violate the teaching of their church not to join any labor group: x x x It is certain that not every conscience can be accommodated by all the laws of the land; but when general laws conflict with scruples of conscience, exemptions ought to be granted unless some compelling state interests intervenes. (Sherbert v. Berner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S. Ct. 1790). We hold that a similar exemption may be accorded to the Jehovah s Witnesses with regard to the observance of the flag ceremony out of respect for their religious beliefs, however bizarre those beliefs may seem to others. Nevertheless, their right not to participate in the flag ceremony does not give them a right to disrupt such patriotic exercises. Paraphrasing the warning cited by this Court in Non v. Dames II, 185 SCRA 523, 535, while the highest regard must be afforded their right to the free exercise of their religion, this should not be taken to mean that school authorities are powerless to discipline them if they should commit breaches of the peace by actions that offend the sensibilities, both religious and patriotic, of other persons. If they quietly stand at attention during the flag ceremony while their classmates and teachers salute the flag, sing the national anthem and recite the patriotic pledge, we do not see how such conduct may possibly disturb the peace, or pose a grave and present danger of a serious evil to public safety, public morals, public health or any other legitimate public interest that the State has a right (and duty) to prevent. (Ebralinag v. The Division Superintendent of Schools of Cebu, 219 SCRA 256, 269-273, March 1, 1993, En Banc [Grino-Aquino]) 194. A pre-taped TV program of the Iglesia Ni Cristo (INC) was submitted to the MTRCB for review. The latter classified it as rated X because it was shown to be attacking another religion. The INC protested by claiming that its religious freedom is per se beyond review by the MTRCB. Should this contention be upheld? Held: The right to religious profession and worship has a two-fold aspect, viz., freedom to believe and freedom to act on one's belief. The first is absolute as long as the belief is confined within the realm of thought. The second is subject to regulation where the belief is translated into external acts that affect the public welfare. The Iglesia Ni Cristo's postulate that its religious freedom is per se beyond review by the MTRCB should be rejected. Its public broadcast on TV of its religious programs brings it out of the bosom of internal belief. Television is a medium that reaches even the eyes and ears of children. The exercise of religious freedom can be regulated by the State when it will bring about the clear and present danger of a substantive evil which the State is duty-bound to prevent, i.e., serious detriment to the more overriding interest of public health, public morals, or public welfare. A laissez faire policy on the exercise of religion can be seductive to the liberal mind but history counsels the Court against its blind adoption as religion is and continues to be a volatile area of concern in our society today. "For sure, we shall continue to subject any act pinching the space for the free exercise of religion to a heightened scrutiny but we shall

not leave its rational exercise to the irrationality of man. For when religion divides and its exercise destroys, the State should not stand still." (Iglesia Ni Cristo v. CA, 259 SCRA 529, July 26, 1996 [Puno]) 195. Did the MTRCB act correctly when it rated X the Iglesia Ni Cristo's pre-taped TV program simply because it was found to be "attacking" another religion? Held: The MTRCB may disagree with the criticisms of other religions by the Iglesia Ni Cristo but that gives it no excuse to interdict such criticisms, however unclean they may be. Under our constitutional scheme, it is not the task of the State to favor any religion by protecting it against an attack by another religion. Religious dogma and beliefs are often at war and to preserve peace among their followers, especially the fanatics, the establishment clause of freedom of religion prohibits the State from leaning towards any religion. Vis--vis religious differences, the State enjoys no banquet of options. Neutrality alone is its fixed and immovable stance. In fine, the MTRCB cannot squelch the speech of the INC simply because it attacks another religion. In a State where there ought to be no difference between the appearance and the reality of freedom of religion, the remedy against bad theology is better theology. The bedrock of freedom of religion is freedom of thought and it is best served by encouraging the marketplace of dueling ideas. When the luxury of time permits, the marketplace of ideas demands that speech should be met by more speech for it is the spark of opposite speech, the heat of colliding ideas, that can fan the embers of truth. (Iglesia Ni Cristo v. CA, 259 SCRA 529, July 26, 1996 [Puno]) 196. Is solicitation for the construction of a church covered by P.D. No. 1564 and, therefore, punishable if done without the necessary permit for solicitation from the DSWD? Held: First. Solicitation of contributions for the construction of a church is not solicitation for "charitable or public welfare purpose" but for a religious purpose, and a religious purpose is not necessarily a charitable or public welfare purpose. A fund campaign for the construction or repair of a church is not like fund drives for needy families or victims of calamity or for the construction of a civic center and the like. Like solicitation of subscription to religious magazines, it is part of the propagation of religious faith or evangelization. Such solicitation calls upon the virtue of faith, not of charity, save as those solicited for money or aid may not belong to the same religion as the solicitor. Such solicitation does not engage the philanthropic as much as the religious fervor of the person who is solicited for contribution. Second. The purpose of the Decree is to protect the public against fraud in view of the proliferation of fund campaigns for charity and other civic projects. On the other hand, since religious fund drives are usually conducted among those belonging to the same religion, the need for public protection against fraudulent solicitations does not exist in as great a degree as does the need for protection with respect to solicitations for charity or civic projects as to justify state regulation. Third. To require a government permit before solicitation for religious purpose may be allowed is to lay a prior restraint on the free exercise of religion. Such restraint, if allowed, may well justify requiring a permit before a church can make Sunday collections or enforce tithing. But in American Bible Society v. City of Manila (101 Phil. 386 [1957]), we precisely held that an ordinance requiring payment of a license fee before one may engage in business could not be applied to the appellant's sale of bibles because that would impose a condition on the exercise of a constitutional right. It is for the same reason that religious rallies are exempted from the requirement of prior permit for public assemblies and other uses of public parks and streets (B.P. Blg. 880, Sec. 3[a]). To read the Decree, therefore, as including within its reach solicitations for religious purposes would be to construe it in a manner that it violates the Free Exercise of Religion Clause of the Constitution x x x. (Concurring Opinion, Mendoza, V.V., J., in Centeno v. Villalon-Pornillos, 236 SCRA 197, Sept. 1, 1994) 197. What is a purely ecclesiastical affair to which the State can not meddle?

Held: An ecclesiastical affair is one that concerns doctrine, creed, or form of worship of the church, or the adoption and enforcement within a religious association of needful laws and regulations for the government of the membership, and the power of excluding from such associations those deemed not worthy of membership. Based on this definition, an ecclesiastical affair involves the relationship between the church and its members and relate to matters of faith, religious doctrines, worship and governance of the congregation. To be concrete, examples of this so-called ecclesiastical affairs to which the State cannot meddle are proceedings for excommunication, ordinations of religious ministers, administration of sacraments and other activities with attached religious significance. (Pastor Dionisio V. Austria v. NLRC, G.R. No. 124382, Aug. 16, 1999, 1st Div. [Kapunan]) 198. Petitioner is a religious minister of the Seventh Day Adventist (SDA). He was dismissed because of alleged misappropriation of denominational funds, willful breach of trust, serious misconduct, gross and habitual neglect of duties and commission of an offense against the person of his employer s duly authorized representative. He filed an illegal termination case against the SDA before the labor arbiter. The SDA filed a motion to dismiss invoking the doctrine of separation of Church and State. Should the motion be granted? Held: Where what is involved is the relationship of the church as an employer and the minister as an employee and has no relation whatsoever with the practice of faith, worship or doctrines of the church, i.e., the minister was not excommunicated or expelled from the membership of the congregation but was terminated from employment, it is a purely secular affair. Consequently, the suit may not be dismissed invoking the doctrine of separation of church and the state. (Pastor Dionisio V. Austria v. NLRC, G.R. No. 124382, Aug. 16, 1999, 1st Div. [Kapunan])

The Right of the People to Information on Matters of Public Concern 199. Discuss the scope of the right to information on matters of public concern.

Held: In Valmonte v. Belmonte, Jr., the Court emphasized that the information sought must be matters of public concern, access to which may be limited by law. Similarly, the state policy of full public disclosure extends only to transactions involving public interest and may also be subject to reasonable conditions prescribed by law. As to the meanings of the terms public interest and public concern, the Court, in Legaspi v. Civil Service Commission, elucidated: In determining whether or not a particular information is of public concern there is no rigid test which can be applied. Public concern like public interest is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public. Considered a public concern in the above-mentioned case was the legitimate concern of citizens to ensure that government positions requiring civil service eligibility are occupied only by persons who are eligibles. So was the need to give the general public adequate notification of various laws that regulate and affect the actions and conduct of citizens, as held in Tanada. Likewise did the public nature of the loanable funds of the GSIS and the public office held by the alleged borrowers (members of the defunct Batasang Pambansa) qualify the information sought in Valmonte as matters of public interest and concern. In Aquino-Sarmiento v. Morato (203 SCRA 515, 522-23, November 13, 1991), the Court also held that official acts of public officers done in pursuit of their official functions are public in character; hence, the records pertaining to such official acts and decisions are within the ambit of the constitutional right of access to public records.

Under Republic Act No. 6713, public officials and employees are mandated to provide information on their policies and procedures in clear and understandable language, [and] ensure openness of information, public consultations and hearing whenever appropriate x x x, except when otherwise provided by law or when required by the public interest. In particular, the law mandates free public access, at reasonable hours, to the annual performance reports of offices and agencies of government and government-owned or controlled corporations; and the statements of assets, liabilities and financial disclosures of all public officials and employees. In general, writings coming into the hands of public officers in connection with their official functions must be accessible to the public, consistent with the policy of transparency of governmental affairs. This principle is aimed at affording the people an opportunity to determine whether those to whom they have entrusted the affairs of the government are honestly, faithfully and competently performing their functions as public servants. Undeniably, the essence of democracy lies in the free-flow of thought; but thoughts and ideas must be well-informed so that the public would gain a better perspective of vital issues confronting them and, thus, be able to criticize as well as participate in the affairs of the government in a responsible, reasonable and effective manner. Certainly, it is by ensuring an unfettered and uninhibited exchange of ideas among a well-informed public that a government remains responsive to the changes desired by the people. (Chavez v. PCGG, 299 SCRA 744, Dec. 9, 1998, [Panganiban])

200. What are some of the recognized restrictions to the right of the people to information on matters of public concern? Held: 1) National security matters and intelligence information. This jurisdiction recognizes the common law holding that there is a governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters. Likewise, information on intergovernment exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest; 2) Trade or industrial secrets (pursuant to the Intellectual Property Code [R.A. No. 8293, approved on June 6, 1997] and other related laws) and banking transactions (pursuant to the Secrecy of Bank Deposits Act [R.A. No. 1405, as amended]); 3) Criminal matters, such as those relating to the apprehension, the prosecution and the detention of criminals, which courts may not inquire into prior to such arrest, detention and prosecution; 4) Other confidential information. The Ethical Standards Act (R.A. No. 6713, enacted on February 20, 1989) further prohibits public officials and employees from using or divulging confidential or classified information officially known to them by reason of their office and not made available to the public. (Sec. 7[c], ibid.) Other acknowledged limitations to information access include diplomatic correspondence, closed door Cabinet meetings and executive sessions of either house of Congress, as well as the internal deliberations of the Supreme Court. (Chavez v. PCGG, 299 SCRA 744, Dec. 9, 1998 [Panganiban]) 201. Is the alleged ill-gotten wealth of the Marcoses a matter of public concern subject to this right?

Held: With such pronouncements of our government, whose authority emanates from the people, there is no doubt that the recovery of the Marcoses' alleged ill-gotten wealth is a matter of public concern and imbued with public interest. We may also add that ill-gotten wealth refers to assets and properties purportedly acquired, directly or indirectly, by former President Marcos, his immediate family, relatives and close associates through or as a result of their improper or illegal use of government funds or properties; or their having taken undue advantage of their public office; or their use of powers, influences or relationships, resulting in their unjust enrichment and causing grave damage and prejudice to the

Filipino people and the Republic of the Philippines. Clearly, the assets and properties referred to supposedly originated from the government itself. To all intents and purposes, therefore, they belong to the people. As such, upon reconveyance they will be returned to the public treasury, subject only to the satisfaction of positive claims of certain persons as may be adjudged by competent courts. Another declared overriding consideration for the expeditious recovery of ill-gotten wealth is that it may be used for national economic recovery. We believe the foregoing disquisition settles the question of whether petitioner has a right to respondents' disclosure of any agreement that may be arrived at concerning the Marcoses purported illgotten wealth. (Chavez v. PCGG, 299 SCRA 744, Dec. 9, 1998 [Panganiban])

Freedom of Association 202. Does the right of civil servants to organize include their right to strike? Clarify.

Held: Specifically, the right of civil servants to organize themselves was positively recognized in Association of Court of Appeals Employees (ACAE) v. Ferrer-Calleja (203 SCRA 596, November 15, 1991). But, as in the exercise of the rights of free expression and of assembly, there are standards for allowable limitations such as the legitimacy of the purposes of the association, the overriding considerations of national security and the preservation of democratic institutions (People v. Ferrer, 48 SCRA 382, December 27, 1972, per Castro, J., where the Court, while upholding the validity of the Anti-Subversion Act which outlawed the Communist Party of the Philippines and other "subversive" organizations, clarified, "Whatever interest in freedom of speech and freedom of association is infringed by the prohibition against knowing membership in the Communist Party of the Philippines, is so indirect and so insubstantial as to be clearly and heavily outweighed by the overriding considerations of national security and the preservation of democratic institutions in this country." It cautioned, though, that "the need for prudence and circumspection [cannot be overemphasized] in [the law's] enforcement, operating as it does in the sensitive area of freedom of expression and belief.") As regards the right to strike, the Constitution itself qualifies its exercise with the proviso "in accordance with law." This is a clear manifestation that the state may, by law, regulate the use of this right, or even deny certain sectors such right. Executive Order No. 180 (Issued by former President Corazon C. Aquino on June 1, 1987) which provides guidelines for the exercise of the right of government workers to organize, for instance, implicitly endorsed an earlier CSC circular which "enjoins under pain of administrative sanctions, all government officers and employees from staging strikes, demonstrations, mass leaves, walkouts and other forms of mass action which will result in temporary stoppage or disruption of public service" (CSC Memorandum Circular No. 6, s. 1987, dated April 21, 1987) by stating that the Civil Service law and rules governing concerted activities and strikes in the government service shall be observed. It is also settled in jurisprudence that, in general, workers in the public sector do not enjoy the right to strike. Alliance of Concerned Government Workers v. Minister of Labor and Employment (124 SCRA 1, August 3, 1983, also per Gutierrez, Jr., J.) rationalized the proscription thus: "The general rule in the past and up to the present is that the 'terms and conditions of employment in the Government, including any political subdivision or instrumentality thereof are governed by law.' X x x. Since the terms and conditions of government employment are fixed by law, government workers cannot use the same weapons employed by the workers in the private sector to secure concessions from their employers. The principle behind labor unionism in private industry is that industrial peace cannot be secured through compulsion by law. Relations between private employers and their employees rest on an essentially voluntary basis. Subject to the minimum requirements of wage laws and other labor and welfare legislation, the terms and conditions of employment in the unionized private sector are settled

through the process of collective bargaining. In government employment, however, it is the legislature and, where properly given delegated power, the administrative heads of government which fix the terms and conditions of employment. And this is effected through statutes or administrative circulars, rules, and regulations, not through collective bargaining agreements." (Ibid., p. 13) After delving into the intent of the framers of the Constitution, the Court affirmed the above rule in Social Security System Employees Association (SSSEA) v. Court of Appeals (175 SCRA 686, July 28, 1989) and explained: "Government employees may, therefore, through their unions or associations, either petition the Congress for the betterment of the terms and conditions of employment which are within the ambit of legislation or negotiate with the appropriate government agencies for the improvement of those which are not fixed by law. If there be any unresolved grievances, the dispute may be referred to the Public Sector Labor-Management Council for appropriate action. But employees in the civil service may not resort to strikes, walkouts and other temporary work stoppages, like workers in the private sector, to pressure the Government to accede to their demands. As now provided under Sec. 4, Rule III of the Rules and Regulations to Govern the Exercise of the Right of Government Employees to SelfOrganization, which took effect after the instant dispute arose, '[t]he terms and conditions of employment in the government, including any political subdivision or instrumentality thereof and government-owned and controlled corporations with original charters are governed by law and employees therein shall not strike for the purpose of securing changes [thereto].'' (Ibid., p. 698) (Jacinto v. Court of Appeals, 281 SCRA 657, Nov. 14, 1997, En Banc [Panganiban]) 203. Petitioners public school teachers walked out of their classes and engaged in mass actions during certain dates in September 1990 protesting the alleged unlawful withholding of their salaries and other economic benefits. They also raised national issues, such as the removal of US bases and the repudiation of foreign debts, in their mass actions. They refused to return to work despite orders to do so and subsequently were found guilty of conduct prejudicial to the best interests of the service for having absented themselves without proper authority, from their schools during regular school days, and penalized. They denied that they engaged in strike but claimed that they merely exercised a constitutionally guaranteed right the right to peaceably assemble and petition the government for redress of grievances - and, therefore, should not have been penalized. Should their contention be upheld? Held: Petitioners, who are public schoolteachers and thus government employees, do not seek to establish that they have a right to strike. Rather, they tenaciously insist that their absences during certain dates in September 1990 were a valid exercise of their constitutional right to engage in peaceful assembly to petition the government for a redress of grievances. They claim that their gathering was not a strike, therefore, their participation therein did not constitute any offense. MPSTA v. Laguio (Supra, per Narvasa, J., now CJ.) and ACT v. Carino (Ibid.), in which this Court declared that "these 'mass actions' were to all intents and purposes a strike; they constituted a concerted and unauthorized stoppage of, or absence from, work which it was the teachers' duty to perform, undertaken for essentially economic reasons," should not principally resolve the present case, as the underlying facts are allegedly not identical. Strike, as defined by law, means any temporary stoppage of work done by the concerted action of employees as a result of an industrial or labor dispute. A labor dispute includes any controversy or matter concerning terms and conditions of employment; or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of employers and employees. With these premises, we now evaluate the circumstances of the instant petition.

It cannot be denied that the mass action or assembly staged by the petitioners resulted in the nonholding of classes in several public schools during the corresponding period. Petitioners do not dispute that the grievances for which they sought redress concerned the alleged failure of public authorities essentially, their "employers" - to fully and justly implement certain laws and measures intended to benefit them materially x x x. And probably to clothe their action with permissible character (In justifying their mass actions, petitioners liken their activity to the pro-bases rally led by former President Corazon C. Aquino on September 10, 1991, participated in, as well, by public school teachers who consequently absented themselves from their classes. No administrative charges were allegedly instituted against any of the participants.), they also raised national issues such as the removal of the U.S. bases and the repudiation of foreign debt. In Balingasan v. Court of Appeals (G.R. No. 124678, July 31, 1997, per Regalado, J.), however, this Court said that the fact that the conventional term "strike" was not used by the participants to describe their common course of action was insignificant, since the substance of the situation, and not its appearance, was deemed controlling. Moreover, the petitioners here x x x were not penalized for the exercise of their right to assemble peacefully and to petition the government for a redress of grievances. Rather, the Civil Service Commission found them guilty of conduct prejudicial to the best interest of the service for having absented themselves without proper authority, from their schools during regular school days, in order to participate in the mass protest, their absence ineluctably resulting in the non-holding of classes and in the deprivation of students of education, for which they were responsible. Had petitioners availed themselves of their free time - recess, after classes, weekends or holidays - to dramatize their grievances and to dialogue with the proper authorities within the bounds of law, no one - not the DECS, the CSC or even this Court - could have held them liable for the valid exercise of their constitutionally guaranteed rights. As it was, the temporary stoppage of classes resulting from their activity necessarily disrupted public services, the very evil sought to be forestalled by the prohibition against strikes by government workers. Their act by their nature was enjoined by the Civil Service law, rules and regulations, for which they must, therefore, be made answerable. (Jacinto v. CA, 281 SCRA 657, Nov. 14, 1997, En Banc [Panganiban])

The Non-Impairment Clause 204. Is the constitutional prohibition against impairing contractual obligations absolute?

Held: 1. Nor is there merit in the claim that the resolution and memorandum circular violate the contract clause of the Bill of Rights. The executive order creating the POEA was enacted to further implement the social justice provisions of the 1973 Constitution, which have been greatly enhanced and expanded in the 1987 Constitution by placing them under a separate Article (Article XIII). The Article on Social Justice was aptly described as the "heart of the new Charter" by the President of the 1986 Constitutional Commission, retired Justice Cecilia Munoz Palma. Social justice is identified with the broad scope of the police power of the state and requires the extensive use of such power. X x x. The constitutional prohibition against impairing contractual obligations is not absolute and is not to be read with literal exactness. It is restricted to contracts with respect to property or some object of value and which confer rights that may be asserted in a court of justice; it has no application to statutes relating to public subjects within the domain of the general legislative powers of the State and involving the public rights and public welfare of the entire community affected by it. It does not prevent a proper exercise by the State of its police power by enacting regulations reasonably necessary to secure the health, safety, morals, comfort, or general welfare of the community, even though contracts may thereby be affected, for such matters cannot be placed by contract beyond the power of the State to regulate and control them.

Verily, the freedom to contract is not absolute; all contracts and all rights are subject to the police power of the State and not only may regulations which affect them be established by the State, but all such regulations must be subject to change from time to time, as the general well-being of the community may require, or as the circumstances may change, or as experience may demonstrate the necessity. And under the Civil Code, contracts of labor are explicitly subject to the police power of the State because they are not ordinary contracts but are impressed with public interest. Article 1700 thereof expressly provides: Art. 1700. The relations between capital and labor are not merely contractual. They are so impressed with public interest that labor contracts must yield to the common good. Therefore, such contracts are subject to the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and similar subjects. The challenged resolution and memorandum circular being valid implementations of E.O. No. 797 (Creating the POEA), which was enacted under the police power of the State, they cannot be struck down on the ground that they violate the contract clause. To hold otherwise is to alter long-established constitutional doctrine and to subordinate the police power to the contract clause. (The Conference of Maritime Manning Agencies, Inc. v. POEA, 243 SCRA 666, April 21, 1995 [Davide, Jr.]) 2. Petitioners pray that the present action should be barred, because private respondents have voluntarily executed quitclaims and releases and received their separation pay. Petitioners claim that the present suit is a "grave derogation of the fundamental principle that obligations arising from a valid contract have the force of law between the parties and must be complied with in good faith." The Court disagrees. Jurisprudence holds that the constitutional guarantee of non-impairment of contract is subject to the police power of the state and to reasonable legislative regulations promoting health, morals, safety and welfare. Not all quitclaims are per se invalid or against public policy, except (1) where there is clear proof that the waiver was wangled from an unsuspecting or gullible person, or (2) where the terms of settlement are unconscionable on their face. In these cases, the law will step in to annul the questionable transactions. Such quitclaim and release agreements are regarded as ineffective to bar the workers from claiming the full measure of their legal rights. In the case at bar, the private respondents agreed to the quitclaim and release in consideration of their separation pay. Since they were dismissed allegedly for business losses, they are entitled to separation pay under Article 283 of the Labor Code. And since there was thus no extra consideration for the private respondents to give up their employment, such undertakings cannot be allowed to bar the action for illegal dismissal. (Bogo-Medellin Sugarcane Planters Association, Inc. v. NLRC, 296 SCRA 108, 124, [Panganiban]) 3. Only slightly less abstract but nonetheless hypothetical is the contention of CREBA that the imposition of the VAT on the sales and leases of real estate by virtue of contracts entered prior to the effectivity of the law would violate the constitutional provision that "No law impairing the obligation of contracts shall be passed." It is enough to say that the parties to a contract cannot, through the exercise of prophetic discernment, fetter the exercise of the taxing power of the State. For not only are existing laws read into contracts in order to fix obligations as between parties, but the reservation of essential attributes of sovereign power is also read into contracts as a basic postulate of the legal order. The policy of protecting contracts against impairment presupposes the maintenance of a government which retains adequate authority to secure the peace and good order of society. In truth, the Contract Clause has never been thought as a limitation on the exercise of the State's power of taxation save only where a tax exemption has been granted for a valid consideration. X x x.

(Tolentino v. Secretary of Finance, 235 SCRA 630, 685-686, Aug. 25, 1994, En Banc [Mendoza]) 4. Since timber licenses are not contracts, the non-impairment clause x x x cannot be invoked. X x x, even if it is to be assumed that the same are contracts, the instant case does not involve a law or even an executive issuance declaring the cancellation or modification of existing timber licenses. Hence, the non-impairment clause cannot as yet be invoked. Nevertheless, granting further that a law has actually been passed mandating cancellations or modifications, the same cannot still be stigmatized as a violation of the non-impairment clause. This is because by its very nature and purpose, such a law could have only been passed in the exercise of the police power of the state for the purpose of advancing the right of the people to a balanced and healthful ecology, promoting their health and enhancing their general welfare. X x x. In short, the non-impairment clause must yield to the police power of the state. Finally, it is difficult to imagine x x x how the non-impairment clause could apply with respect to the prayer to enjoin the respondent Secretary from receiving, accepting, processing, renewing or approving new timber license for, save in cases of renewal, no contract would have as yet existed in the other instances. Moreover, with respect to renewal, the holder is not entitled to it as a matter of right. (Oposa v. Factoran, Jr., 224 SCRA 792 [1993]) 5. Anent petitioners' contention that the forcible refund of incentive benefits is an unconstitutional impairment of a contractual obligation, suffice it to state that "[n]ot all contracts entered into by the government will operate as a waiver of its non-suability; distinction must be made between its sovereign and proprietary acts. The acts involved in this case are governmental. Besides, the Court is in agreement with the Solicitor General that the incentive pay or benefit is in the nature of a bonus which is not a demandable or enforceable obligation. (Blaquera v. Alcala, 295 SCRA 366, 446, Sept. 11, 1998, En Banc [Purisima])

The In-Custodial Investigation Rights of an Accused Person 205. State the procedure, guidelines and duties which the arresting, detaining, inviting, or investigating officer or his companions must do and observe at the time of making an arrest and again at and during the time of the custodial interrogation. Held: Lastly, considering the heavy penalty of death and in order to ensure that the evidence against an accused were obtained through lawful means, the Court, as guardian of the rights of the people lays down the procedure, guidelines and duties which the arresting, detaining, inviting, or investigating officer or his companions must do and observe at the time of making an arrest and again at and during the time of the custodial interrogation in accordance with the Constitution, jurisprudence and Republic Act 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). It is high-time to educate our law-enforcement agencies who neglect either by ignorance or indifference the so-called Miranda rights which had become insufficient and which the Court must update in the light of new legal developments: 1) The person arrested, detained, invited or under custodial investigation must be informed in a language known to and understood by him of the reason for the arrest and he must be shown the warrant of arrest, if any. Every other warnings, information or communication must be in a language known to and understood by said person;

2) He must be warned that he has a right to remain silent and that any statement he makes may be used as evidence against him; 3) He must be informed that he has the right to be assisted at all times and have the presence of an independent and competent lawyer, preferably of his own choice; 4) He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one will be provided for him; and that a lawyer may also be engaged by any person in his behalf, or may be appointed by the court upon petition of the person arrested or one acting on his behalf; 5) That whether or not the person arrested has a lawyer, he must be informed that no custodial investigation in any form shall be conducted except in the presence of his counsel of after a valid waiver has been made; 6) The person arrested must be informed that, at any time, he has the right to communicate or confer by the most expedient means - telephone, radio, letter or messenger - with his lawyer (either retained or appointed), any member of his immediate family, or any medical doctor, priest or minister chosen by him or by any one from his immediate family or by his counsel, or be visited by/confer with duly accredited national or international non-government organization. It shall be the responsibility of the officer to ensure that this is accomplished; 7) He must be informed that he has the right to waive any of said rights provided it is made voluntarily, knowingly and intelligently and ensure that he understood the same; 8) In addition, if the person arrested waives his right to a lawyer, he must be informed that it must be done in writing and in the presence of counsel, otherwise, he must be warned that the waiver is void even if he insist on his waiver and chooses to speak; 9) That the person arrested must be informed that he may indicate in any manner at any time or stage of the process that he does not wish to be questioned with warning that once he makes such indication, the police may not interrogate him if the same had not yet commenced, or the interrogation must cease if it has already begun; 10) The person arrested must be informed that his initial waiver of his right to remain silent, the right to counsel or any of his rights does not bar him from invoking it at any time during the process, regardless of whether he may have answered some questions or volunteered some statements; 11) He must also be informed that any statement or evidence, as the case may be, obtained in violation of any of the foregoing, whether inculpatory or exculpatory, in whole or in part, shall be admissible in evidence. (People v. Mahinay, 302 SCRA 455, Feb. 1, 1999, En Banc [Per Curiam]) 206. Explain the kind of information that is required to be given by law enforcement officers to suspect during custodial investigation. Held: [I]t is settled that one s right to be informed of the right to remain silent and to counsel contemplates the transmission of meaningful information rather just the ceremonial and perfunctory recitation of an abstract constitutional principle. It is not enough for the interrogator to merely repeat to the person under investigation the provisions of Section 12, Article III of the 1987 Constitution; the former must also explain the effects of such provision in practical terms e.g., what the person under investigation may or may not do and in a language the subject fairly understands. The right to be informed carries with it a correlative obligation on the part of the police investigator to explain, and contemplates effective communication which results in the subject s understanding of what is conveyed. Since it is comprehension that is sought to be attained, the degree of explanation required will necessarily vary and depend on the education, intelligence, and other relevant personal circumstances of the person undergoing investigation. In further ensuring the right to counsel, it is not enough that the subject is informed of such right; he should also be asked if he wants to avail of the same and should be told that he could ask for counsel if he so desired or that one could be provided him at his request. If he decides not to retain a counsel of his choice or avail of one to be provided for him and, therefore, chooses to waive his right to counsel, such waiver, to be valid and effective, must still be made with the assistance of counsel, who, under prevailing jurisprudence, must be a lawyer. (People v. Canoy, 328 SCRA 385, March 17, 2000, 1st Div. [Davide, CJ])

207.

What is the meaning of competent counsel under Section 12 of the Bill of Rights?

Held: The meaning of competent counsel was explained in People v. Deniega (251 SCRA 626, 637) as follows: x x x [T]he lawyer called to be present during such investigation should be as far as reasonably possible, the choice of the individual undergoing questioning. If the lawyer were one furnished in the accused s behalf, it is important that he should be competent and independent, i.e., that he is willing to fully safeguard the constitutional rights of the accused, as distinguished from one who would merely be giving a routine, peremptory and meaningless recital of the individual s rights. In People v. Basay (219 SCRA 404, 418), this Court stressed that an accused s right to be informed of the right to remain silent and to counsel contemplates the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle. Ideally therefore, a lawyer engaged for an individual facing custodial investigation (if the latter could not afford one) should be engaged by the accused (himself), or by the latter s relative or person authorized by him to engage an attorney or by the court, upon proper petition of the accused or person authorized by the accused to file such petition. Lawyers engaged by the police, whatever testimonials are given as proof of their probity and supposed independence, are generally suspect, as in many areas, the relationship between lawyers and law enforcement authorities can be symbiotic. x x x The competent or independent lawyer so engaged should be present from the beginning to end, i.e., at all stages of the interview, counseling or advising caution reasonably at every turn of the investigation, and stopping the interrogation once in a while either to give advice to the accused that he may either continue, choose to remain silent or terminate the interview. (People v. Espiritu, 302 SCRA 533, Feb. 2, 1999, 3rd Div. [Panganiban]) 208. Can a PAO lawyer be considered an independent counsel within the contemplation of Section 12, Article III, 1987 Constitution? Held: In People v. Oracoy, 224 SCRA 759 [1993]; People v. Bandula, 232 SCRA 566 [1994], the SC has held that a PAO lawyer can be considered an independent counsel within the contemplation of the Constitution considering that he is not a special counsel, public or private prosecutor, counsel of the police, or a municipal attorney whose interest is admittedly adverse to that of the accused-appellant. Thus, the assistance of a PAO lawyer satisfies the constitutional requirement of a competent and independent counsel for the accused. (People v. Bacor, 306 SCRA 522, April 30, 1999, 2nd Div. [Mendoza]) 209. Is the confession of an accused given spontaneously, freely and voluntarily to the Mayor admissible in evidence, considering that the Mayor has operational supervision and control over the local police and may arguably be deemed a law enforcement officer? Held: While it is true that a municipal mayor has operational supervision and control over the local police and may arguably be deemed a law enforcement officer for purposes of applying Section 12(1) and (3) of Article III of the Constitution, however, appellant s confession to the mayor was not made in response to any interrogation by the latter. In fact, the mayor did not question the appellant at all. No police authority ordered appellant to talk to the mayor. It was appellant himself who spontaneously, freely and voluntarily sought the mayor for a private meeting. The mayor did not know that appellant was going to confess his guilt to him. When appellant talked with the mayor as a confidant and not as a law enforcement officer, his uncounselled confession to him did not violate his constitutional rights. Thus, it has been held that the constitutional procedures on custodial investigation do not apply to a spontaneous statement, not elicited through questioning by the authorities, but given in an ordinary

manner whereby appellant orally admitted having committed the crime. What the Constitution bars is the compulsory disclosure of incriminating facts or confessions. The rights under Section 12 are guaranteed to preclude the slightest use of coercion by the State as would lead the accused to admit something false, not to prevent him from freely and voluntarily telling the truth. (People v. Andan, 269 SCRA 95, March 3, 1997) 210. Are confessions made in response to questions by news reporters admissible in evidence?

Answer: Yes. Confessions made in response to questions by news reporters, not by the police or any other investigating officer, are admissible. In People v. Vizcarra, 115 SCRA 743, 752 [1982], where the accused, under custody, gave spontaneous answers to a televised interview by several press reporters in the office of the chief of the CIS, it was held that statements spontaneously made by a suspect to news reporters on a televised interview are deemed voluntary and are admissible in evidence. In People v. Andan, 269 SCRA 95, March 3, 1997, it was held that appellant s confessions to the news reporters were given free from any undue influence from the police authorities. The news reporters acted as news reporters when they interviewed appellant. They were not acting under the direction and control of the police. They did not force appellant to grant them an interview and reenact the commission of the crime. In fact, they asked his permission before interviewing him. The Supreme Court further ruled that appellant s verbal confessions to the newsmen are not covered by Section 12(1) and (3) of Article III of the Constitution and, therefore, admissible in evidence.

211. Discuss why lower court s should act with extreme caution in admitting in evidence accused s videotaped media confessions. Held: Apropos the court a quo s admission of accused-appellant s videotaped confession, we find such admission proper. The interview was recorded on video and it showed accused-appellant unburdening his guilt willingly, openly and publicly in the presence of newsmen. Such confession does not form part of custodial investigation as it was not given to police officers but to media men in an attempt to elicit sympathy and forgiveness from the public. Besides, if he had indeed been forced into confessing, he could have easily sought succor from the newsmen who, in all likelihood, would have been sympathetic with him. X x x X x x However, because of the inherent danger in the use of television as a medium for admitting one s guilt, and the recurrence of this phenomenon in several cases (People v. Vizcarra, No. L38859, 30 July 1982, 115 SCRA 743; others omitted), it is prudent that trial courts are reminded that extreme caution must be taken in further admitting similar confessions. For in all probability, the police, with the connivance of unscrupulous media practitioners, may attempt to legitimize coerced extrajudicial confessions and place them beyond the exclusionary rule by having an accused admit an offense on television. Such a situation would be detrimental to the guaranteed rights of the accused and thus imperil our criminal justice system. We do not suggest that videotaped confessions given before media men by an accused with the knowledge of and in the presence of police officers are impermissible. Indeed, the line between proper and invalid police techniques and conduct is a difficult one to draw, particularly in cases such as this where it is essential to make sharp judgments in determining whether a confession was given under coercive physical or psychological atmosphere. A word of caution then to lower courts: we should never presume that all media confessions described as voluntary have been freely given. This type of confession always remains suspect and therefore should be thoroughly examined and scrutinized. Detection of coerced confessions is admittedly a difficult and arduous task for the courts to make. It requires persistence and determination in separating polluted confessions from untainted ones. We have a sworn duty to be vigilant and protective of the rights

guaranteed by the Constitution. [Bellosillo])

(People v. Endino, 353 SCRA 307, Feb. 20, 2001, 2nd Div.

212. Discuss the two kinds of involuntary or coerced confessions under Section 12, Article III of the 1987 Constitution. Illustrate how the Court should appreciate said involuntary or coerced confessions. Held: There are two kinds of involuntary or coerced confessions treated in this constitutional provision: (1) those which are the product of third degree methods such as torture, force, violence, threat, intimidation, which are dealt with in paragraph 2 of Section 12, and (2) those which are given without the benefit of Miranda warnings, which are the subject of paragraph 1 of the same Section 12. Accused-appellant claims that his confession was obtained by force and threat. Aside from this bare assertion, he has shown no proof of the use of force and violence on him. He did not seek medical treatment nor even a physical examination. His allegation that the fact that he was made to sign the confession five times is proof that he refused to sign it. Xxx We discern no sign that the confession was involuntarily executed from the fact that it was signed by accused-appellant five times. Xxx Extrajudicial confessions are presumed voluntary, and, in the absence of conclusive evidence showing the declarant s consent in executing the same has been vitiated, such confession will be sustained. Moreover, the confession contains details that only the perpetrator of the crime could have given. X x x. It has been held that voluntariness of a confession may be inferred from its being replete with details which could possibly be supplied only by the accused, reflecting spontaneity and coherence which cannot be said of a mind on which violence and torture have been applied. When the details narrated in an extrajudicial confession are such that they could not have been concocted by one who did not take part in the acts narrated, where the claim of maltreatment in the extraction of the confession is unsubstantiated and where abundant evidence exists showing that the statement was voluntarily executed, the confession is admissible against the declarant. There is greater reason for finding a confession to be voluntary where it is corroborated by evidence aliunde which dovetails with the essential facts contained in such confession. But what renders the confession of accused-appellant inadmissible is the fact that accused-appellant was not given the Miranda warnings effectively. Under the Constitution, an uncounseled statement, such as it is called in the United States from which Article III, Section 12(1) was derived, is presumed to be psychologically coerced. Swept into an unfamiliar environment and surrounded by intimidating figures typical of the atmosphere of police interrogation, the suspect really needs the guiding hand of counsel. Now, under the first paragraph of this provision, it is required that the suspect in custodial interrogation must be given the following warnings: (1) he must be informed of his right to remain silent; (2) he must be warned that anything he says can and will be used against him; and (3) he must be told that he has a right to counsel, and that if he is indigent, a lawyer will be appointed to represent him. Xxx There was thus only a perfunctory reading of the Miranda rights to accused-appellant without any effort to find out from him whether he wanted to have counsel and, if so, whether he had his own counsel or

he wanted the police to appoint one for him. This kind of giving of warnings, in several decisions of this Court, has been found to be merely ceremonial and inadequate to transmit meaningful information to the suspect. Especially in this case, care should have been scrupulously observed by the police investigator that accused-appellant was specifically asked these questions considering that he only finished the fourth grade of the elementary school. X x x Moreover, Article III, Section 12(1) requires that counsel assisting suspects in custodial interrogations be competent and independent. Here, accused-appellant was assisted by Atty. De los Reyes, who, though presumably competent, cannot be considered an independent counsel as contemplated by the law for the reason that he was station commander of the WPD at the time he assisted accused-appellant. X x x. This is error. As observed in People v. Bandula (232 SCRA 566 [1994]), the independent counsel required by Article III, Section 12(1) cannot be special counsel, public or private prosecutor, municipal attorney, or counsel of the police whose interest is admittedly adverse to the accused. In this case, Atty. De los Reyes, as PC Captain and Station Commander of the WPD, was part of the police force who could not be expected to have effectively and scrupulously assisted accused-appellant in the investigation. To allow such a happenstance would render illusory the protection given to the suspect during custodial investigation. (People v. Obrero, 332 SCRA 190, 220 208, May 17, 2000, 2nd Div. [Mendoza]) 213. What are the requirements for an extra-judicial confession of an accused to be admissible in evidence? Held: 1. In jurisprudence, no confession can be admitted in evidence unless it is given: 1) Freely and voluntarily, without compulsion, inducement or trickery; 2) Knowingly based on an effective communication to the individual under custodial investigation of his constitutional rights; and 3) Intelligently with full appreciation of its importance and comprehension of its consequences. Once admitted, the confession must inspire credibility or be one which the normal experience of mankind can accept as being within the realm of probability. A confession meeting all the foregoing requisites constitutes evidence of a high order since it is supported by the strong presumption that no person of normal mind will knowingly, freely and deliberately confess that he is the perpetrator of a crime unless prompted by truth and conscience. When all these requirements are met and the confession is admitted in evidence, the burden of proof that it was obtained by undue pressure, threat or intimidation rests upon the accused. (People v. Fabro, 277 SCRA 19, Aug. 11, 1997 [Panganiban]) 2. Numerous decisions of this Court rule that for an extrajudicial confession to be admissible, it must be: 1) voluntary; 2) made with the assistance of competent and independent counsel; 3) express; and 4) in writing. The mantle of protection afforded by the above-quoted constitutional provision covers the period from the time a person is taken into custody for the investigation of his possible participation in the commission of a crime or from the time he is singled out as a suspect in the commission of the offense although not yet in custody. The exclusionary rule is premised on the presumption that the defendant is thrust into an unfamiliar atmosphere running through menacing police interrogation procedures where the potentiality for compulsion, physical or psychological is forcefully apparent. However, the rule is not intended as a deterrent to the accused from confessing guilt if he voluntarily and intelligently so desires but to protect the accused from admitting what he is coerced to admit although untrue. (People v. Base, 329 SCRA 158, 169-171, March 30, 2000, 1st Div. [Ynares-Santiago])

214. Is the choice of a lawyer by a person under custodial investigation who cannot afford the services of a counsel exclusive as to preclude other equally competent and independent attorneys from handling his defense? Held: It must be remembered in this regard that while the right to counsel is immutable, the option to secure the services of counsel de parte is not absolute. Indeed The phrase competent and independent and preferably of his own choice were explicit details which were added upon the persistence of human rights lawyers in the 1986 Constitutional Commission who pointed out cases where, during the martial law period, the lawyers made available to the detainee would be one appointed by the military and therefore beholden to the military. (Citing I Record of the Constitutional Commission 731-734; I Bernas, The Constitution of the Republic of the Philippines, 1987 1st ed., p. 347) Xxx xxx xxx

Withal, the word preferably under Section 12(1), Article 3 of the 1987 Constitution does not convey the message that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling his defense. If the rule were otherwise, then, the tempo of a custodial investigation will be solely in the hands of the accused who can impede, nay, obstruct the progress of the interrogation by simply selecting a lawyer who for one reason or another, is not available to protect his interest. This absurd scenario could not have been contemplated by the framers of the charter. While the initial choice in cases where a person under custodial investigation cannot afford the services of a lawyer is naturally lodged in the police investigators, the accused really has the final choice as he may reject the counsel chosen for him and ask for another one. A lawyer provided by the investigators is deemed engaged by the accused where he never raised any objection against the former s appointment during the course of the investigation and the accused thereafter subscribes to the veracity of his statement before the swearing officer. Verily, to be an effective counsel [a] lawyer need not challenge all the questions being propounded to his client. The presence of a lawyer is not intended to stop an accused from saying anything which might incriminate him but, rather, it was adopted in our Constitution to preclude the slightest coercion as would lead the accused to admit something false (People v. Layuso, 175 SCRA 47 [1989]). The counsel, however, should never prevent an accused from freely and voluntarily telling the truth. (People v. Base, 329 SCRA 158, 169-171, March 30, 2000, 1st Div. [Ynares-Santiago]) 215. Should courts be allowed to distinguish between preliminary questioning and custodial investigation proper when applying the exclusionary rule? Held: The exclusionary rule sprang from a recognition that police interrogatory procedures lay fertile grounds for coercion, physical and psychological, of the suspect to admit responsibility for the crime under investigation. It was not intended as a deterrent to the accused from confessing guilt, if he voluntarily and intelligently so desires but to protect the accused from admitting what he is coerced to admit although untrue. Law enforcement agencies are required to effectively communicate the rights of a person under investigation and to insure that it is fully understood. Any measure short of this requirement is considered a denial of such right. Courts are not allowed to distinguish between preliminary questioning and custodial investigation proper when applying the exclusionary rule. Any information or admission given by a person while in custody which may appear harmless or innocuous at the time without the competent assistance of an independent counsel should be struck down as

inadmissible. It has been held, however, that an admission made to news reporters or to a confidant of the accused is not covered by the exclusionary rule. The admission allegedly made by the appellant is not in the form of a written extra-judicial confession; the admission was allegedly made to the arresting officer during an informal talk at the police station after his arrest as a prime suspect in the rape and killing of x x x. The arresting policeman testified that the appellant admitted that he was with the victim on the evening of January 12, 1994, the probable time of the commission of the crime and that he carried her on his shoulder but that he was too drunk to remember what subsequently happened. The arresting policeman admitted that he did not inform the appellant of his constitutional rights to remain silent and to counsel. We note that the alleged admission is incriminating because it places the accused in the company of the victim at the time the crime was probably committed. The exclusionary rule applies. The accused was under arrest for the rape and killing of x x x and any statement allegedly made by him pertaining to his possible complicity in the crime without prior notification of his constitutional rights is inadmissible in evidence. The policeman s apparent attempt to circumvent the rule by insisting that the admission was made during an informal talk prior to custodial investigation prior is not tenable. The appellant was not invited to the police station as part of a general inquiry for any possible lead to the perpetrators of the crime under investigation. At the time the alleged admission was made the appellant was in custody and had been arrested as the prime suspect in the rape and killing of x x x. The exclusionary rule presumes that the alleged admission was coerced, the very evil the rule stands to avoid. Supportive of such presumption is the absence of a written extra-judicial confession to that effect and the appellant s denial in court of the alleged oral admission. The alleged admission should be struck down as inadmissible. (People v. Bravo, 318 SCRA 812, Nov. 22, 1999, En Banc [Gonzaga-Reyes]) 216. Explain the procedure for out-of-court identification of suspects and the test to determine the admissibility of such identification. Held: 1. In People v. Teehankee, Jr. (249 SCRA 54, October 6, 1995), the Court x x x explained the procedure for out-of-court identification and the test to determine the admissibility of such identification. It listed the following ways of identifying the suspects during custodial investigation: show-up, mug shots and line-ups. The Court there ruled: x x x. Out-of-court identification is conducted by the police in various ways. It is done thru show-ups where the suspect alone is brought face to face with the witness for identification. It is done thru mug shots where photographs are shown to the witness to identify the suspect. It is also done thru line ups where a witness identifies the suspect from a group of persons lined up for the purpose. Since corruption of out-of-court identification contaminates the integrity of in court identification during the trial of the case, courts have fashioned out rules to assure its fairness and its compliance with the requirements of constitutional due process. In resolving the admissibility of and relying on out-of- court identification of suspects, courts have adopted the totality of circumstances test where they consider the following factors, viz: (1) the witness opportunity to view the criminal at the time of the crime; (2) the witness degree of attention at that time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and (6) the suggestiveness of the identification procedure. (Ibid., p. 95) (People v. Timon, 281 SCRA 577, Nov. 12, 1997 [Panganiban]) 2. x x x. The totality test has been fashioned precisely to assure fairness as well as compliance with constitutional requirements of due process in regard to out-of-court identification. These cited factors must be considered to prevent contamination of the integrity of in-court identifications better. (People v. Gamer, 326 SCRA 660, Feb. 29, 2000, 2nd Div. [Quisumbing])

217. Does the prohibition for custodial investigation conducted without the assistance of counsel extend to a person in a police line-up? Consequently, is the identification by private complainant of accused who was not assisted by counsel during police line-up admissible in evidence? Held: The prohibition x x x does not extend to a person in a police line-up because that stage of an investigation is not yet a part of custodial investigation. It has been repeatedly held that custodial investigation commences when a person is taken into custody and is singled out as a suspect in the commission of the crime under investigation and the police officers begin to ask questions on the suspect s participation therein and which tend to elicit an admission. The stage of an investigation wherein a person is asked to stand in a police line-up has been held to be outside the mantle of protection of the right to counsel because it involves a general inquiry into an unsolved crime and is purely investigatory in nature. It has also been held that an uncounseled identification at the police lineup does not preclude the admissibility of an in-court identification. The identification made by the private complainant in the police line-up pointing to Pavillare as one of his abductors is admissible in evidence although the accused-appellant was not assisted by counsel. X x x (People v. Pavillare, 329 SCRA 684, 694-695, April 5, 2000, En Banc [Per Curiam]) 218. Petitioner in a case x x x posits the theory that since he had no counsel during the custodial investigation when his urine sample was taken and chemically examined, Exhibits L and M, x x x are also inadmissible in evidence since his urine sample was derived in effect from an uncounselled extrajudicial confession. Petitioner claims that the taking of his urine sample allegedly violates Article III, Section 2 of the Constitution x x x. Should his contentions be upheld? Held: We are not persuaded. The right to counsel begins from the time a person is taken into custody and placed under investigation for the commission of a crime, i.e., when the investigating officer starts to ask questions to elicit information and/or confession or admissions from the accused. Such right is guaranteed by the Constitution and cannot be waived except in writing and in the presence of counsel. However, what the Constitution prohibits is the use of physical or moral compulsion to extort communication from the accused, but not an inclusion of his body in evidence, when it may be material. In fact, an accused may validly be compelled to be photographed or measured, or his garments or shoes removed or replaced, or to move his body to enable the foregoing things to be done, without running afoul of the proscription against testimonial compulsion. The situation in the case at bar falls within the exemption under the freedom from testimonial compulsion since what was sought to be examined came from the body of the accused. This was a mechanical act the accused was made to undergo which was not meant to unearth undisclosed facts but to ascertain physical attributes determinable by simple observation. In fact, the record shows that petitioner and his co-accused were not compelled to give samples of their urine but they in fact voluntarily gave the same when they were requested to undergo a drug test. (Gutang v. People, 335 SCRA 479, July 11, 2000, 2nd Div. [De Leon])

The Right to Bail 219. 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? Why? Held: Jurisprudence is replete with decisions compelling judges to conduct the required hearings in bail applications, in which the accused stands charged with a capital offense. The absence of objection from the prosecution is never a basis for the grant of bail in such cases, for the judge has no right to presume that the prosecutor knows what he is doing on account of familiarity with the case. "Said reasoning is tantamount to ceding to the prosecutor the duty of exercising judicial discretion to determine whether the guilt of the accused is strong. Judicial discretion is the domain of the judge before whom the petition for

provisional liberty will be decided. The mandated duty to exercise discretion has never been reposed upon the prosecutor." Imposed in Baylon v. Sison (243 SCRA 284, April 6, 1995) 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]) 220. What are the duties of the judge in cases of bail applications where the accused is charged with capital offense? Held: Basco v. Rapatalo (269 SCRA 220, March 5, 1997) enunciated the following duties of the trial judge in such petition for bail: 1) Notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation; 2) Conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion; 3) Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of the prosecution; 4) If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond. Otherwise, petition should be denied. The Court added: "The above-enumerated procedure should now leave no room for doubt as to the duties of the trial judge in cases of bail applications. So basic and fundamental is it to conduct a hearing in connection with the grant of bail in the proper cases that it would amount to judicial apostasy for any member of the judiciary to disclaim knowledge or awareness thereof." Additionally, the court's grant or refusal of bail must contain a summary of the evidence for the prosecution, on the basis of which should be formulated the judge's own conclusion on whether such evidence is strong enough to indicate the guilt of the accused. The summary thereof is considered an aspect of procedural due process for both the prosecution and the defense; its absence will invalidate the grant or the denial of the application for bail. (Joselito V. Narciso v. Flor Marie Sta. Romana-Cruz, G.R. No. 134504, March 17, 2000, 3rd Div. [Panganiban]) 221. Should the accused who remained at large after their conviction be allowed provisional liberty? Can the bail bond that the accused previously posted be used during the entire period of appeal? Held: Despite an order of arrest from the trial court and two warnings from the Court of Appeals, petitioners had remained at large. It is axiomatic that for one to be entitled to bail, he should be in the custody of the law, or otherwise, deprived of liberty. The purpose of bail is to secure one s release and it would be incongruous to grant bail to one who is free. Petitioners Compliance and Motion x x x came short of an unconditional submission to respondent court s lawful order and to its jurisdiction. The trial court correctly denied petitioners motion that they be allowed provisional liberty after their conviction, under their respective bail bonds. Apart from the fact that they were at large, Section 5, Rule 114 of the Rules of Court, as amended by Supreme Court Administrative Circular 12-94, provides that: Xxx The Court, in its discretion, may allow the accused to continue on provisional liberty under the same bail bond during the period to appeal subject to the consent of the bondsman.

The bail bond that the accused previously posted can only be used during the 15-day period to appeal (Rule 122) and not during the entire period of appeal. This is consistent with Section 2(a) of Rule 114 which provides that the bail shall be effective upon approval and remain in force at all stages of the case, unless sooner cancelled, until the promulgation of the judgment of the Regional Trial Court, irrespective of whether the case was originally filed in or appealed to it. This amendment, introduced by SC Administrative Circular 12-94 is a departure from the old rules which then provided that bail shall be effective and remain in force at all stages of the case until its full determination, and thus even during the period of appeal. Moreover, under the present rule, for the accused to continue his provisional liberty on the same bail bond during the period to appeal, consent of the bondsman is necessary. From the record, it appears that the bondsman x x x filed a motion in the trial court x x x for the cancellation of petitioners bail bond for the latter s failure to renew the same upon its expiration. Obtaining the consent of the bondsman was, thus, foreclosed. (Maguddatu v. Court of Appeals, 326 SCRA 362, Feb. 23, 2000, 1st Div. [Kapunan]) 223. Is a condition in an application for bail that accused be first arraigned before he could be granted bail valid? Held: In requiring that petitioner be first arraigned before he could be granted bail, the trial court apprehended that if petitioner were released on bail he could, by being absent, prevent his early arraignment and thereby delay his trial until the complainants got tired and lost interest in their cases. Hence, to ensure his presence at the arraignment, approval of petitioner s bail bonds should be deferred until he could be arraigned. After that, even if petitioner does not appear, trial can proceed as long as he is notified of the date of the hearing and his failure to appear is unjustified, since under Art. III, Sec. 14(2) of the Constitution, trial in absencia is authorized. This seems to be the theory of the trial court in its x x x order conditioning the grant of bail to petitioner on his arraignment. This theory is mistaken. In the first place x x x in cases where it is authorized, bail should be granted before arraignment, otherwise the accused may be precluded from filing a motion to quash. For if the information is quashed and the case is dismissed, there would then be no need for the arraignment of the accused. In the second place, the trial court could ensure the presence of petitioner at the arraignment precisely by granting bail and ordering his presence at any stage of the proceedings, such as arraignment. Under Rule 114, Sec. 2(b) of the Rules on Criminal Procedure, one of the conditions of bail is that the accused shall appear before the proper court whenever so required by the court or these Rules, while under Rule 116, Sec. 1(b) the presence of the accused at the arraignment is required. On the other hand, to condition the grant of bail to an accused on his arraignment would be to place him in a position where he has to choose between (1) filing a motion to 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 Right to be Informed of the Nature and Cause of Accusation against the Accused 224. What are the objectives of the right to be informed of the nature and cause of accusations against the accused? Held: Instructive in this regard is Section 6, Rule 110 of the Rules of Court x x x. The purpose of the above-quoted rule is to inform the accused of the nature and cause of the accusation against him, a right guaranteed by no less than the fundamental law of the land (Article III, Section

14[2], 1987 Constitution). Elaborating on the defendant s right to be informed, the Court held in Pecho v. People (262 SCRA 518) that the objectives of this right are: 1) To furnish the accused with such a description of the charge against him as will enable him to make the defense; 2) To avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and 3) To inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. It is thus imperative that the Information filed with the trial court be complete to the end that the accused may suitably prepare for his defense. Corollary to this, an indictment must fully state the elements of the specific offense alleged to have been committed as it is the recital of the essentials of a crime which delineates the nature and cause of accusation against the accused. Xxx In the case under scrutiny, the information does not allege the minority of the victim x x x although the same was proven during the trial x x x. The omission is not merely formal in nature since doctrinally, an accused cannot be held liable for more than what he is indicted for. It matters not how conclusive and convincing the evidence of guilt may be, but an accused cannot be convicted of any offense, not charged in the Complaint or Information on which he is tried or therein necessarily included. He has a right to be informed of the nature of the offense with which he is charged before he is put on trial. To convict an accused of an offense higher than that charged in the Complaint or Information on which he is tried would constitute unauthorized denial of that right. (People v. Bayya, 327 SCRA 771, March 10, 2000, En Banc [Purisima])

The Right to a Fair Trial 225. What is the purpose of the rule barring trial or sentence of an insane person? What are the reasons underlying it? Held: The rule barring trial or sentence of an insane person is for the protection of the accused, rather than of the public. It has been held that it is inhuman to require an accused disabled by God to make a just defense for his life or liberty. To put a legally incompetent person on trial or to convict and sentence him is a violation of the constitutional rights to a fair trial; and this has several reasons underlying it. For one, the accuracy of the proceedings may not be assured, as an incompetent defendant who cannot comprehend the proceedings may not appreciate what information is relevant to the proof of his innocence. Moreover, he is not in a position to exercise many of the rights afforded a defendant in a criminal case, e.g., the right to effectively consult with counsel, the right to testify in his own behalf, and the right to confront opposing witnesses, which rights are safeguards for the accuracy of the trial result. Second, the fairness of the proceedings may be questioned, as there are certain basic decisions in the course of a criminal proceeding which a defendant is expected to make for himself, and one of these is his plea. Third, the dignity of the proceedings may be disrupted, for an incompetent defendant is likely to conduct himself in the courtroom in a manner which may destroy the decorum of the court. Even if the defendant remains passive, his lack of comprehension fundamentally impairs the functioning of the trial process. A criminal proceeding is essentially an adversarial proceeding. If the defendant is not a conscious and intelligent participant, the adjudication loses its character as a reasoned interaction between an individual and his community and becomes and invective against an insensible object. Fourth, it is important that the defendant knows why he is being punished, a comprehension which is greatly dependent upon his understanding of what occurs at trial. An incompetent defendant may not realize the moral reprehensibility of his conduct. The societal goal of institutionalized retribution may be

frustrated when the force of the state is brought to bear against one who cannot comprehend its significance. (People v. Estrada, 333 SCRA 699, 718-719, June 19, 2000, En Banc [Puno])

The Right to an Impartial Trial 226. What are the two principal legal and philosophical schools of thought on how to deal with the rain of unrestrained publicity during the investigation and trial of high profile cases? Held: There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of unrestrained publicity during the investigation and trial of high profile cases. The British approach the problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay and stop criminal trials when the right of an accused to fair trial suffers a threat. The American approach is different. US courts assume a skeptical approach about the potential effect of pervasive publicity on the right of an accused to a fair trial. They have developed different strains of tests to resolve this issue, i.e., substantial probability of irreparable harm, strong likelihood, clear and present danger, etc. (Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001, En Banc [Puno]) 227. Should the Ombudsman be stopped from conducting the investigation of the cases filed against petitioner (former President) Estrada due to the barrage of prejudicial publicity on his guilt? Held: Petitioner x x x contends that the respondent Ombudsman should be stopped from conducting the investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He submits that the respondent Ombudsman has developed bias and is all set to file the criminal cases in violation of his right to due process. Xxx This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or annul convictions in high profile criminal cases. In People v. Teehankee, Jr. (249 SCRA 54 [1995]), later reiterated in the case of Larranaga v. Court of Appeals, et al. (287 SCRA 581 at pp. 596597 [1998]), we laid down the doctrine that: We cannot sustain appellant s claim that he was denied the right to impartial trial due to prejudicial publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible reporting enhances an accused s right to a fair trial for, as well pointed out, a responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field x x x. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial and other off-court publicity of sensational criminal cases. The state of the art of our communication system brings news as they happen straight to our breakfast tables and right to our bedrooms. These news form part of our everyday menu of the facts and fictions of life. For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch with the world. We have not installed the jury system whose members are overly protected from publicity lest they lose their impartiality. x x x. Our judges are learned in the law and trained to disregard off-court evidence and on-camera performances of parties to a litigation. Their mere exposure to publications and publicity stunts does not per se fatally infect their impartiality.

At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, the records do not show that the trial judge developed actual bias against appellant as a consequence of the extensive media coverage of the pre-trial and trial of his case. The totality of circumstances of the case does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity which is incapable of change even by evidence presented during the trial. Appellant has the burden to prove this actual bias and he has not discharged the burden. We expounded further on this doctrine in the subsequent case of Webb v. Hon. Raul de Leon, etc. (247 SCRA 652 [1995]) and its companion cases, viz.: Again, petitioners raise the effect of prejudicial publicity on their right to due process while undergoing preliminary investigation. We find no procedural impediment to its early invocation considering the substantial risk to their liberty whole undergoing a preliminary investigation. Xxx The democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its excessiveness has been aggravated by kinetic developments in the telecommunications industry. For sure, few cases can match the high volume and high velocity of publicity that attended the preliminary investigation of the case at bar. Our daily diet of facts and fiction about the case continues unabated even today. Commentators still bombard the public with views not too many of which are sober and sublime. Indeed, even the principal actors in the case the NBI, the respondents, their lawyers and their sympathizers have participated in this media blitz. The possibility of media abuses and their threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press and public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, it was wisely held: xxx (a) The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates conclusively that at the time this Nation s organic laws were adopted, criminal trials both here and in England had long been presumptively open, thus giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality. In addition, the significant community therapeutic value of public trials was recognized: when a shocking crime occurs, a community reaction of outrage and public protest often follows, and thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. To work effectively, it is important that society s criminal process satisfy the appearance of justice, Offutt v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be provided by allowing people to observe such process. From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, it must be concluded that a presumption of openness inheres in the very nature of a criminal trial under this Nation s system of justice, Cf., e.g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038. (b) The freedoms of speech, press, and assembly, expressly guaranteed by the First Amendment, share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as give meaning to those explicit guarantees; the First Amendment right to receive information and ideas means, in the context of trials, that the guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom

doors which had long been open to the public at the time the First Amendment was adopted. Moreover, the right of assembly is also relevant, having been regarded not only as an independent right but also as a catalyst to augment the free exercise of the other First Amendment rights with which it was deliberately linked by the draftsmen. A trial courtroom is a public place where the people generally and representatives of the media have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place. (c) Even though the Constitution contains no provision which by its terms guarantees to the public the right to attend criminal trials, various fundamental rights, not expressly guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights. The right to attend criminal trial is implicit in the guarantees of the First Amendment: without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated. Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. v. Alejandro, et al., we held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing in the records that will prove that the tone and content of the publicity that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not appear that they considered any extra-record evidence except evidence properly adduced by the parties. The length of time the investigation was conducted despite it summary nature and the generosity with which they accommodated the discovery motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity. Applying the above ruling, we hold that there is not enough evidence to warrant this Court to enjoin the preliminary investigation of the petitioner by the respondent Ombudsman. Petitioner needs to offer more than hostile headlines to discharge his burden of proof. He needs to show more than weighty social science evidence to successfully prove the impaired capacity of a judge to render a bias-free decision. Well to note, the cases against the petitioner are still undergoing preliminary investigation by a special panel of prosecutors in the office of the respondent Ombudsman. No allegation whatsoever has been made by the petitioner that the minds of the members of this special panel have already been infected by bias because of the pervasive prejudicial publicity against him. Indeed, the special panel has yet to come out with its findings and the Court cannot second guess whether its recommendation will be unfavorable to the petitioner. (Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001, En Banc [Puno])

The Right against Self-Incrimination 228. Discuss the types of immunity statutes. Which has broader scope of protection?

Held: 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-andderivative-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]) 229. Is the grant of immunity to an accused willing to testify for the government a special privilege and therefore must be strictly construed against the accused? Held: [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--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-derivativeuse 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, 805806, April 26, 1994, En Banc [Puno])

230.

May the right against self-incrimination be validly invoked during inquiry in aid of legislation?

Held: Now to another matter. It 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 . (Maurice A. Hutcheson v. U.S., 369 US 599) In another case x x x the mere semblance of legislative purpose would not justify an inquiry in the face of the Bill of Rights. The critical element is the existence of, and the weight to be ascribed to, the interest of the Congress in demanding disclosures from an unwilling witness. We cannot simply assume, however, that every congressional investigation is justified by a public need that over-balances any private rights affected. To do so would be to abdicate the responsibility placed by the Constitution upon the judiciary to insure that the Congress does not unjustifiably encroach upon an individual s right to privacy nor abridge his liberty of speech, press, religion or assembly. (Watkins v. US, 354 USS 178 citing US v. Rumely, 345 US 41) One of the basic rights guaranteed by the Constitution to an individual is the right against selfincrimination (Sec. 17, Art. III of the Constitution). This right construed as the right to remain completely silent may be availed of by the accused in a criminal case; but it may be invoked by other witnesses only as questions are asked of them. This distinction is enunciated by the Court in Romeo Chavez v. The Honorable Court of Appeals, et al. (G.R. No. L-29169, August 19, 1968, 24 SCRA 663) thus

Petitioner, as accused, occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at him, an accused may altogether refuse to take the witness stand and refuse to answer any and all questions. Moreover, this right of the accused is extended to respondents in administrative investigations but only if they partake of the nature of a criminal proceeding or analogous to a criminal proceeding. In Galman v. Pamaran (G.R. Nos. 71208-09, August 30, 1985, 138 SCRA 294), the Court reiterated the doctrine in Cabal v. Kapunan (6 SCRA 1059) to illustrate the right of witnesses to invoke the right against self-incrimination not only in criminal proceedings but also in all other types of suit. It was held that: We did not therein state that since he is not an accused and the case is not a criminal case, Cabal cannot refuse to take the witness stand and testify, and that he can invoke his right against selfincrimination only when a question which tends to elicit an answer that will incriminate him is propounded to him. Clearly then, it is not the character of the suit involved but the nature of the proceedings that controls. The privilege has consistently been held to extend to all proceedings sanctioned by law and to all cases in which punishment is sought to be visited upon a witness, whether a party or not. We do not here modify these doctrines. If we presently rule that petitioners may not be compelled by the respondent Committee to appear, testify and produce evidence before it, it is only because we hold that the questioned inquiry is not in aid of legislation and, if pursued, would be violative of the principle of separation of powers between the legislative and the judicial departments of government, ordained by the Constitution. (Bengzon, Jr. v. Senate Blue Ribbon Committee, 203 SCRA 767, Nov. 20, 1991, En Banc [Padilla]) The Right against Double Jeopardy 231. Discuss the two kinds of double jeopardy.

Held: Our Bill of Rights deals with two (2) kinds of double jeopardy. The first sentence of Clause 20, Section 1, Article III of the Constitution ordains that no person shall be twice put in jeopardy of punishment for the same offense. The second sentence of said clause provides that if an act is punishable by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. Thus, the first sentence prohibits double jeopardy of punishment for the same offense whereas, the second contemplates double jeopardy of punishment for the same act. Under the first sentence, one may be twice put in jeopardy of punishment of the same act, provided that he is charged with different offenses, or the offense charged in one case is not included in, or does not include, the crime charged in the other case. The second sentence applies, even if the offense charged are not the same, owing to the fact that one constitutes a violation of an ordinance and the other a violation of statute. If the two charges are based on one and the same act, conviction or acquittal under either the law or the ordinance shall bar a prosecution under the other. Incidentally, such conviction or acquittal is not indispensable to sustain the plea of double jeopardy of punishment or the same offense. So long as jeopardy has been attached under one of the informations charging said offense, the defense may be availed of in the other case involving the same offense, even if there has been neither conviction nor acquittal in either case. 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) 232. What must be proved to substantiate a claim of double jeopardy? When may legal jeopardy attach? Held: To substantiate a claim of double jeopardy, the following must be proven: (1) A first jeopardy must have attached prior to the second; (2) the first jeopardy must have been validly terminated; (3) the second jeopardy must be for the same offense, or the second offense includes or is necessarily included in the offense charged in the first information, or is an attempt to commit the same or is a frustration thereof. Legal jeopardy attaches only: (1) upon a valid indictment; (b) before a competent court; (c) after arraignment; (d) when a valid plea has been entered; and (e) the case was dismissed or otherwise terminated without the express consent of the accused. (Cuison v. CA, 289 SCRA 159, April 15, 1998 [Panganiban]) 233. In its decision in a criminal case, the Judge promulgated only the civil aspect of the case, but not the criminal. Will the promulgation of the criminal aspect later constitute double jeopardy? Held: Petitioner contends that "the promulgation by Judge Ramos on April 4, 1995 of the Respondent Court's decision of June 30, 1991 by reading its dispositive portion has effectively terminated the criminal cases against the petitioner x x x." In other words, petitioner claims that the first jeopardy attached at that point. The Court is not persuaded. As a rule, a criminal prosecution includes a civil action for the recovery of indemnity. Hence, a decision in such case disposes of both the criminal as well as the civil liabilities of an accused. Here, trial court promulgated only the civil aspect of the case, but not the criminal. [T]he promulgation of the CA Decision was not complete. In fact and in truth, the promulgation was not merely incomplete; it was also void. In excess of its jurisdiction, the trial judge rendered a substantially incomplete promulgation on April 4, 1995, and he repeated his mistake in his April 12, 1996 Order. We emphasize that grave abuse of discretion rendered the aforementioned act of the trial court void. Since the criminal cases have not yet been terminated, the first jeopardy has not yet attached. Hence, double jeopardy cannot prosper as a defense. We must stress that Respondent Court's questioned Decision did not modify or amend its July 30, 1991 Decision. It merely ordered the promulgation of the judgment of conviction and the full execution of the penalty it had earlier imposed on petitioner. (Cuison v. CA, 289 SCRA 159, April 15, 1998 [Panganiban])

234. What are the exceptions to the rule that the dismissal of a criminal case resulting in acquittal made with the express consent of the accused or upon his own motion will not place the accused in double jeopardy? Held: In the cases at bar, the order of dismissal based on a violation of the right to speedy trial was made upon motion by counsel for petitioner before the trial court. It was made at the instance of the accused before the trial court, and with his express consent. Generally, the dismissal of a criminal case resulting in acquittal made with the express consent of the accused or upon his own motion will not

place the accused in double jeopardy. However, this rule admits of two exceptions, namely: insufficiency of evidence and denial of the right to speedy trial (People v. Bans, 239 SCRA 48, 55 [1994]). Double jeopardy may attach when the proceedings have been prolonged unreasonably, in violation of the accused s right to speedy trial (Commission on Elections v. Court of Appeals, 229 SCRA 501, 507 [1994]). (Almario v. Court of Appeals, 355 SCRA 1, Mar. 22, 2001, 2nd Div. [Quisumbing] 235. If the criminal case was dismissed predicated on the right of the accused to speedy trial, but later the trial court reconsidered its decision and allowed the case to be reinstated as it noted that the delay in the trial was due to circumstances beyond the control of the parties and of the trial court, i.e., the presiding judge was promoted to the Court of Appeals, and his successor as trial judge was not immediately appointed, nor another judge detailed to his sala, is there violation of the accused s right against double jeopardy? Held: Here we must inquire whether there was unreasonable delay in the conduct of the trial so that violation of the right to speedy trial of the accused x x x resulted. For it must be recalled that in the application of the constitutional guaranty of the right to speedy disposition of cases, particular regard must also be taken of the facts and circumstances peculiar to each case (Socrates v. Sandiganbayan, 253 SCRA 773, 788 [1996]). Both the trial court and the appellate court noted that after pre-trial of petitioner s case was terminated x x x continuous trial was set x x x. The scheduled hearings, however, were cancelled when the presiding judge was promoted to the Court of Appeals, and his successor as trial judge was not immediately appointed, nor another judge detailed to his sala. Xxx As observed by respondent appellate court, delay in the trial was due to circumstances beyond the control of the parties and of the trial court. X x x. Thus, after a closer analysis of these successive events, the trial court realized that the dates of the hearings were transferred for valid grounds. Hence, the trial court set aside its initial order and reinstated the cases against petitioner, which order the appellate court later sustained. That there was no unreasonable delay of the proceedings is apparent from the chronology of the hearings with the reasons for their postponements or transfers. X x x There being no oppressive delay in the proceedings, and no postponements unjustifiably sought, we concur with the conclusion reached by the Court of Appeals that petitioner s right to speedy trial had not been infringed. Where the right of the accused to speedy trial had not been violated, there was no reason to support the initial order of dismissal. It follows that petitioner cannot invoke the constitutional right against double jeopardy when that order was reconsidered seasonably (People v. Leviste, 255 SCRA 238, 249 [1996]). For as petitioner s right to speedy trial was not transgressed, this exception to the fifth element of double jeopardy that the defendant was acquitted or convicted, or the case was dismissed or otherwise terminated without the express consent of the accused was not met. The trial court s initial order of dismissal was upon motion of petitioner s counsel, hence made with the express consent of petitioner. That being the case, despite the reconsideration of said order, double jeopardy did not attach. As this Court had occasion to rule in People v. Tampal (244 SCRA 202), reiterated in People v. Leviste (Ibid.), where we overturned an order of dismissal by the trial court predicated on the right to speedy trial It is true that in an unbroken line of cases, we have held that the dismissal of cases on the ground of failure to prosecute is equivalent to an acquittal that would bar further prosecution of the accused for the same offense. It must be stressed, however, that these dismissals were predicated on the clear right of the accused to speedy trial. These cases are not applicable to the petition at bench considering that the

right of the private respondents to speedy trial has not been violated by the State. For this reason, private respondents cannot invoke their right against double jeopardy. Both the trial court and the Court of Appeals were thus not in error when they allowed reinstatement of the cases against petitioner. (Almario v. Court of Appeals, 355 SCRA 1, Mar. 22, 2001, 2nd Div. [Quisumbing] 236. Is there double jeopardy when an accused was acquitted in a criminal case for reckless imprudence but the civil aspect of the case was elevated to the Court of Appeals and the latter found him liable for indemnity and damages? Held: Petitioner opines that the Court of Appeals should not have disturbed the findings of the trial court on the lack of negligence or reckless imprudence under the guise of determining his civil liability. He argues that the trial court s finding that he was neither imprudent nor negligent was the basis for his acquittal, and not reasonable doubt. He submits that in finding him liable for indemnity and damages, the appellate court not only placed his acquittal in suspicion, but also put him in double jeopardy. Private respondents contend that while the trial court found that petitioner s guilt had not been proven beyond reasonable doubt, it did not state in clear and unequivocal terms that petitioner was not recklessly imprudent or negligent. Hence, impliedly the trial court acquitted him on reasonable doubt. Since civil liability is not extinguished in criminal cases, if the acquittal is based on reasonable doubt, the Court of Appeals had to review the findings of the trial court to determine if there was a basis for awarding indemnity and damages. Preliminarily, petitioner s claim that the decision of the appellate court awarding indemnity placed him in double jeopardy is misplaced. X x x. When a person is charged with an offense and the case is terminated either by acquittal or conviction or in any manner without the consent of the accused, the latter cannot again be charged with the same or identical offense (Melo v. People, 85 Phil. 766, 768 [1950]). This is double jeopardy. For double jeopardy to exist, the following elements must be established: (1) a first jeopardy must have attached prior to the second; (2) the first jeopardy must have terminated; and (3) the second jeopardy must be for the same offense as the first (People v. Bocar, 138 SCRA 166, 171 [1985]). In the instant case, petitioner had once been placed in jeopardy by the filing of Criminal Case No. 066 and the jeopardy was terminated by his discharge. The judgment of acquittal became immediately final. Note, however, that what was elevated to the Court of Appeals by private respondents was the civil aspect of Criminal Case No. 066. Petitioner was not charged anew in CA-G.R. CV No. 19240 with a second criminal offense identical to the first offense. The records clearly show that no second criminal offense was being imputed to petitioner on appeal. In modifying the lower court s judgment, the appellate court did not modify the judgment of acquittal. Nor did it order the filing of a second criminal cases against petitioner for the same offense. Obviously, therefore, there was no second jeopardy to speak of. Petitioner s claim of having been placed in double jeopardy is incorrect. Our law recognizes two kinds of acquittal, with different effects on the civil liability of the accused. First is an acquittal on the ground that the accused is not the author of the act or omission complained of. This instance closes the door to civil liability, for a person who has been found to be not the perpetrator of any act or omission cannot and can never be held liable for such or omission (Almeida, et al. v. Abaroa, 8 Phil. 178, 181 [1907]; other citations omitted.) There being no delict, civil liability ex delicto is out of the question, and the civil action, if any, which may be instituted must be based on grounds other than the delict complained of. This is the situation contemplated in Rule 111 of the Rules of Court. The second instance is an acquittal based on reasonable doubt on the guilt of the accused. In this case, even if the guilt of the accused has not been satisfactorily established, he is not exempt from civil liability which may be proved by preponderance of evidence only (Manahan, Jr. v. Court of Appeals, 255 SCRA 202, 214 [1996], citing Padilla v. Court of Appeals, 129 SCRA 558 [1984]). This is the situation contemplated in Article 29 of the Civil Code, where the civil action for damages is for the same act or

omission. Although the two actions have different purposes, the matters discussed in the civil case are similar to those discussed in the criminal case. However, the judgment in the criminal proceeding cannot be read in evidence in the civil action to establish any fact there determined, even though both actions involve the same act or omission (Almeida Chantangco and Lete v. Abaroa, supra note 13, at 1061). The reason for this rule is that the parties are not the same and secondarily, different rules of evidence are applicable. Hence, notwithstanding herein petitioner s acquittal, the Court of Appeals in determining whether Article 29 applied, was not precluded from looking into the question of petitioner s negligence or reckless imprudence. (Manantan v. Court of Appeals, 350 SCRA 387, Jan. 29, 2001, 2nd Div. [Quisumbing])

The Right against Ex Post Facto Laws and Bills of Attainder 237. What is a bill of attainder? Is P.D. 1866 a bill of attainder?

Held: [T]he Court, in People v. Ferrer (G.R. Nos. L-32613-14, December 27, 1972, 48 SCRA 382), defined a bill of attainder as a legislative act which inflicts punishment on individuals or members of a particular group without a judicial trial. Essential to a bill of attainder are a specification of certain individuals or a group of individuals, the imposition of a punishment, penal or otherwise, and the lack of judicial trial. This last element, the total lack of court intervention in the finding of guilt and the determination of the actual penalty to be imposed, is the most essential. P.D. No. 1866 does not possess the elements of a bill of attainder. It does not seek to inflict punishment without a judicial trial. Nowhere in the measure is there a finding of guilt and an imposition of a corresponding punishment. What the decree does is to define the offense and provide for the penalty that may be imposed, specifying the qualifying circumstances that would aggravate the offense. There is no encroachment on the power of the court to determine after due hearing whether the prosecution has proved beyond reasonable doubt that the offense of illegal possession of firearms has been committed and that the qualifying circumstances attached to it has been established also beyond reasonable doubt as the Constitution and judicial precedents require. (Misolas v. Panga, 181 SCRA 648, 659-660, Jan. 30, 1990, En Banc [Cortes]) 238. What is an ex post facto law? Is R.A. No. 8249 an ex post facto law?

Held: Ex post facto law, generally, prohibits retrospectivity of penal laws. R.A. 8249 is not a penal law. It is a substantive law on jurisdiction which is not penal in character. Penal laws are those acts of the Legislature which prohibit certain acts and establish penalties for their violations; or those that define crimes, treat of their nature, and provide for their punishment. R.A. 7975, which amended P.D. 1606 as regards the Sandiganbayan s jurisdiction, its mode of appeal and other procedural matters, has been declared by the Court as not a penal law, but clearly a procedural statute, i.e., one which prescribes rules of procedure by which courts applying laws of all kinds can properly administer justice. Not being a penal law, the retroactive application of R.A. 8249 cannot be challenged as unconstitutional. Petitioner s and intervenors contention that their right to a two-tiered appeal which they acquired under R.A. 7975 has been diluted by the enactment of R.A. 8249, is incorrect. The same contention has already been rejected by the court several times considering that the right to appeal is not a natural right but statutory in nature that can be regulated by law. The mode of procedure provided for in the statutory right of appeal is not included in the prohibition against ex post facto laws. R.A. 8249 pertains only to matters of procedure, and being merely an amendatory statute it does not partake the nature of an ex post facto law. It does not mete out a penalty and, therefore, does not come within the prohibition. Moreover, the law did not alter the rules of evidence or the mode of trial. It has been ruled that adjective statutes may be made applicable to actions pending and unresolved at the time of their passage.

At any rate, R.A. 8249 has preserved the accused s right to appeal to the Supreme Court to review questions of law. On the removal of the intermediate review of facts, the Supreme Court still has the power of review to determine if the presumption of innocence has been convincingly overcome. (Panfilo M. Lacson v. The Executive Secretary, et. al., G.R. No. 128096, Jan. 20, 1999 [Martinez])

ADMINISTRATIVE LAW 239. Describe the Administrative Code of 1987

Held: The Code is a general law and incorporates in a unified document the major structural, functional and procedural principles of governance (Third Whereas Clause, Administrative Code of 1987) and embodies changes in administrative structures and procedures designed to serve the people. (Fourth Whereas Clause, Administrative Code of 1987) The Code is divided into seven (7) books. These books contain provisions on the organization, powers and general administration of departments, bureaus and offices under the executive branch, the organization and functions of the Constitutional Commissions and other constitutional bodies, the rules on the national government budget, as well as guidelines for the exercise by administrative agencies of quasi-legislative and quasi-judicial powers. The Code covers both the internal administration, i.e., internal organization, personnel and recruitment, supervision and discipline, and the effects of the functions performed by administrative officials on private individuals or parties outside government. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno]) 240. What is administrative power?

Held: Administrative power is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs. It enables the President to fix a uniform standard of administrative efficiency and check the official conduct of his agents. To this end, he can issue administrative orders, rules and regulations. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno]) 241. What is an administrative order?

Held: An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative operation of government. It must be in harmony with the law and should be for the sole purpose of implementing the law and carrying out the legislative policy. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno]) 242. What is the Government of the Republic of the Philippines?

Answer: The Government of the Republic of the Philippines refers to the corporate governmental entity through which the functions of the government are exercised throughout the Philippines, including, save as the contrary appears from the context, the various arms through which political authority is made effective in the Philippines, whether pertaining to the autonomous regions, the provincial, city, municipal or barangay subdivisions or other forms of local government. (Sec. 2[1], Introductory Provisions, Executive Order No. 292) 243. What is a government instrumentality? instrumentality? What are included in the term government

Answer: A government instrumentality refers to any agency of the national government, not integrated within the department framework, vested with special functions or jurisdiction by law, endowed with

some if not all corporate powers, administering special funds, enjoying operational autonomy, usually through a charter. The term includes regulatory agencies, chartered institutions and government-owned or controlled corporations. (Sec. 2[10], Introductory Provisions, Executive Order No. 292) 244. What is a regulatory agency?

Answer: A regulatory agency refers to any agency expressly vested with jurisdiction to regulate, administer or adjudicate matters affecting substantial rights and interest of private persons, the principal powers of which are exercised by a collective body, such as a commission, board or council. (Sec. 2[11], Introductory Provisions, Executive Order No. 292) 245. What is a chartered institution?

Answer: A chartered institution refers to any agency organized or operating under a special charter, and vested by law with functions relating to specific constitutional policies or objectives. This term includes state universities and colleges and the monetary authority of the State. (Section 2[12], Introductory Provisions, Executive Order No. 292) 246. When is a government-owned or controlled corporation deemed to be performing proprietary function? When is it deemed to be performing governmental function? Held: Government-owned or controlled corporations may perform governmental or proprietary functions or both, depending on the purpose for which they have been created. If the purpose is to obtain special corporate benefits or earn pecuniary profit, the function is proprietary. If it is in the interest of health, safety and for the advancement of public good and welfare, affecting the public in general, the function is governmental. Powers classified as proprietary are those intended for private advantage and benefit. (Blaquera v. Alcala, 295 SCRA 366, 425, Sept. 11, 1998, En Banc [Purisima]) 247. Does the petition for annulment of proclamation of a candidate merely involve the exercise by the COMELEC of its administrative power to review, revise and reverse the actions of the board of canvassers and, therefore, justifies non-observance of procedural due process, or does it involve the exercise of the COMELEC's quasi-judicial function? Held: Taking cognizance of private respondent's petitions for annulment of petitioner's proclamation, COMELEC was not merely performing an administrative function. The administrative powers of the COMELEC include the power to determine the number and location of polling places, appoint election officials and inspectors, conduct registration of voters, deputize law enforcement agencies and governmental instrumentalities to ensure free, orderly, honest, peaceful and credible elections, register political parties, organizations or coalition, accredit citizen's arms of the Commission, prosecute election offenses, and recommend to the President the removal of or imposition of any other disciplinary action upon any officer or employee it has deputized for violation or disregard of its directive, order or decision. In addition, the Commission also has direct control and supervision over all personnel involved in the conduct of election. However, the resolution of the adverse claims of private respondent and petitioner as regards the existence of a manifest error in the questioned certificate of canvass requires the COMELEC to act as an arbiter. It behooves the Commission to hear both parties to determine the veracity of their allegations and to decide whether the alleged error is a manifest error. Hence, the resolution of this issue calls for the exercise by the COMELEC of its quasi-judicial power. It has been said that where a power rests in judgment or discretion, so that it is of judicial nature or character, but does not involve the exercise of functions of a judge, or is conferred upon an officer other than a judicial officer, it is deemed quasi-judicial. The COMELEC therefore, acting as quasi-judicial tribunal, cannot ignore the requirements of procedural due process in resolving the petitions filed by private respondent. (Federico S. Sandoval v. COMELEC, G.R. No. 133842, Jan. 26, 2000 [Puno])

248.

Discuss the Doctrine of Primary Jurisdiction (or Prior Resort).

Held: Courts cannot and will not resolve a controversy involving a question which is within the jurisdiction of an administrative tribunal, especially where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact. In recent years, it has been the jurisprudential trend to apply this doctrine to cases involving matters that demand the special competence of administrative agencies even if the question involved is also judicial in character. It applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such case, the judicial process is suspended pending referral of such issues to the administrative body for its view. In cases where the doctrine of primary jurisdiction is clearly applicable, the court cannot arrogate unto itself the authority to resolve a controversy, the jurisdiction over which is lodged with an administrative body of special competence. (Villaflor v. CA, 280 SCRA 287) 249. Discuss the Doctrine of Exhaustion of Administrative Remedies. Enumerate exceptions thereto.

Held: 1. Before a party is allowed to seek the intervention of the court, it is a pre-condition that he should have availed of all the means of administrative processes afforded him. Hence, if a remedy within the administrative machinery can still be resorted to by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction then such remedy should be exhausted first before the court s judicial power can be sought. The premature invocation of court s jurisdiction is fatal to one s cause of action. Accordingly, absent any finding of waiver or estoppel the case is susceptible of dismissal for lack of cause of action. This doctrine of exhaustion of administrative remedies was not without its practical and legal reasons, for one thing, availment of administrative remedy entails lesser expenses and provides for a speedier disposition of controversies. It is no less true to state that the courts of justice for reasons of comity and convenience will shy away from a dispute until the system of administrative redress has been completed and complied with so as to give the administrative agency concerned every opportunity to correct its error and to dispose of the case. This doctrine is disregarded: 1) when there is a violation of due process; 2) when the issue involved is purely a legal question; 3) when the administrative action is patently illegal amounting to lack or excess of jurisdiction; 4) when there is estoppel on the part of the administrative agency concerned; 5) when there is irreparable injury; 6) when the respondent is a department secretary whose acts as an alter ego of the President bears the implied and assumed approval of the latter; 7) when to require exhaustion of administrative remedies would be unreasonable; 8) when it would amount to a nullification of a claim; 9) when the subject matter is a private land in land case proceeding; 10) when the rule does not provide a plain, speedy and adequate remedy, and 11) when there are circumstances indicating the urgency of judicial intervention. (Paat v. CA, 266 SCRA 167 [1997]) 2. Non-exhaustion of administrative remedies is not jurisdictional. It only renders the action premature, i.e., claimed cause of action is not ripe for judicial determination and for that reason a party has no cause of action to ventilate in court. (Carale v. Abarintos, 269 SCRA 132)

250. When may the Government not validly invoke the rule that prescription does not run against the State? Held: While it is true that prescription does not run against the State, the same may not be invoked by the government in this case since it is no longer interested in the subject matter. While Camp Wallace may have belonged to the government at the time Rafael Galvez s title was ordered cancelled in Land Registration Case No. N-361, the same no longer holds true today. Republic Act No. 7227, otherwise known as the Base Conversion and Development Act of 1992, created the Bases Conversion and Development Authority. X x x Xxx With the transfer of Camp Wallace to the BCDA, the government no longer has a right or interest to protect. Consequently, the Republic is not a real party in interest and it may not institute the instant action. Nor may it raise the defense of imprescriptibility, the same being applicable only in cases where the government is a party in interest. X x x. Being the owner of the areas covered by Camp Wallace, it is the Bases Conversion and Development Authority, not the Government, which stands to be benefited if the land covered by TCT No. T-5710 issued in the name of petitioner is cancelled. Nonetheless, it has been posited that the transfer of military reservations and their extensions to the BCDA is basically for the purpose of accelerating the sound and balanced conversion of these military reservations into alternative productive uses and to enhance the benefits to be derived from such property as a measure of promoting the economic and social development, particularly of Central Luzon and, in general, the country s goal for enhancement (Section 2, Republic Act No. 7227). It is contended that the transfer of these military reservations to the Conversion Authority does not amount to an abdication on the part of the Republic of its interests, but simply a recognition of the need to create a body corporate which will act as its agent for the realization of its program. It is consequently asserted that the Republic remains to be the real party in interest and the Conversion Authority merely its agent. We, however, must not lose sight of the fact that the BCDA is an entity invested with a personality separate and distinct from the government. X x x It may not be amiss to state at this point that the functions of government have been classified into governmental or constituent and proprietary or ministrant. While public benefit and public welfare, particularly, the promotion of the economic and social development of Central Luzon, may be attributable to the operation of the BCDA, yet it is certain that the functions performed by the BCDA are basically proprietary in nature. The promotion of economic and social development of Central Luzon, in particular, and the country s goal for enhancement, in general, do not make the BCDA equivalent to the Government. Other corporations have been created by government to act as its agents for the realization of its programs, the SSS, GSIS, NAWASA and the NIA, to count a few, and yet, the Court has ruled that these entities, although performing functions aimed at promoting public interest and public welfare, are not government-function corporations invested with governmental attributes. It may thus be said that the BCDA is not a mere agency of the Government but a corporate body performing proprietary functions. Xxx Having the capacity to sue or be sued, it should thus be the BCDA which may file an action to cancel petitioner s title, not the Republic, the former being the real party in interest. One having no right or interest to protect cannot invoke the jurisdiction of the court as a party plaintiff in an action (Ralla v.

Ralla, 199 SCRA 495 [1991]). A suit may be dismissed if the plaintiff or the defendant is not a real party in interest. X x x. However, E.B. Marcha Transport Co., Inc. v. IAC (147 SCRA 276 [1987]) is cited as authority that the Republic is the proper party to sue for the recovery of possession of property which at the time of the installation of the suit was no longer held by the national government body but by the Philippine Ports Authrotiy. In E.B. Marcha, the Court ruled: It can be said that in suing for the recovery of the rentals, the Republic of the Philippines, acted as principal of the Philippine Ports Authority, directly exercising the commission it had earlier conferred on the latter as its agent. We may presume that, by doing so, the Republic of the Philippines did not intend to retain the said rentals for its own use, considering that by its voluntary act it had transferred the land in question to the Philippine Ports Authority effective July 11, 1974. The Republic of the Philippines had simply sought to assist, not supplant, the Philippine Ports Authority, whose title to the disputed property it continues to recognize. We may expect the that the said rentals, once collected by the Republic of the Philippines, shall be turned over by it to the Philippine Ports Authority conformably to the purposes of P.D. No. 857. E.B. Marcha is, however, not on all fours with the case at bar. In the former, the Court considered the Republic a proper party to sue since the claims of the Republic and the Philippine Ports Authority against the petitioner therein were the same. To dismiss the complaint in E.B. Marcha would have brought needless delay in the settlement of the matter since the PPA would have to refile the case on the same claim already litigated upon. Such is not the case here since to allow the government to sue herein enables it to raise the issue of imprescriptibility, a claim which is not available to the BCDA. The rule that prescription does not run against the State does not apply to corporations or artificial bodies created by the State for special purposes, it being said that when the title of the Republic has been divested, its grantees, although artificial bodies of its own creation, are in the same category as ordinary persons (Kingston v. LeHigh Valley Coal Co., 241 Pa 469). By raising the claim of imprescriptibility, a claim which cannot be raised by the BCDA, the Government not only assists the BCDA, as it did in E.B. Marcha, it even supplants the latter, a course of action proscribed by said case. Moreover, to recognize the Government as a proper party to sue in this case would set a bad precedent as it would allow the Republic to prosecute, on behalf of government-owned or controlled corporations, causes of action which have already prescribed, on the pretext that the Government is the real party in interest against whom prescription does not run, said corporations having been created merely as agents for the realization of government programs. It should also be noted that petitioner is unquestionably a buyer in good faith and for value, having acquired the property in 1963, or 5 years after the issuance of the original certificate of title, as a third transferee. If only not to do violence and to give some measure of respect to the Torrens System, petitioner must be afforded some measure of protection. (Shipside Incorporated v. Court of Appeals, 352 SCRA 334, Feb. 20, 2001, 3rd Div. [Melo]) 251. Discuss the nature and functions of the NTC, and analyze its powers and authority as well as the laws, rules and regulations that govern its existence and operations. Held: The NTC was created pursuant to Executive Order No. 546, promulgated on July 23, 1979. It assumed the functions formerly assigned to the Board of Communications and the Communications Control Bureau, which were both abolished under the said Executive Order. Previously, the NTC s function were merely those of the defunct Public Service Commission (PSC), created under Commonwealth Act No. 146, as amended, otherwise known as the Public Service Act, considering that the Board of Communications was the successor-in-interest of the PSC. Under Executive Order No. 125-

A, issued in April 1987, the NTC became an attached agency of the Department of Transportation and Communications. In the regulatory communications industry, the NTC has the sole authority to issue Certificates of Public Convenience and Necessity (CPCN) for the installation, operation, and maintenance of communications facilities and services, radio communications systems, telephone and telegraph systems. Such power includes the authority to determine the areas of operations of applicants for telecommunications services. Specifically, Section 16 of the Public Service Act authorizes the then PSC, upon notice and hearing, to issue Certificates of Public Convenience for the operation of public services within the Philippines whenever the Commission finds that the operation of the public service proposed and the authorization to do business will promote the public interests in a proper and suitable manner. (Commonwealth Act No. 146, Section 16[a]) The procedure governing the issuance of such authorizations is set forth in Section 29 of the said Act x x x. (Republic v. Express Telecommunication Co., Inc., 373 SCRA 316, Jan. 15, 2002, 1st Div. [Ynares-Santiago]) 252. Is the filing of the administrative rules and regulations with the UP Law Center the operative act that gives the rules force and effect? Held: In granting Bayantel the provisional authority to operate a CMTS, the NTC applied Rule 15, Section 3 of its 1978 Rules of Practice and Procedure, which provides: Sec. 3. Provisional Relief. Upon the filing of an application, complaint or petition or at any stage thereafter, the Board may grant on motion of the pleader or on its own initiative, the relief prayed for, based on the pleading, together with the affidavits and supporting documents attached thereto, without prejudice to a final decision after completion of the hearing which shall be called within thirty (30) days from grant of authority asked for. (italics ours) Respondent Extelcom, however, contends that the NTC should have applied the Revised Rules which were filed with the Office of the National Administrative Register on February 3, 1993. These Revised Rules deleted the phrase on its own initiative ; accordingly, a provisional authority may be issued only upon filing of the proper motion before the Commission. In answer to this argument, the NTC, through the Secretary of the Commission, issued a certification to the effect that inasmuch as the 1993 Revised Rules have not been published in a newspaper of general circulation, the NTC has been applying the 1978 Rules. The absence of publication, coupled with the certification by the Commissioner of the NTC stating that the NTC was still governed by the 1987 Rules, clearly indicate that the 1993 Revised Rules have not taken effect at the time of the grant of the provisional authority to Bayantel. The fact that the 1993 Revised Rules were filed with the UP Law Center on February 3, 1993 is of no moment. There is nothing in the Administrative Code of 1987 which implies that the filing of the rules with the UP Law Center is the operative act that gives the rules force and effect. Book VII, Chapter 2, Section 3 thereof merely states: Filing. (1) Every agency shall file with the University of the Philippines Law Center three (3) certified copies of every rule adopted by it. Rules in force on the date of effectivity of this Code which are not filed within three (3) months from the date shall not thereafter be the basis of any sanction against any party or persons. (2) The records officer of the agency, or his equivalent functionary, shall carry out the requirements of this section under pain of disciplinary action. (3) A permanent register of all rules shall be kept by the issuing agency and shall be open to public inspection.

The National Administrative Register is merely a bulletin of codified rules and it is furnished only to the Office of the President, Congress, all appellate courts, the National Library, other public offices or agencies as the Congress may select, and to other persons at a price sufficient to cover publication and mailing or distribution costs (Administrative Code of 1987, Book VII, Chapter 2, Section 7). In a similar case, we held: This does not imply, however, that the subject Administrative Order is a valid exercise of such quasilegislative power. The original Administrative Order issued on August 30, 1989, under which the respondents filed their applications for importations, was not published in the Official Gazette or in a newspaper of general circulation. The questioned Administrative Order, legally, until it is published, is invalid within the context of Article 2 of Civil Code, which reads: Article 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette (or in a newspaper of general circulation in the Philippines), unless it is otherwise provided. X x x The fact that the amendments to Administrative Order No. SOCPEC 89-08-01 were filed with, and published by the UP Law Center in the National Administrative Register, does not cure the defect related to the effectivity of the Administrative Order. This Court, in Tanada v. Tuvera (G.R. No. L-63915, December 29, 1986, 146 SCRA 446) stated, thus: We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity is fixed by the legislature. Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative power or, at present, directly conferred by the Constitution. Administrative Rules and Regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. Xxx We agree that the publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws. The Administrative Order under consideration is one of those issuances which should be published for its effectivity, since its purpose is to enforce and implement an existing law pursuant to a valid delegation, i.e., P.D. 1071, in relation to LOI 444 and EO 133 (Philippine International Trading Corp. v. Angeles, 263 SCRA 421, 446-447 [1996]). Thus, publication in the Official Gazette or a newspaper of general circulation is a condition sine qua non before statutes, rules or regulations can take effect. This is explicit from Executive Order No. 200, which repealed Article 2 of the Civil Code, and which states that:

Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided (E.O. 200, Section 1). The Rules of Practice and Procedure of the NTC, which implements Section 29 of the Public Service Act (C.A. 146, as amended), fall squarely within the scope of these laws, as explicitly mentioned in the case of Tanada v. Tuvera (146 SCRA 446 [1986]). Our pronouncement in Tanada v. Tuvera is clear and categorical. Administrative rules and regulations must be published if their purpose is to enforce or implement existing law pursuant to a valid delegation. The only exception are interpretative regulations, those merely internal in nature, or those so-called letters of instructions issued by administrative superiors concerning the rules and guidelines to be followed by their subordinates in the performance of their duties (PHILSA International Placement & Services Corp. v. Secretary of Labor, G.R. No. 103144, April 4, 2001, 356 SCRA 174). Hence, the 1993 Revised Rules should be published in the Official Gazette or in a newspaper of general circulation before it can take effect. Even the 1993 Revised Rules itself mandates that said Rules shall take effect only after their publication in a newspaper of general circulation (Section 20 thereof). In the absence of such publication, therefore, it is the 1978 Rules that governs. (Republic v. Express Telecommunication Co., Inc., 373 SCRA 316, Jan. 15, 2002, 1st Div. [Ynares-Santiago]) 253. May a person be held liable for violation of an administrative regulation which was not published?

Held: Petitioner insists, however, that it cannot be held liable for illegal exaction as POEA Memorandum Circular No. II, Series of 1983, which enumerated the allowable fees which may be collected from applicants, is void for lack of publication. There is merit in the argument. In Tanada v. Tuvera (136 SCRA 27 [1985]), the Court held, as follows: We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature. Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant to a valid delegation. Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and the public, need not be published. Neither is publication required of the so-called letter of instructions issued by the administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. Applying this doctrine, we have previously declared as having no force and effect the following administrative issuances: a) Rules and Regulations issued by the Joint Ministry of Health-Ministry of Labor and Employment Accreditation Committee regarding the accreditation of hospitals, medical clinics and laboratories (Joint Ministry of Health-Ministry of Labor and Employment Accreditation Committee v. Court of Appeals, 196 SCRA 263 [1991]); b) Letter of Instruction No. 416 ordering the suspension of payments due and payable by distressed copper mining companies to the national government (Caltex Philippines, Inc. v. Court of Appeals, 208 SCRA 726 [1992]); c) Memorandum Circulars issued by the POEA regulating the recruitment of domestic helpers to Hong Kong (Phil. Association of Service Exporters v. Torres, 212

SCRA 298 [1992]); d) Administrative Order No. SOCPEC 89-08-01 issued by the Philippine International Trading Corporation regulating applications for importation from the People s Republic of China (Philippine International Trading Corporation v. Angeles, 263 SCRA 421 [1996]); and e) Corporate Compensation Circular No. 10 issued by the Department of Budget and Management discontinuing the payment of other allowances and fringe benefits to government officials and employees (De Jesus v. Commission on Audit, 294 SCRA 152 [1998). In all these cited cases, the administrative issuances questioned therein were uniformly struck down as they were not published or filed with the National Administrative Register as required by the Administrative Code of 1987 (Administrative Code of 1987, Book VII, chapter 2, Section 3). POEA memorandum Circular No. 2, Series of 1983 must likewise be declared ineffective as the same was never published or filed with the National Administrative Register. POEA Memorandum Circular No. 2, Series of 1983 provides for the applicable schedule of placement and documentation fees for private employment agencies or authority holders. Under the said Order, the maximum amount which may be collected from prospective Filipino overseas workers is P2,500.00. The said circular was apparently issued in compliance with the provisions of Article 32 of the Labor Code x x x. It is thus clear that the administrative circular under consideration is one of those issuances which should be published for its effectivity, since its purpose is to enforce and implement an existing law pursuant to a valid delegation (Philippine International Trading Corporation v. Angeles, supra.). Considering that POEA Administrative Circular No. 2, Series of 1983 has not as yet been published or filed with the National Administrative Register, the same is ineffective and may not be enforced. (Philsa International Placement and Services Corporation v. Secretary of Labor and Employment, 356 SCRA 174, April 4, 2001, 3rd Div., [Gonzaga-Reyes]) 254. Does the publication requirement apply as well to administrative regulations addressed only to a specific group and not to the general public? Held: The Office of the Solicitor General likewise argues that the questioned administrative circular is not among those requiring publication contemplated by Tanada v. Tuvera as it is addressed only to a specific group of persons and not to the general public. Again, there is no merit in this argument. The fact that the said circular is addressed only to a specified group, namely private employment agencies or authority holders, does not take it away from the ambit of our ruling in Tanada v. Tuvera. In the case of Phil. Association of Service Exporters v. Torres ((212 SCRA 298 [1992]), the administrative circulars questioned therein were addressed to an even smaller group, namely Philippine and Hong Kong agencies engaged in the recruitment of workers for Hong Kong, and still the Court ruled therein that, for lack of proper publication, the said circulars may not be enforced or implemented. Our pronouncement in Tanada v. Tuvera is clear and categorical. Administrative rules and regulations must be published if their purpose is to enforce or implement existing law pursuant to a valid delegation. The only exceptions are interpretative regulations, those merely internal in nature, or those so-called letters of instructions issued by administrative superiors concerning the rules and guidelines to be followed by their subordinates in the performance of their duties. Administrative Circular No. 2, Series of 1983 has not been shown to fall under any of these exceptions. In this regard, the Solicitor General s reliance on the case of Yaokasin v. Commissioner of Customs (180 SCRA 599 [1989]) is misplaced. In the said case, the validity of certain Customs Memorandum Orders were upheld despite their lack of publication as they were addressed to a particular class of persons, the

customs collectors, who were also the subordinates of the Commissioner of the Bureau of Customs. As such, the said Memorandum Orders clearly fall under one of the exceptions to the publication requirement, namely those dealing with instructions from an administrative superior to a subordinate regarding the performance of their duties, a circumstance which does not obtain in the case at bench. Xxx To summarize, petitioner should be absolved from the three (3) counts of exaction as POEA Administrative Circular No. 2, Series of 1983 could not be the basis of administrative sanctions against petitioner for lack of publication. (Philsa International Placement and Services Corporation v. Secretary of Labor and Employment, 356 SCRA 174, April 4, 2001, 3rd Div., [Gonzaga-Reyes]) 255. May a successful bidder compel a government agency to formalize a contract with it notwithstanding that its bid exceeds the amount appropriated by Congress for the project? Held: Enshrined in the 1987 Philippine Constitution is the mandate that no money shall be paid out of the Treasury except in pursuance of an appropriation made by law. (Sec. 29[1], Article VI of the 1987 Constitution) Thus, in the execution of government contracts, the precise import of this constitutional restriction is to require the various agencies to limit their expenditures within the appropriations made by law for each fiscal year. Xxx It is quite evident from the tenor of the language of the law that the existence of appropriations and the availability of funds are indispensable pre-requisites to or conditions sine qua non for the execution of government contracts. The obvious intent is to impose such conditions as a priori requisites to the validity of the proposed contract (Fernandez, A Treatise on Government Contracts Under Philippine Law, 2001, pp. 40-41). Using this as our premise, we cannot accede to PHOTOKINA s contention that there is already a perfected contract. While we held in Metropolitan Manila Development Authority v. Jancom Environmental Corporation (Supra) that the effect of an unqualified acceptance of the offer or proposal of the bidder is to perfect a contract, upon notice of the award to the bidder, however, such statement would be inconsequential in a government where the acceptance referred to is yet to meet certain conditions. To hold otherwise is to allow a public officer to execute a binding contract that would obligate the government in an amount in excess of the appropriations for the purpose for which the contract was attempted to be made (64 Am Jur 2d Sec. 11). This is a dangerous precedent. In the case at bar, there seems to be an oversight of the legal requirements as early as the bidding stage. The first step of a Bids and Awards Committee (BAC) is to determine whether the bids comply with the requirements. The BAC shall rate a bid passed only if it complies with all the requirements and the submitted price does not exceed the approved budget for the contract. (Implementing Rules and Regulations [IRR] for Executive Order No. 262, supra.) Extant on the record is the fact that the VRIS Project was awarded to PHOTOKINA on account of its bid in the amount of P6.588 Billion Pesos. However, under Republic Act No. 8760 (General Appropriations Act, FY 2000, p. 1018, supra.), the only fund appropriated for the project was P1 Billion Pesos and under the Certification of Available Funds (CAF) only P1.2 Billion Pesos was available. Clearly, the amount appropriated is insufficient to cover the cost of the entire VRIS Project. There is no way that the COMELEC could enter into a contract with PHOTOKINA whose accepted bid was way beyond the amount appropriated by law for the project. This being the case, the BAC should have rejected the bid for being excessive or should have withdrawn the Notice of Award on the ground that in the eyes of the law, the same is null and void. Xxx

Even the draft contract submitted by Commissioner Sadain, that provides for a contract price in the amount of P1.2 Billion Pesos is unacceptable. X x x While the contract price under the draft contract is only P1.2 Billion and, thus, within the certified available funds, the same covers only Phase I of the VRIS Project, i.e., the issuance of identification cards for only 1,000,000 voters in specified areas (Ibid., p. 382). In effect, the implementation of the VRIS Project will be segmented or chopped into several phases. Not only is such arrangement disallowed by our budgetary laws and practices, it is also disadvantageous to the COMELEC because of the uncertainty that will loom over its modernization project for an indefinite period of time. Should Congress fail to appropriate the amount necessary for the completion of the entire project, what good will the accomplished Phase I serve? As expected, the project failed to sell with the Department of Budget and Management. Thus, Secretary Benjamin Diokno, per his letter of December 1, 2000, declined the COMELEC s request for the issuance of the Notice of Cash Availability (NCA) and a multi-year obligatory authority to assume payment of the total VRIS Project for lack of legal basis. Corollarily, under Section 33 of R.A. No. 8760, no agency shall enter into a multi-year contract without a multi-year obligational authority, thus: SECTION 33. Contracting Multi-Year Projects. - In the implementation of multi-year projects, no agency shall enter into a multi-year contract without a multi-year Obligational Authority issued by the Department of Budget and Management for the purpose. Notwithstanding the issuance of the multi-year Obligational Authority, the obligation to be incurred in any given calendar year, shall in no case exceed the amount programmed for implementation during said calendar year. Petitioners are justified in refusing to formalize the contract with PHOTOKINA. Prudence dictated them not to enter into a contract not backed up by sufficient appropriation and available funds. Definitely, to act otherwise would be a futile exercise for the contract would inevitably suffer the vice of nullity. X x x Xxx Verily, the contract, as expressly declared by law, is inexistent and void ab initio (Article 1409 of the Civil Code of the Philippines). This is to say that the proposed contract is without force and effect from the very beginning or from its incipiency, as if it had never been entered into, and hence, cannot be validated either by lapse of time or ratification (Manila Lodge v. Court of Appeals, 73 SCRA 162 [1976]; See also Tongoy v. Court of Appeals, 123 SCRA 99 [1983]). Xxx In fine, we rule that PHOTOKINA, though the winning bidder, cannot compel the COMELEC to formalize the contract. Since PHOTOKINA s bid is beyond the amount appropriated by Congress for the VRIS Project, the proposed contract is not binding upon the COMELEC and is considered void x x x. (Commission on Elections v. Judge Ma. Luisa Quijano-Padilla, G.R. No. 151992, Sept. 18, 2002, En Banc [Sandoval-Gutierrez]) 256. What is the remedy available to a party who contracts with the government contrary to the requirements of the law and, therefore, void ab initio? Held: Of course, we are not saying that the party who contracts with the government has no other recourse in law. The law itself affords him the remedy. Section 48 of E.O. No. 292 explicitly provides that any contract entered into contrary to the above-mentioned requirements shall be void, and the officers entering into the contract shall be liable to the Government or other contracting party for any consequent damage to the same as if the transaction had been wholly between private parties. So when the contracting officer transcends his lawful and legitimate powers by acting in excess of or beyond the limits of his contracting authority, the Government is not bound under the contract. It would be as if the contract in such case were a private one, whereupon, he binds himself, and thus, assumes personal

liability thereunder. (Fernandez, a Treatise on Government Contracts Under Philippine Law, 2001, supra., pp. 22-23). Otherwise stated, the proposed contract is unenforceable as to the Government. While this is not the proceeding to determine where the culpability lies, however, the constitutional mandate cited above constrains us to remind all public officers that public office is a public trust and all public officers must at all times be accountable to the people. The authority of public officers to enter into government contracts is circumscribed with a heavy burden of responsibility. In the exercise of their contracting prerogative, they should be the first judges of the legality, propriety and wisdom of the contract they entered into. They must exercise a high degree of caution so that the Government may not be the victim of ill-advised or improvident action (Rivera v. Maclang, 7 SCRA 57 [1963]). (Commission on Elections v. Judge Ma. Luisa Quijano-Padilla, G.R. No. 151992, Sept. 18, 2002, En Banc [Sandoval-Gutierrez]) 257. Does the Commission on Human Rights have the power to adjudicate?

Held: In its Order x x x denying petitioners motion to dismiss, the CHR theorizes that the intention of the members of the Constitutional Commission is to make CHR a quasi-judicial body. This view, however, has not heretofore been shared by this Court. In Carino v. Commission on Human Rights (204 SCRA 483, 492), the Court x x x has observed that it is only the first of the enumerated powers and functions that bears any resemblance to adjudication of adjudgment, but that resemblance can in no way be synonymous to the adjudicatory power itself. The Court explained: x x x [T]he Commission on Human Rights x x x was not meant by the fundamental law to be another court or quasi-judicial agency in this country, or duplicate much less take over the functions of the latter. The most that may be conceded to the Commission in the way of adjudicative power is that it may investigate, i.e., receive evidence and make findings of fact as regards claimed human rights violations involving civil and political rights. But fact finding is not adjudication, and cannot be likened to the judicial function of a court of justice, or even a quasi-judicial agency or official. The function of receiving evidence and ascertaining therefrom the facts of a controversy is not a judicial function, properly speaking. To be considered such, the faculty of receiving evidence and making factual conclusions in a controversy must be accompanied by the authority of applying the law to those factual conclusions to the end that the controversy may be decided or determined authoritatively, finally and definitively, subject to such appeals or modes of review as may be provided by law. This function, to repeat, the Commission does not have. (Simon, Jr. v. Commission on Human Rights, 229 SCRA 117, 125, Jan. 5, 1994, En Banc [Vitug, J.]) 258. Does the Commission on Human Rights have jurisdiction to issue TRO or writ of preliminary injunction? Held: In Export Processing Zone Authority v. Commission on Human rights (208 SCRA 125, 131), the Court x x x explained: The constitutional provision directing the CHR to provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection may not be construed to confer jurisdiction on the Commission to issue a restraining order or writ of injunction for, if that were the intention, the Constitution would have expressly said so. Jurisdiction is conferred only by the Constitution or by law. It is never derived by implication. Evidently, the preventive measures and legal aid services mentioned in the Constitution refer to extrajudicial and judicial remedies (including a writ of preliminary injunction) which the CHR may seek from the proper courts on behalf of the victims of human rights violations. Not being a court of justice, the CHR itself has no jurisdiction to issue the writ, for a writ of preliminary injunction may only be issued

by the judge of any court in which the action is pending [within his district], or by a Justice of the Court of Appeals, or of the Supreme Court. x x x. A writ of preliminary injunction is an ancillary remedy. It is available only in a pending principal action, for the preservation or protection of the rights and interest of a party thereto, and for no other purpose. The Commission does have legal standing to indorse, for appropriate action, its findings and recommendations to any appropriate agency of government (See Export Processing Zone Authority v. Commission on Human Rights, 208 SCRA 125). (Simon, Jr. v. Commission on Human Rights, 229 SCRA 117, 134-135, Jan. 5, 1994, En Banc [Vitug, J.]) 259. Discuss the contempt power of the Commission on Human Rights (CHR). When may it be validly exercised? Held: On its contempt powers, the CHR is constitutionally authorized to adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court. Accordingly, the CHR acted within its authority in providing in its revised rules, its power to cite or hold any person in direct or indirect contempt, and to impose the appropriate penalties in accordance with the procedure and sanctions provided for in the Rules of Court. That power to cite for contempt, however, should be understood to apply only to violations of its adopted operational guidelines and rules of procedure essential to carry out its investigatorial powers. To exemplify, the power to cite for contempt could be exercised against persons who refuse to cooperate with the said body, or who unduly withhold relevant information, or who decline to honor summons, and the like, in pursuing its investigative work. The order to desist (a semantic interplay for a restraining order) in the instance before us, however, is not investigatorial in character but prescinds from an adjudicative power that it does not possess. x x x (Simon, Jr. v. Commission on Human Rights, 229 SCRA 117, 134, Jan. 5, 1994, En Banc [Vitug, J.])

THE LAW OF PUBLIC OFFICERS 260. How are positions in the Civil Service classified? Discuss the characteristics of each.

Ans.: Positions in the Civil Service may be classified into: 1) Career Positions, and 2) Non-Career Positions. Career Positions are characterized by (1) entrance based on merit and fitness to be determined as far as practicable by competitive examination, or based on highly technical qualifications; (2) opportunity for advancement to higher career positions; and (3) security of tenure (Sec. 7, Chap. 2, Subtitle A, Title I, Bk. V, E.O. No. 292). The Non-Career Service shall be characterized by (1) entrance on bases other than of the usual tests of merit or fitness utilized for the career service; and (2) tenure which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made (Sec. 9, Chap. 2, Subtitle A, Title I, Bk. V, E.O. No. 292).

261.

Define Appointment. Discuss its nature.

Held: An appointment to a public office is the unequivocal act of designating or selecting by one having the authority therefor of an individual to discharge and perform the duties and functions of an

office or trust. The appointment is deemed complete once the last act required of the appointing authority has been complied with and its acceptance thereafter by the appointee in order to render it effective. Appointment necessarily calls for an exercise of discretion on the part of the appointing authority. In Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court (140 SCRA 22), reiterated in Flores v. Drilon (223 SCRA 568), this Court has held: The power to appoint is, in essence, discretionary. The appointing power has the right of choice which he may exercise freely according to his judgment, deciding for himself who is best qualified among those who have the necessary qualifications and eligibilities. It is a prerogative of the appointing power x x x. (At p. 579) Indeed, it may rightly be said that the right of choice is the heart of the power to appoint. In the exercise of the power of appointment, discretion is an integral thereof. (Bermudez v. Torres, 311 SCRA 733, Aug. 4, 1999, 3rd Div. [Vitug]) 262. May the Civil Service Commission, or the Supreme Court, validly nullify an appointment on the ground that somebody else is better qualified? Held: The head of an agency who is the appointing power is the one most knowledgeable to decide who can best perform the functions of the office. Appointment is an essentially discretionary power and must be performed by the officer vested with such power according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. Indeed, this is a prerogative of the appointing authority which he alone can decide. The choice of an appointee from among those who possess the required qualifications is a political and administrative decision calling for considerations of wisdom, convenience, utility and the interests of the service which can best be made by the head of the office concerned, the person most familiar with the organizational structure and environmental circumstances within which the appointee must function. As long as the appointee is qualified the Civil Service Commission has no choice but to attest to and respect the appointment even if it be proved that there are others with superior credentials. The law limits the Commission s authority only to whether or not the appointees possess the legal qualifications and the appropriate civil service eligibility, nothing else. If they do then the appointments are approved because the Commission cannot exceed its power by substituting its will for that of the appointing authority. Neither can we. (Rimonte v. CSC, 244 SCRA 504-505, May 29, 1995, En Banc [Bellosillo, J.]) 263. Does the next-in-rank rule import any mandatory or peremptory requirement that the person next-in-rank must be appointed to the vacancy? Held: The next-in-rank rule is not absolute; it only applies in cases of promotion, a process which denotes a scalar ascent of an officer to another position higher either in rank or salary. And even in promotions, it can be disregarded for sound reasons made known to the next-in-rank, as the concept does not import any mandatory or peremptory requirement that the person next-in-rank must be appointed to the vacancy. The appointing authority, under the Civil Service Law, is allowed to fill vacancies by promotion, transfer of present employees, reinstatement, reemployment, and appointment of outsiders who have appropriate civil service eligibility, not necessarily in that order. There is no legal fiat that a vacancy must be filled only by promotion; the appointing authority is given wide discretion to fill a vacancy from among the several alternatives provided by law. What the Civil Service Law provides is that if a vacancy is filled by promotion, the person holding the position next in rank thereto shall be considered for promotion.

In Taduran v. Civil Service Commission (131 SCRA 66 [1984]), the Court construed that phrase to mean that the person next-in-rank would be among the first to be considered for the vacancy, if qualified. In Santiago, Jr. v. Civil Service Commission (178 SCRA 733 [1989]), the Court elaborated the import of the rule in the following manner: One who is next-in-rank is entitled to preferential consideration for promotion to the higher vacancy but it does not necessarily follow that he and no one else can be appointed. The rule neither grants a vested right to the holder nor imposes a ministerial duty on the appointing authority to promote such person to the next higher position x x x (Abila v. CSC, 198 SCRA 102, June 3, 1991, En Banc [Feliciano]) 263. Can a person who lacks the necessary qualifications for a public position be appointed to it in a permanent capacity? Illustrative case. Held: At the outset, it must be stressed that the position of Ministry Legal Counsel-CESO IV is embraced in the Career Executive Service. X x x In the case at bar, there is no question that private respondent does not have the required CES eligibility. As admitted by private respondent in his Comment, he is not a CESO or a member of the Career Executive Service. In the case of Achacoso v. Macaraig, et al. (195 SCRA 235, 239-240 [1991]), the Court held: It is settled that a permanent appointment can be issued only to a person who meets all the requirements for the position to which he s being appointed, including the appropriate eligibility prescribed. Achacoso did not. At best, therefore, his appointment could be regarded only as temporary. And being so, it could be withdrawn at will by the appointing authority and at a moment s notice, conformably to established jurisprudence. The Court, having considered these submissions and the additional arguments of the parties in the petitioner s Reply and of the Solicitor-General s Rejoinder, must find for the respondents. The mere fact that a position belongs to the Career Service does not automatically confer security of tenure in its occupant even if he does not possess the required qualifications. Such right will have to depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A person who does not have the requisite qualifications for the position cannot be appointed to it in the first place or, only as an exception to the rule, may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. The appointment extended to him cannot be regarded as permanent even if it may be so designated. Evidently, private respondent s appointment did not attain permanency. Not having taken the necessary Career Executive Service examination to obtain the requisite eligibility, he did not at the time of his appointment and up to the present, possess the needed eligibility for a position in the Career Executive Service. Consequently, his appointment as Ministry Legal Counsel-CESO IV/Department Legal Counsel and/or Director III, was merely temporary. Such being the case, he could be transferred or reassigned without violating the constitutionally guaranteed right to security of tenure. Private respondent capitalizes on his lack of CES eligibility by adamantly contending that the mobility and flexibility concepts in the assignment of personnels under the Career Executive Service do not apply to him because he s not a Career Executive Service Officer. Obviously, the contention is without merit. As correctly pointed out by the Solicitor General, non-eligibles holding permanent appointments to CES positions were never meant to remain immobile in their status. Otherwise, their

lack of eligibility would be a premium vesting them with permanency in the CES positions, a privilege even their eligible counterparts do not enjoy. Then too, the cases on unconsented transfer invoked by private respondent find no application in the present case. To reiterate, private respondent s appointment is merely temporary; hence, he could be transferred or reassigned to other positions without violating his right to security of tenure. (De Leon v. Court of Appeals, 350 SCRA 1, Jan. 22, 2001, En Banc [Ynares-Santiago]) 264. In the career executive service, is a career executive service (CES) eligibility all that an employee needs to acquire security of tenure? Is appointment to a CES rank necessary for the acquisition of such security of tenure? Held: The petitions are impressed with merit. In the career executive service, the acquisition of security of tenure which presupposes a permanent appointment is governed by the rules and regulations promulgated by the CES Board x x x. As clearly set forth in the foregoing provisions, two requisites must concur in order that an employee in the career executive service may attain security of tenure, to wit: a) b) CES eligibility; and Appointment to the appropriate CES rank.

In addition, it must be stressed that the security of tenure of employees in the career executive service (except first and second level employees in the civil service), pertains only to rank and not to the office or to the position to which they may be appointed. Thus, a career executive service officer may be transferred or reassigned from one position to another without losing his rank which follows him wherever he is transferred or reassigned. In fact, a CESO suffers no diminution of salary even if assigned to a CES position with lower salary grade, as he is compensated according to his CES rank and not on the basis of the position or office he occupies. In the case at bar, there is no question that respondent Ramon S. Roco, though a CES eligible, does not possess the appropriate CES rank, which is CES rank level V, for the position of Regional Director of the LTO (Region V). Falling short of one of the qualifications that would complete his membership in the CES, respondent cannot successfully interpose violation of security of tenure. Accordingly, he could be validly reassigned to other positions in the career executive service. X x x Moreover, under the mobility and flexibility principles of the Integrated Reorganization Plan, CES personnel may be reassigned or transferred from one position to another x x x. One last point. Respondent capitalizes on the fact that petitioner Luis Mario M. General is not a CES eligible. The absence, however, of such CES eligibility is of no moment. As stated in Part III, Chapter I, Article IV, paragraph 5(c), of the Integrated Reorganization Plan x x x the President may, in exceptional cases, appoint any person who is not a Career Executive Service eligible; provided that such appointee shall subsequently take the required Career Executive Service examination and that he shall not be promoted to a higher class until he qualified in such examination. Evidently, the law allows appointment of those who are not CES eligible, subject to the obtention of said eligibility, in the same manner that the appointment of respondent who does not possess the required CES rank (CES rank level V) for the position of Regional Director of the LTO, is permitted in a temporary capacity. (General v. Roco, 350 SCRA 528, Jan. 29, 2001, 1st Div. [Ynares-Santiago])

265. May an elective public official be validly appointed or designated to any public office or position during his tenure? Ans.: No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. (Sec. 7, 1st par., Art. IX-B, 1987 Constitution) 266. May an appointive public official hold any other office or employment?

Ans.: Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporation. (Sec. 7, 2nd par., Art. IX-B, 1987 Constitution) 267. May the President, Vice-President, Members of the Cabinet, their deputies or assistants hold any other office or employment? Ans.: The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. (Sec. 13, Art. VII, 1987 Constitution) 268. Does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet members, their deputies or assistants are concerned admit of the broad exceptions made for appointive officials in general under Section 7, par. (2), Article IX-B? Held: The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet members, their deputies or assistants are concerned admit of the broad exceptions made for appointive officials in general under Section 7, par. (2), Article IX-B which, for easy reference is quoted anew, thus: Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporation or their subsidiaries. We rule in the negative. Xxx The practice of designating members of the Cabinet, their deputies and assistants as members of the governing bodies or boards of various government agencies and instrumentalities, including government-owned and controlled corporations, became prevalent during the time legislative powers in this country were exercised by former President Ferdinand E. Marcos pursuant to his martial law authority. There was a proliferation of newly-created agencies, instrumentalities and government-owned and controlled corporations created by presidential decrees and other modes of presidential issuances where Cabinet members, their deputies or assistants were designated to head or sit as members of the board with the corresponding salaries, emoluments, per diems, allowances and other perquisites of office. X x x This practice of holding multiple offices or positions in the government soon led to abuses by unscrupulous public officials who took advantage of this scheme for purposes of self-enrichment. X x x Particularly odious and revolting to the people s sense of propriety and morality in government service were the data contained therein that Roberto v. Ongpin was a member of the governing boards of twenty-nine (29) governmental agencies, instrumentalities and corporations; Imelda R. Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S.

Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Rono of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11) each; and Lilia Bautista and Teodoro Q. Pena of ten (10) each. The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos regime. It was therefore quite inevitable and in consonance with the overwhelming sentiment of the people that the 1986 Constitutional Commission, convened as it was after the people successfully unseated former President Marcos, should draft into its proposed Constitution the provisions under consideration which are envisioned to remedy, if not correct, the evils that flow from the holding of multiple governmental offices and employment. X x x But what is indeed significant is the fact that although Section 7, Article IX-B already contains a blanket prohibition against the holding of multiple offices or employment in the government subsuming both elective and appointive public officials, the Constitutional Commission should see it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-President, members of the Cabinet, their deputies and assistants from holding any other office or employment during their tenure, unless otherwise provided in the Constitution itself. Evidently, from this move as well as in the different phraseologies of the constitutional provisions in question, the intent of the framers of the Constitution was to impose a stricter prohibition on the President and his official family in so far as holding other offices or employment in the government or elsewhere is concerned. Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions of the Constitution on the disqualifications of certain public officials or employees from holding other offices or employment. Under Section 13, Article VI, [N]o Senator or Member of the House of Representatives may hold any other office or employment in the Government x x x. Under section 5(4), Article XVI, [N]o member of the armed forces in the active service shall, at any time, be appointed in any capacity to a civilian position in the Government, including government-owned or controlled corporations or any of their subsidiaries. Even Section 7(2), Article IX-B, relied upon by respondents provides [U]nless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government. It is quite notable that in all these provisions on disqualifications to hold other office or employment, the prohibition pertains to an office or employment in the government and governmentowned or controlled corporations or their subsidiaries. In striking contrast is the wording of Section 13, Article VII which states that [T]he President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. In the latter provision, the disqualification is absolute, not being qualified by the phrase in the Government. The prohibition imposed on the President and his official family is therefore all-embracing and covers both public and private office or employment. Going further into Section 13, Article VII, the second sentence provides: They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. These sweeping, all-embracing prohibitions imposed on the President and his official family, which prohibitions are not similarly imposed on other public officials or employees such as the Members of Congress, members of the civil service in general and members of the armed forces, are proof of the intent of the 1987 Constitution to treat the President and his official family as a class by itself and to impose upon said class stricter prohibitions. Xxx

Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the government during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. In other words, Section 7, Article IX-B is meant to lay down the general rule applicable to all elective and appointive public officials and employees, while Section 13, Article VII is meant to be the exception applicable only to the President, the Vice-President, Members of the Cabinet, their deputies and assistants. This being the case, the qualifying phrase unless otherwise provided in this Constitution in Section 13, Article VII cannot possibly refer to the broad exceptions provided under Section 7, Article IXB of the 1987 Constitution. To construe said qualifying phrase as respondents would have us to do, would render nugatory and meaningless the manifest intent and purpose of the framers of the Constitution to impose a stricter prohibition on the President, Vice-President, Members of the Cabinet, their deputies and assistants with respect to holding other offices or employment in the government during their tenure. Respondents interpretation that Section 13 of Article VII admits of the exceptions found in Section 7, par. (2) of Article IX-B would obliterate the distinction so carefully set by the framers of the Constitution as to when the high-ranking officials of the Executive Branch from the President to assistant Secretary, on the one hand, and the generality of civil servants from the rank immediately below Assistant Secretary downwards, on the other, may hold any other office or position in the government during their tenure. Moreover, respondents reading of the provisions in question would render certain parts of the Constitution inoperative. This observation applies particularly to the Vice-President who, under Section 13 of Article VII is allowed to hold other office or employment when so authorized by the Constitution, but who as an elective public official under Sec. 7, par. (1) of Article IX-B is absolutely ineligible for appointment or designation in any capacity to any public office or position during his tenure. Surely, to say that the phrase unless otherwise provided in this Constitution found in Section 13, Article VII has reference to Section 7, par. (1) of Article IX-B would render meaningless the specific provisions of the Constitution authorizing the Vice-President to become a member of the Cabinet (Sec. 3, Ibid.), and to act as President without relinquishing the Vice-Presidency where the President shall not have been chosen or fails to qualify (Sec. 7, Article VII). Such absurd consequence can be avoided only by interpreting the two provisions under consideration as one, i.e., Section 7, par. (1) of Article IX-B providing the general rule and the other, i.e., Section 13, Article VII as constituting the exception thereto. In the same manner must Section 7, par. (2) of Article IX-B be construed vis--vis Section 13, Article VII. Xxx Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President, Vice-President, members of the Cabinet, their deputies and assistants with respect to holding multiple offices or employment in the government during their tenure, the exception to this prohibition must be read with equal severity. On its face, the language of Section 13, Article VII is prohibitory so that it must be understood as intended to be a positive and unequivocal negation of the privilege of holding multiple government offices and employment. Verily, wherever the language used in the constitution is prohibitory, it is to be understood as intended to be a positive and unequivocal negation (Varney v. Justice, 86 Ky 596; 6 S.W. 457; Hunt v. State, 22 Tex. App. 396, 3 S.W. 233). The phrase unless otherwise provided in this Constitution must be given a literal interpretation to refer only to those particular instances cited in the Constitution itself, to wit: the Vice-President being appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting as President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII. Xxx

It being clear x x x that the 1987 Constitution seeks to prohibit the President, Vice-President, members of the Cabinet, their deputies or assistants from holding during their tenure multiple offices or employment in the government, except in those cases specified in the Constitution itself and as above clarified with respect to posts held without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of their office, the citation of Cabinet members (then called Ministers) as examples during the debate and deliberation on the general rule laid down for all appointive officials should be considered as mere personal opinions which cannot override the constitution s manifest intent and the people s understanding thereof. In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2), Article IX-B of the 1987 Constitution, Executive Order No. 284 dated July 23, 1987 is unconstitutional. Ostensibly restricting the number of positions that Cabinet members, undersecretaries or assistant secretaries may hold in addition to their primary position to not more than two (2) positions in the government and government corporations, Executive Order No. 284 actually allows them to hold multiple offices or employment in direct contravention of the express mandate of Section 13, Article VII of the 1987 Constitution prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself. The Court is alerted by respondents to the impractical consequences that will result from a strict application of the prohibition mandated under Section 13, Article VII on the operations of the Government, considering that Cabinet members would be stripped of their offices held in an ex-officio capacity, by reason of their primary positions or by virtue of legislation. As earlier clarified in this decision, ex-officio posts held by the executive official concerned without additional compensation as provided by law and as required by the primary functions of his office do not fall under the definition of any other office within the contemplation of the constitutional prohibition. With respect to other offices or employment held by virtue of legislation, including chairmanships or directorships in governmentowned or controlled corporations and their subsidiaries, suffice it to say that the feared impractical consequences are more apparent than real. Being head of an executive department is no mean job. It is more than a full-time job, requiring full attention, specialized knowledge, skills and expertise. If maximum benefits are to be derived from a department head s ability and expertise, he should be allowed to attend to his duties and responsibilities without the distraction of other governmental offices or employment. He should be precluded from dissipating his efforts, attention and energy among too many positions and responsibility, which may result in haphazardness and inefficiency. Surely the advantages to be derived from this concentration of attention, knowledge and expertise, particularly at this stage of our national and economic development, far outweigh the benefits, if any, that may be gained from a department head spreading himself too thin and taking in more than what he can handle. Finding Executive Order No. 284 to be constitutionally infirm, the Court hereby orders respondents x x x to immediately relinquish their other offices or employment, as herein defined, in the government, including government-owned or controlled corporations and their subsidiaries. (Civil Liberties Union v. Executive Secretary, 194 SCRA 317, Feb. 22, 1991, En Banc [Fernan, CJ])

269. Does the prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution apply to posts occupied by the Executive officials specified therein without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of said officials office? Held: The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution must not, however, be construed as applying to posts occupied by the Executive officials specified therein without additional compensation in an ex-officio capacity as provided by law and as required (As opposed to the term allowed used in Section 7, par. (2), Article IX-B of the

Constitution, which is permissive. Required suggests an imposition, and therefore, obligatory in nature) by the primary functions of said officials office. The reason is that these posts do not comprise any other office within the contemplation of the constitutional prohibition but are properly an imposition of additional duties and functions on said officials (Martin v. Smith, 140 A.L.R. 1073; Ashmore v. Greater Greenville Sewer District, 173 A.L.R. 407). To characterize these posts otherwise would lead to absurd consequences, among which are: The President of the Philippines cannot chair the National Security Council reorganized under Executive Order No. 115 (December 24, 1986). Neither can the VicePresident, the Executive Secretary, and the Secretaries of National Defense, Justice, Labor and Employment and Local Government sit in this Council, which would then have no reason to exist for lack of a chairperson and members. The respective undersecretaries and assistant secretaries, would also be prohibited. Xxx Indeed, the framers of our Constitution could not have intended such absurd consequences. A Constitution, viewed as a continuously operative charter of government, is not to be interpreted as demanding the impossible or the impracticable; and unreasonable or absurd consequences, if possible, should be avoided (Hirabayashi v. United States, 320 U.S. 81, 87 L. Ed. 1774, 63 S. Ct. 1375; others omitted). To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions held without additional compensation in ex-officio capacities as provided by law and as required by the primary functions of the concerned official s office. The term ex-officio means from office; by virtue of office. It refers to an authority derived from official character merely, not expressly conferred upon the individual character, but rather annexed to the official position. Ex officio likewise denotes an act done in an official character, or as a consequence of office, and without any other appointment or authority than that conferred by the office. (Black s Law Dictionary, p. 516; 15A Words and Phrases, p. 392) An ex-officio member of a board is one who is a member by virtue of his title to a certain office, and without further warrant or appointment (15A Words and Phrases, p. 392). To illustrate, by express provision of law, the Secretary of Transportation and Communications is the ex-officio Chairman of the Board of the Philippine Ports Authority (Sec. 7, E.O. 778), and the Light Rail Transit Authority (Sec. 1, E.O. 210). The Court had occasion to explain the meaning of an ex-officio position in Rafael v. Embroidery and Apparel Control and Inspection Board (21 SCRA 336 [1967]), thus: An examination of Section 2 of the questioned statute (R.A. 3137) reveals that for the chairman and members of the Board to qualify they need only be designated by the respective department heads. With the exception of the representative from the private sector, they sit ex-officio. I order to be designated they must already be holding positions in the offices mentioned in the law. Thus, for instance, one who does not hold a previous appointment in the Bureau of Customs, cannot, under the act, be designated a representative from that office. The same is true with respect to the representatives from the other offices. No new appointments are necessary. This is as it should be, because the representatives so designated merely perform duties in the Board in addition to those already performed under their original appointments. (Italics supplied) The term primary used to describe functions refers to the order of importance and thus means chief or principal function. The term is not restricted to the singular but may refer to the plural (33A Words and Phrases, p. 210, citing Collector of Revenue v. Louisiana Ready Mix Co., La. App., 197 S. 2d 141, 145). The additional duties must not only be closely related to, but must be required by the official s primary functions. Examples of designations to positions by virtue of one s primary functions are the Secretaries of Finance and Budget sitting as members of the Monetary Board, and the Secretary of Transportation and Communications acting as Chairman of the Maritime Industry Authority (Sec. 7, P.D. No. 474) and the Civil Aeronautics Board.

If the functions to be performed are merely incidental, remotely related, inconsistent, incompatible, or otherwise alien to the primary function of a cabinet official, such additional functions would fall under the purview of any other office prohibited by the Constitution. An example would be the Press Undersecretary sitting as a member of the Board of the Philippine Amusement and Gaming Corporation. The same rule applies to such positions which confer on the cabinet official management functions and/or monetary compensation, such as but not limited to chairmanships or directorships in government-owned or controlled corporations and their subsidiaries. Mandating additional duties and functions to the President, Vice-President, Cabinet Members, their deputies or assistants which are not inconsistent with those already prescribed by their offices or appointments by virtue of their special knowledge, expertise and skill in their respective executive offices is a practice long-recognized in many jurisdictions. It is a practice justified by the demands of efficiency, policy direction, continuity and coordination among the different offices in the Executive Branch in the discharge of its multifarious tasks of executing and implementing laws affecting national interest and general welfare and delivering basic services to the people. It is consistent with the power vested on the President and his alter egos, the Cabinet members, to have control of all the executive departments, bureaus and offices and to ensure that the laws are faithfully executed (Section 17, Article VII). Without these additional duties and functions being assigned to the President and his official family to sit in the governing bodies or boards of governmental agencies or instrumentalities in an ex-officio capacity as provided by law and as required by their primary functions, they would be deprived of the means for control and supervision, thereby resulting in an unwieldy and confused bureaucracy. It bears repeating though that in order transgress the prohibition embodied in Section 13, duties or functions must be required by the primary the same in an ex-officio capacity as provided by therefor. that such additional duties or functions may not Article VII of the 1987 Constitution, such additional functions of the official concerned, who is to perform law, without receiving any additional compensation

The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the official concerned has no right to receive additional compensation for his services in the said position. The reason is that these services are already paid for and covered by the compensation attached to his principal office. It should be obvious that if, say, the Secretary of Finance attends a meeting of the Monetary Board as an ex-officio member thereof, he is actually and in legal contemplation performing the primary function of his principal office in defining policy in monetary and banking matters, which come under the jurisdiction of his department. For such attendance, therefore, he is not entitled to collect any extra compensation, whether it be in the form of a per diem or an honorarium or an allowance, or some other such euphemism. By whatever name it is designated, such additional compensation is prohibited by the Constitution. (Civil Liberties Union v. Executive Secretary, 194 SCRA 317, Feb. 22, 1991, En Banc [Fernan, CJ]) 270. Should members of the Cabinet appointed to other positions in the government pursuant to Executive Order No. 284 which later was declared unconstitutional by the SC for being violative of Section 13, Article VII of the Constitution be made to reimburse the government for whatever pay and emoluments they received from holding such other positions? Held: During their tenure in the questioned positions, respondents may be considered de facto officers and as such entitled to emoluments for actual services rendered (Castillo v. Arrieta, G.R. No. L31444, November 13, 1974, 61 SCRA 55). It has been held that in cases where there is no de jure officer, a de facto officer, who, in good faith has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in an appropriate action recover the salary, fees and other compensations attached to the office. This doctrine is, undoubtedly, supported on equitable grounds since it seems unjust that the public should benefit by the

services of an officer de facto and then be freed from all liability to pay any one for such services (Patterson v. Benson, 112 Pac. 801, 32 L.R.A. [NS] 949). Any per diem, allowances or other emoluments received by the respondents by virtue of actual services rendered in the questioned positions may therefore be retained by them. (Civil Liberties Union v. Executive Secretary, 194 SCRA 317, Feb. 22, 1991, En Banc [Fernan, CJ]) 271. May a Senator or Congressman hold any other office or employment?

Ans.: No Senator or Member of the House of Representatives may hold any other office or employment in the government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected (Sec. 13, Art. VI, 1987 Constitution). The first sentence is referred to as an incompatible office; the second is a forbidden office.

272. Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and reassign her to the Law Department. Petitioner further argues that only the COMELEC, acting as a collegial body, can authorize such reappointment. Moreover, petitioner maintains that a reassignment without her consent amounts to removal from office without due process and therefore illegal. Held: Petitioner s posturing will hold water if Benipayo does not possess any color of title to the office of Chairman of the COMELEC. We have ruled, however, that Benipayo is the de jure COMELEC Chairman, and consequently he has full authority to exercise all the powers of that office for so long as his ad interim appointment remains effective. X x x. The Chairman, as the Chief Executive of the COMELEC, is expressly empowered on his own authority to transfer or reassign COMELEC personnel in accordance with the Civil Service Law. In the exercise of this power, the Chairman is not required by law to secure the approval of the COMELEC en banc. Petitioner s appointment papers x x x indisputably show that she held her Director IV position in the EID only in an acting or temporary capacity. Petitioner is not a Career Executive Service (CES), and neither does she hold Career Executive Service Eligibility, which are necessary qualifications for holding the position of Director IV as prescribed in the Qualifications Standards (Revised 1987) issued by the Civil Service Commission. Obviously, petitioner does not enjoy security of tenure as Director IV. X x x Xxx Having been appointed merely in a temporary or acting capacity, and not possessed of the necessary qualifications to hold the position of Director IV, petitioner has no legal basis in claiming that her reassignment was contrary to the Civil Service Law. X x x Still, petitioner assails her reassignment, carried out during the election period, as a prohibited act under Section 261 (h) of the Omnibus Election Code x x x. Xxx Petitioner claims that Benipayo failed to secure the approval of the COMELEC en banc to effect transfers or reassignments of COMELEC personnel during the election period. Moreover, petitioner insists that the COMELEC en banc must concur to every transfer or reassignment of COMELEC personnel during the election period.

Contrary to petitioner s allegation, the COMELEC did in fact issue COMELEC Resolution No. 3300 dated November 6, 2000, exempting the COMELEC from Section 261 (h) of the Omnibus Election Code. X x x Xxx The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing before any transfer or reassignment can be made within thirty days prior to election day, refers only to COMELEC field personnel and not to head office personnel like the petitioner. Under the Revised Administrative Code (see Section 7 [4], Chapter 2, Subtitle C, Book V of the Revised Administrative Code), the COMELEC Chairman is the sole officer specifically vested with the power to transfer or reassign COMELEC personnel. The COMELEC Chairman will logically exercise the authority to transfer or reassign COMELEC personnel pursuant to COMELEC Resolution No. 3300. The COMELEC en banc cannot arrogate unto itself this power because that will mean amending the Revised Administrative Code, an act the COMELEC en banc cannot legally do. COMELEC Resolution No. 3300 does not require that every transfer or reassignment of COMELEC personnel should carry the concurrence of the COMELEC as a collegial body. Interpreting Resolution No. 3300 to require such concurrence will render the resolution meaningless since the COMELEC en banc will have to approve every personnel transfer or reassignment, making the resolution utterly useless. Resolution No. 3300 should be interpreted for what it is, an approval to effect transfers and reassignments of personnel, without need of securing a second approval from the COMELEC en banc to actually implement such transfer or reassignment. The COMELEC Chairman is the official expressly authorized by law to transfer or reassign COMELEC personnel. The person holding that office, in a de jure capacity, is Benipayo. The COMELEC en banc, in COMELEC Resolution No. 3300, approved the transfer or reassignment of COMELEC personnel during the election period. Thus, Benipayo s order reassigning petitioner from the EID to the Law Department does not violate Section 261 (h) of the Omnibus Election Code. For the same reason, Benipayo s order designating Cinco Officer-in-Charge of the EID is legally unassailable. (Matibag v. Benipayo, 380 SCRA 49, April 2, 2002, En Banc [Carpio]) 273. May the appointment of a person assuming a position in the civil service under a completed appointment be validly recalled or revoked? Held: It has been held that upon the issuance of an appointment and the appointee s assumption of the position in the civil service, he acquires a legal right which cannot be taken away either by revocation of the appointment or by removal except for cause and with previous notice and hearing. (Mauna v. Civil Service Commission, 232 SCRA 388, 398 [1994]) Moreover, it is well-settled that the person assuming a position in the civil service under a completed appointment acquires a legal, not just an equitable, right to the position. This right is protected not only by statute, but by the Constitution as well, which right cannot be taken away by either revocation of the appointment, or by removal, unless there is valid cause to do so, provided that there is previous notice and hearing. (Aquino v. Civil Service Commission, 208 SCRA 240, 248 [1992]) Petitioner admits that his very first official act upon assuming the position of town mayor was to issue Office Order No. 95-01 which recalled the appointments of the private respondents. There was no previous notice, much less a hearing accorded to the latter. Clearly, it was petitioner who acted in undue haste to remove the private respondents without regard for the simple requirements of due process of law. While he argues that the appointing power has the sole authority to revoke said appointments, there is no debate that he does not have blanket authority to do so. Neither can he question the CSC s jurisdiction to affirm or revoke the recall.

Rule V, Section 9 of the Omnibus Implementing Regulations of the Revised Administrative Code specifically provides that an appointment accepted by the appointee cannot be withdrawn or revoked by the appointing authority and shall remain in force and in effect until disapproved by the Commission. Thus, it is the CSC that is authorized to recall an appointment initially approved, but only when such appointment and approval are proven to be in disregard of applicable provisions of the civil service law and regulations (Debulgado v. Civil Service Commission, 237 SCRA 184, 200 [1994]). Moreover, Section 10 of the same rule provides: Sec. 10. An appointment issued in accordance with pertinent laws and rules shall take effect immediately upon its issuance by the appointing authority, and if the appointee has assumed the duties of the position, he shall be entitled to receive his salary at once without awaiting the approval of his appointment by the Commission. The appointment shall remain effective until disapproved by the Commission. In no case shall an appointment take effect earlier than the date of its issuance. Section 20 of Rule VI also provides: Sec. 20. Notwithstanding the initial approval of an appointment, the same may be recalled on any of the following grounds: (a) Non-compliance with the procedures/criteria provided in the agency s Merit Promotion Plan; (b) Failure to pass through the agency s Selection/Promotion Board; (c) Violation of the existing collective agreement between management and employees relative to promotion; or (d) Violation of other existing civil service law, rules and regulations. Accordingly, the appointments of the private respondents may only be recalled on the above-cited grounds. And yet, the only reason advanced by the petitioner to justify the recall was that these were midnight appointments. The CSC correctly ruled, however, that the constitutional prohibition on socalled midnight appointments, specifically those made within two (2) months immediately prior to the next presidential elections, applies only to the President or Acting President. (De Rama v. Court of Appeals, 353 SCRA 94, Feb. 28, 2001, En Banc [Ynares-Santiago])

274. The Philippine National Red Cross (PNRC) is a government-owned and controlled corporation with an original charter under R.A. No. 95, as amended. Its charter, however, was amended to vest in it the authority to secure loans, be exempted from payment of all duties, taxes, fees and other charges, etc. With the amendment of its charter, has it been impliedly converted to a private corporation ? Held: The test to determine whether a corporation is government owned or controlled, or private in nature is simple. Is it created by its own charter for the exercise of a public function, or by incorporation under the general corporation law? Those with special charters are government corporations subject to its provisions, and its employees are under the jurisdiction of the Civil Service Commission. The PNRC was not impliedly converted to a private corporation simply because its charter was amended to vest in it the authority to secure loans, be exempted from payment of all duties, taxes, fees and other charges, etc. (Camporedondo v. NLRC, G.R. No. 129049, Aug. 6, 1999, 1st Div. [Pardo]) 275. What is a primarily confidential position? What is the test to determine whether a position is primarily confidential or not? Held: A primarily confidential position is one which denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom from intercourse

without embarrassment or freedom from misgivings or betrayals of personal trust or confidential matters of state. (De los Santos v. Mallare, 87 Phil. 289 [1950]) Under the proximity rule, the occupant of a particular position could be considered a confidential employee if the predominant reason why he was chosen by the appointing authority was the latter s belief that he can share a close intimate relationship with the occupant which ensures freedom of discussion without fear or embarrassment or misgivings of possible betrayal of personal trust or confidential matters of state. Withal, where the position occupied is more remote from that of the appointing authority, the element of trust between them is no longer predominant. (CSC v. Salas, 274 SCRA 414, June 19, 1997) 276. Does the Civil Service Law contemplate a review of decisions exonerating officers or employees from administrative charges? Held: By this ruling, we now expressly abandon and overrule extant jurisprudence that the phrase party adversely affected by the decision refers to the government employee against whom the administrative case is filed for the purpose of disciplinary action which may take the form of suspension, demotion in rank or salary, transfer, removal or dismissal from office and not included are cases where the penalty imposed is suspension for not more than thirty (30) days or fine in an amount not exceeding thirty days salary (Paredes v. Civil Service Commission, 192 SCRA 84, 85) or when respondent is exonerated of the charges, there is no occasion for appeal. (Mendez v. Civil Service Commission, 204 SCRA 965, 968) In other words, we overrule prior decisions holding that the Civil Service Law does not contemplate a review of decisions exonerating officers or employees from administrative charges enunciated in Paredes v. Civil Service Commission (192 SCRA 84); Mendez v. Civil Service Commission (204 SCRA 965); Magpale v. Civil Service Commission (215 SCRA 398); Navarro v. Civil Service Commission and Export Processing Zone Authority (226 SCRA 207) and more recently Del Castillo v. Civil Service Commission (237 SCRA 184). (CSC v. Pedro O. Dacoycoy, G.R. No. 135805, April 29, 1999, En Banc [Pardo]) 277. What is preventive suspension? Discuss its nature.

Held: Imposed during the pendency of an administrative investigation, preventive suspension is not a penalty in itself. It is merely a measure of precaution so that the employee who is charged may be separated, for obvious reasons, from the scene of his alleged misfeasance while the same is being investigated. Thus preventive suspension is distinct from the administrative penalty of removal from office such as the one mentioned in Sec. 8(d) of P.D. No. 807. While the former may be imposed on a respondent during the investigation of the charges against him, the latter is the penalty which may only be meted upon him at the termination of the investigation or the final disposition of the case. (Beja, Sr. v. CA, 207 SCRA 689, March 31, 1992 [Romero]) 278. Discuss the kinds of preventive suspension under the Civil Service Law. When may a civil service employee placed under preventive suspension be entitled to compensation? Held: There are two kinds of preventive suspension of civil service employees who are charged with offenses punishable by removal or suspension: (1) preventive suspension pending investigation (Sec. 51, Civil Service Law, EO No. 292) and (2) preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated (Section 47, par. 4, Civil Service Law, EO No. 292). Preventive suspension pending investigation is not a penalty. It is a measure intended to enable the disciplining authority to investigate charges against respondent by preventing the latter from intimidating or in any way influencing witnesses against him. If the investigation is not finished and a decision is not rendered within that period, the suspension will be lifted and the respondent will automatically be

reinstated. If after investigation respondent is found innocent of the charges and is exonerated, he should be reinstated. However, no compensation was due for the period of preventive suspension pending investigation. The Civil Service Act of 1959 (R.A. No. 2260) providing for compensation in such a case once the respondent was exonerated was revised in 1975 and the provision on the payment of salaries during suspension was deleted. But although it is held that employees who are preventively suspended pending investigation are not entitled to the payment of their salaries even if they are exonerated, they are entitled to compensation for the period of their suspension pending appeal if eventually they are found innocent. Preventive suspension pending investigation x x x is not a penalty but only a means of enabling the disciplining authority to conduct an unhampered investigation. On the other hand, preventive suspension pending appeal is actually punitive although it is in effect subsequently considered illegal if respondent is exonerated and the administrative decision finding him guilty is reversed. Hence, he should be reinstated with full pay for the period of the suspension. (Gloria v. CA, G.R. No. 131012, April 21, 1999, En Banc [Mendoza]) 279. Discuss the power of Ombudsman to conduct administrative investigations, and to impose preventive suspension. Held: Worth stressing, to resolve the present controversy, we must recall that the authority of the Ombudsman to conduct administrative investigations is mandated by no less than the Constitution. x x x R.A. 6770, the Ombudsman Law, further grants the Office of the Ombudsman the statutory power to conduct administrative investigations. X x x Section 21 of R.A. 6770 names the officials subject to the Ombudsman s disciplinary authority x x x. Petitioner is an elective local official accused of grave misconduct and dishonesty. That the Office of the Ombudsman may conduct an administrative investigation into the acts complained of, appears clear from the foregoing provisions of R.A. 6770. However, the question of whether or not the Ombudsman may conduct an investigation over a particular act or omission, is different from the question of whether or not petitioner, after investigation, may be held administratively liable. This distinction ought here to be kept in mind, even as we must also take note that the power to investigate is distinct from the power to suspend preventively an erring public officer. Likewise worthy of note, the power of the Office of the Ombudsman to preventively suspend an official subject to its administrative investigation is provided by specific provision of law. X x x We have previously interpreted the phrase under his authority to mean that the Ombudsman can preventively suspend all officials under investigation by his office, regardless of the branch of government in which they are employed (Buenaseda v. Flavier, 226 SCRA 645, 654 [1993]), excepting of course those removable by impeachment, members of Congress and the Judiciary. The power to preventively suspend is available not only to the Ombudsman but also to the Deputy Ombudsman. This is the clear import of Section 24 of R.A. 6770 abovecited. There can be no question in this case as to the power and authority of respondent Deputy Ombudsman to issue an order of preventive suspension against an official like the petitioner, to prevent that official from using his office to intimidate or influence witnesses (Gloria v. CA, et al., G.R. No. 131012, April 21, 1999, p. 7, 306 SCRA 287) or to tamper with records that might be vital to the prosecution of the case

against him (Yasay, Jr. v. Desierto, et al., G.R. No. 134495, December 28, 1998, p. 9, 300 SCRA 494). In our view, the present controversy simply boils down to this pivotal question: Given the purpose of preventive suspension and the circumstances of this case, did respondent Deputy Ombudsman commit a grave abuse of discretion when he set the period of preventive suspension at six months? Preventive suspension under Sec. 24, R.A. 6770 x x x may be imposed when, among other factors, the evidence of guilt is strong. The period for which an official may be preventively suspended must not exceed six months. In this case, petitioner was preventively suspended and ordered to cease and desist from holding office for the entire period of six months, which is the maximum provided by law. The determination of whether or not the evidence of guilt is strong as to warrant preventive suspension rests with the Ombudsman (Nera v. Garcia, 106 Phil. 1031 [1960]; others omitted.). The discretion as regards the period of such suspension also necessarily belongs to the Ombudsman, except that he cannot extend the period of suspension beyond that provided by law (Castillo-Co v. Barbers, supra.). But, in our view, both the strength of the evidence to warrant said suspension and the propriety of the length or period of suspension imposed on petitioner are properly raised in this petition for certiorari and prohibition. X x x Xxx Given these findings, we cannot say now that there is no evidence sufficiently strong to justify the imposition of preventive suspension against petitioner. But considering its purpose and the circumstances in the case brought before us, it does appear to us that the imposition of the maximum period of six months is unwarranted. X x x [G]ranting that now the evidence against petitioner is already strong, even without conceding that initially it was weak, it is clear to us that the maximum six-month period is excessive and definitely longer than necessary for the Ombudsman to make its legitimate case against petitioner. We must conclude that the period during which petitioner was already preventively suspended, has been sufficient for the lawful purpose of preventing petitioner from hiding and destroying needed documents, or harassing and preventing witnesses who wish to appear against him. (Garcia v. Mojica, 314 SCRA 207, Sept. 10, 1999, 2nd Div. [Quisumbing]) 280. Distinguish preventive suspension under the Local Government Code from preventive suspension under the Ombudsman Act. Held: We reach the foregoing conclusion, however, without necessarily subscribing to petitioner s claim that the Local Government Code, which he averred should apply to this case of an elective local official, has been violated. True, under said Code, preventive suspension may only be imposed after the issues are joined, and only for a maximum period of sixty days. Here, petitioner was suspended without having had the chance to refute first the charges against him, and for the maximum period of six months provided by the Ombudsman Law. But as respondents argue, administrative complaints commenced under the Ombudsman Law are distinct from those initiated under the Local Government Code. Respondents point out that the shorter period of suspension under the Local Government Code is intended to limit the period of suspension that may be imposed by a mayor, a governor, or the President, who may be motivated by partisan political considerations. In contrast the Ombudsman, who can impose a longer period of preventive suspension, is not likely to be similarly motivated because it is a constitutional body. The distinction is valid but not decisive, in our view, of whether there has been grave abuse of discretion in a specific case of preventive suspension. Xxx

Respondents may be correct in pointing out the reason for the shorter period of preventive suspension imposable under the Local Government Code. Political color could taint the exercise of the power to suspend local officials by the mayor, governor, or President s office. In contrast the Ombudsman, considering the constitutional origin of his Office, always ought to be insulated from the vagaries of politics, as respondents would have us believe. In Hagad v. Gozo-Dadole (251 SCRA 242 [1995]), on the matter of whether or not the Ombudsman has been stripped of his power to investigate local elective officials by virtue of the Local Government Code, we said: Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only uphold one and strike down the other. (Hagad v. Gozo-Dadole, supra, 251-252) It was also argued in Hagad, that the six-month preventive suspension under the Ombudsman Law is much too repugnant to the 60-day period that may be imposed under the Local Government Code. But per J. Vitug, the two provisions govern differently. (Id., at 253-254) However, petitioner now contends that Hagad did not settle the question of whether a local elective official may be preventively suspended even before the issues could be joined. Indeed it did not, but we have held in other cases that there could be preventive suspension even before the charges against the official are heard, or before the official is given an opportunity to prove his innocence (supra at note 14, excluding the case of Buenaseda v. Flavier). Preventive suspension is merely a preliminary step in an administrative investigation and is not in any way the final determination of the guilt of the official concerned. Petitioner also avers that the suspension order against him was issued in violation of Section 26[2] of the Ombudsman Law x x x. Petitioner argues that before an inquiry may be converted into a full-blown administrative investigation, the official concerned must be given 72 hours to answer the charges against him. In his case, petitioner says the inquiry was converted into an administrative investigation without him being given the required number of hours to answer. Indeed, it does not appear that petitioner was given the requisite 72 hours to submit a written answer to the complaint against him. This, however, does not make invalid the preventive suspension order issued against him. As we have earlier stated, a preventive suspension order may be issued even before the charges against the official concerned is heard. Moreover, respondents state that petitioner was given 10 days to submit his counter-affidavit to the complaint filed by respondent Tagaan. We find this 10-day period is in keeping with Section 5[a] of the Rules of Procedure of the Office of the Ombudsman x x x. (Garcia v. Mojica, 314 SCRA 207, Sept. 10, 1999, 2nd Div. [Quisumbing]) 281. Does Section 13, Republic Act No. 3019 exclude from its coverage the members of Congress and, therefore, the Sandiganbayan erred in decreeing the preventive suspension order against Senator Miriam Defensor-Santiago? Will the order of suspension prescribed by Republic Act No. 3019 not encroach on the power of Congress to discipline its own ranks under the Constitution? Held: The petition assails the authority of the Sandiganbayan to decree a ninety-day preventive suspension of Mme. Miriam Defensor-Santiago, a Senator of the Republic of the Philippines, from any

government position, and furnishing a copy thereof to the Senate of the Philippines for the implementation of the suspension order. The authority of the Sandiganbayan to order the preventive suspension of an incumbent public official charged with violation of the provisions of Republic Act No. 3019 has both legal and jurisprudential support. X x x In the relatively recent case of Segovia v. Sandiganbayan (288 SCRA 328 [1998]), the Court reiterated: The validity of Section 13, R.A. 3019, as amended treating of the suspension pendente lite of an accused public officer may no longer be put at issue, having been repeatedly upheld by this Court. Xxx The provision of suspension pendente lite applies to all persons indicted upon a valid information under the Act, whether they be appointive or elective officials; or permanent or temporary employees, or pertaining to the career or non-career service. (At pp. 336-337) It would appear, indeed, to be a ministerial duty of the court to issue an order of suspension upon determination of the validity of the information filed before it. Once the information is found to be sufficient in form and substance, the court is bound to issue an order of suspension as a matter of course, and there seems to be no ifs and buts about it. (Libanan v. Sandiganbayan, 163 SCRA 163 [1988]) Explaining the nature of the preventive suspension, the Court in the case of Bayot v. Sandiganbayan (128 SCRA 383 [1984]) observed: x x x It is not a penalty because it is not imposed as a result of judicial proceedings. In fact, if acquitted, the official concerned shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension. (At p. 386) In issuing the preventive suspension of petitioner, the Sandiganbayan merely adhered to the clear and unequivocal mandate of the law, as well as the jurisprudence in which the Court has, more than once, upheld Sandiganbayan s authority to decree the suspension of public officials and employees indicted before it. Section 13 of Republic Act No. 3019 does not state that the public officer concerned must be suspended only in the office where he is alleged to have committed the acts with which he has been charged. Thus, it has been held that the use of the word office would indicate that it applies to any office which the officer charged may be holding, and not only the particular office under which he stands accused. (Bayot v. Sandiganbayan, supra; Segovia v. Sandiganbayan, supra.) En passant, while the imposition of suspension is not automatic or self-operative as the validity of the information must be determined in a pre-suspension hearing, there is no hard and fast rule as to the conduct thereof. It has been said that x x x No specific rules need be laid down for such pre-suspension hearing. Suffice it to state that the accused should be given a fair and adequate opportunity to challenge the VALIDITY OF THE CRIMINAL PROCEEDINGS against him, e.g., that he has not been afforded the right of due preliminary investigation; that the acts for which he stands charged do not constitute a violation of the provisions of Republic Act 3019 or the bribery provisions of the Revised Penal Code which would warrant his mandatory suspension from office under Section 13 of the Act; or he may present a motion to quash the information on any of the grounds provided for in Rule 117 of the Rules of Court x x x.

xxx Likewise, he is accorded the right to challenge the propriety of his prosecution on the ground that the acts for which he is charged do not constitute a violation of Rep. Act 3019, or of the provisions on bribery of the Revised Penal Code, and the right to present a motion to quash the information on any other grounds provided in Rule 117 of the Rules of Court. However, a challenge to the validity of the criminal proceedings on the ground that the acts for which the accused is charged do not constitute a violation of the provisions of Rep. Act No. 3019, or of the provisions on bribery of the Revised Penal Code, should be treated only in the same manner as a challenge to the criminal proceeding by way of a motion to quash on the ground provided in Paragraph (a), Section 2 of Rule 117 of the Rules of Court, i.e., that the facts charged do not constitute an offense. In other words, a resolution of the challenge to the validity of the criminal proceeding, on such ground, should be limited to an inquiry whether the facts alleged in the information, if hypothetically admitted, constitute the elements of an offense punishable under Rep. Act 3019 or the provisions on bribery of the Revised Penal Code. (Luciano v. Mariano, 40 SCRA 187 [1971]; People v. Albano, 163 SCRA 511, 517519 [1988]) The law does not require that the guilt of the accused must be established in a pre-suspension proceeding before trial on the merits proceeds. Neither does it contemplate a proceeding to determine (1) the strength of the evidence of culpability against him, (2) the gravity of the offense charged, or (3) whether or not his continuance in office could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence before the court could have a valid basis in decreeing preventive suspension pending the trial of the case. All it secures to the accused is adequate opportunity to challenge the validity or regularity of the proceedings against him, such as, that he has not been afforded the right to due preliminary investigation, that the acts imputed to him do not constitute a specific crime warranting his mandatory suspension from office under Section 13 of Republic Act No. 3019, or that the information is subject to quashal on any of the grounds set out in Section 3, Rule 117, of the Revised Rules on Criminal Procedure (Segovia v. Sandiganbayan, supra; Resolution of the Supreme Court in A.M. No. 00-05-03-SC, dated 03 October 2000, which became effective on 01 December 2000) Xxx The pronouncement, upholding the validity of the information filed against petitioner, behooved Sandiganbayan to discharge its mandated duty to forthwith issue the order of preventive suspension. The order of suspension prescribed by Republic Act No. 3019 is distinct from the power of Congress to discipline its own ranks under the Constitution which provides that each x x x house may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty days. (Section 16[3], Article VI, 1987 Constitution) The suspension contemplated in the above constitutional provision is a punitive measure that is imposed upon determination by the Senate or the House of Representatives, as the case may be, upon an erring member. Thus, in its resolution in the case of Ceferino Paredes, Jr. v. Sandiganbayan, et al. (G.R. No. 118364, 08 August 1995), the Court affirmed the order of suspension of Congressman Paredes by the Sandiganbayan, despite his protestations on the encroachment by the court on the prerogatives of Congress. The Court ruled: x x x. Petitioner s invocation of Section 16 (3), Article VI of the Constitution which deals with the power of each House of Congress inter alia to punish its Members for disorderly behavior, and suspend or expel a Member by a vote of two-thirds of all its Members subject to the qualification that the penalty

of suspension, when imposed, should not exceed sixty days in unavailing, as it appears to be quite distinct from the suspension spoken of in Section 13 of RA 3019, which is not a penalty but a preliminary, preventive measure, prescinding from the fact that the latter is not being imposed on petitioner for misbehavior as a Member of the House of Representatives. The doctrine of separation of powers by itself may not be deemed to have effectively excluded Members of Congress from Republic Act No. 3019 nor from its sanctions. The maxim simply recognizes each of the three co-equal and independent, albeit coordinate, branches of the government the Legislative, the Executive and the Judiciary has exclusive prerogatives and cognizance within its own sphere of influence and effectively prevents one branch from unduly intruding into the internal affairs of either branch. Parenthetically, it might be well to elaborate a bit. Section 1, Article VIII, of the 1987 Constitution, empowers the Court to act not only in the settlement of actual controversies involving rights which are legally demandable and enforceable, but also in the determination of 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. The provision allowing the Court to look into any possible grave abuse of discretion committed by any government instrumentality has evidently been couched in general terms in order to make it malleable to judicial interpretation in the light of any emerging milieu. In its normal concept, the term has been said to imply an arbitrary, despotic, capricious or whimsical exercise of judgment amounting to lack or excess of jurisdiction. When the question, however, pertains to an affair internal to either of Congress or the Executive, the Court subscribes to the view that unless an infringement of any specific Constitutional proscription thereby inheres the Court should not deign substitute its own judgment over that of any of the other two branches of government. It is an impairment or a clear disregard of a specific constitutional precept or provision that can unbolt the steel door for judicial intervention. If any part of the Constitution is not, or ceases to be, responsive to contemporary needs, it is the people, not the Court, who must promptly react in the manner prescribed by the Charter itself. Republic Act No. 3019 does not exclude from its coverage the members of Congress and that, therefore, the Sandiganbayan did not err in thus decreeing the assailed preventive suspension order. Attention might be called to the fact that Criminal Case No. 16698 has been decided by the First Division of the Sandiganbayan on 06 December 1999, acquitting herein petitioner. The Court, nevertheless, deems it appropriate to render this decision for future guidance on the significant issue raised by petitioner. (Santiago v. Sandiganbayan, 356 SCRA 636, April 18, 2001, En Banc [Vitug])

282.

What is the doctrine of forgiveness or condonation? Does it apply to pending criminal cases?

Held: 1. A public official cannot be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer s previous misconduct to the extent of cutting off the right to remove him therefor. The foregoing rule, however, finds no application to criminal cases pending against petitioner. (Aguinaldo v. Santos, 212 SCRA 768, 773 [1992]) 2. A reelected local official may not be held administratively accountable for misconduct committed during his prior term of office. 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]) 283. What is the Doctrine of Condonation? Illustrative case.

Held: Petitioner contends that, per our ruling in Aguinaldo v. Santos (212 SCRA 768 [1992]), his reelection has rendered the administrative case filed against him moot and academic. This is because his reelection operates as a condonation by the electorate of the misconduct committed by an elective official during his previous term. Petitioner further cites the ruling of this Court in Pascual v. Hon. Provincial Board of Nueva Ecija (106 Phil. 466, 472 [1959], citing Conant v. Brogan, 6 N.Y.S.R. 332 [1887], cited in 17 A.L.R. 281, 63, So. 559, 50 LRA [NS] 553), that x x x When the people have elected a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of any. It is not for the court, by reason of such faults or misconduct to practically overrule the will of the people. Respondents, on the other hand, contend that while the contract in question was signed during the previous term of petitioner, it was to commence or be effective only on September 1998 or during his current term. It is the respondents submission that petitioner went beyond the protective confines of jurisprudence when he agreed to extend his act to his current term of office. Aguinaldo cannot apply, according to respondents, because what is involved in this case is a misconduct committed during a previous term but to be effective during the current term. Respondents maintain that, x x x petitioner performed two acts with respect to the contract: he provided for a suspensive period making the supply contract commence or be effective during his succeeding or current term and during his current term of office he acceded to the suspensive period making the contract effective during his current term by causing the implementation of the contract. Hence, petitioner cannot take refuge in the fact of his reelection, according to respondents. Further, respondents point out that the contract in question was signed just four days before the date of the 1998 election and so it could not be presumed that when the people of Cebu City voted petitioner to office, they did so with full knowledge of petitioner s character. On this point, petitioner responds that knowledge of an official s previous acts is presumed and the court need not inquire whether, in reelecting him, the electorate was actually aware of his prior misdeeds. Petitioner cites our ruling in Salalima v. Guingona (257 SCRA 55 [1996]), wherein we absolved Albay governor Ramon R. Salalima of his administrative liability as regards a retainer agreement he signed in favor of a law firm during his previous term, although disbursements of public funds to cover payments under the agreement were still being done during his subsequent term. Petitioner argues that, following Salalima, the doctrine of Aguinaldo applies even where the effects of the acts complained of are still evident during the subsequent term of the reelected official. The implementation of the contract is a mere incident of its execution. Besides, according to petitioner, the sole act for which he has been administratively charged is the signing of the contract with F.E. Zuellig. The charge, in his view, excludes the contract s execution or implementation, or any act subsequent to the perfection of the contract. In Salalima, we recall that the Solicitor General maintained that Aguinaldo did not apply to that case because the administrative case against Governor Rodolfo Aguinaldo of Cagayan was already pending when he filed his certificate of candidacy for his reelection bid. Nevertheless, in Salalima, the Court applied the Aguinaldo doctrine, even if the administrative case against Governor Salalima was filed after his reelection.

Xxx We now come to the concluding inquiry. Granting that the Office of the Ombudsman may investigate, for purposes provided for by law, the acts of petitioner committed prior to his present term of office; and that it may preventively suspend him for a reasonable period, can that office hold him administratively liable for said acts? In a number of cases, we have repeatedly held that a reelected local official may not be held administratively accountable for misconduct committed during his prior term of office (Pascual v. Hon. Provincial Board of Nueva Ecija, 106 Phil. 466 [1959]; others omitted). The rationale for this holding is that when the electorate put him back into office, it is resumed 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. However, in the present case, respondents point out that the contract entered into by petitioner with F.E. Zuellig was signed just four days before the date of the elections. It was not made an issue during the election, and so the electorate could not be said to have voted for petitioner with knowledge of this particular aspect of his life and character. For his part, petitioner contends that the only conclusive determining factor as regards the people s thinking on the matter is an election. On this point we agree with petitioner. That the people voted for an official with knowledge of his character is presumed, precisely to eliminate the need to determine, in factual terms, the extent of this knowledge. Such an undertaking will obviously be impossible. Our rulings on the matter do not distinguish the precise timing or period when the misconduct was committed, reckoned from the date of the official s reelection, except that it must be prior to said date. As held in Salalima, The rule adopted in Pascual, qualified in Aguinaldo insofar as criminal cases are concerned, is still a good law. Such a rule is not only founded on the theory that an official s reelection expresses the sovereign will of the electorate to forgive or condone any act or omission constituting a ground for administrative discipline which was committed during his previous term. We may add that sound policy dictates it. To rule otherwise would open the floodgates to exacerbating endless partisan contests between the reelected official and his political enemies, who may not stop to hound the former during his new term with administrative cases for acts alleged to have been committed during his previous term. His second term may thus be devoted to defending himself in the said cases to the detriment of public service x x x. (Emphasis added.) (Salalima v. Guingona, supra at 115) The above ruling in Salalima applies to this case. Petitioner cannot anymore be held administratively liable for an act done during his previous term, that is, his signing of the contract with F.E. Zuellig. The assailed retainer agreement in Salalima was executed sometime in 1990. Governor Salalima was reelected in 1992 and payments for the retainer continued to be made during his succeeding term. This situation is no different from the one in the present case, wherein deliveries of the asphalt under the contract with F.E. Zuellig and the payments therefor were supposed to have commenced on September 1998, during petitioner s second term. However, respondents argue that the contract, although signed on May 7, 1998, during petitioner s prior term, is to be made effective only during his present term.

We fail to see any difference to justify a valid distinction in the result. The agreement between petitioner (representing Cebu City) and F.E. Zuellig was perfected on the date the contract was signed, during petitioner s prior term. At that moment, petitioner already acceded to the terms of the contract, including stipulations now alleged to be prejudicial to the city government. Thus, any culpability petitioner may have in signing the contract already became extant on the day the contract was signed. It hardly matters that the deliveries under the contract are supposed to have been made months later. While petitioner can no longer be held administratively liable for signing the contract with F.E. Zuellig, however, this should not prejudice the filing of any case other than administrative against petitioner. Our ruling in this case, may not be taken to mean the total exoneration of petitioner for whatever wrongdoing, if any, might have been committed in signing the subject contract. The ruling now is limited to the question of whether or not he may be held administratively liable therefor, and it is our considered view that he may not. (Garcia v. Mojica, 314 SCRA 207, Sept. 10, 1999, 2nd Div. [Quisumbing]) 284. What are the situations covered by the law on nepotism?

Held: Under the definition of nepotism, one is guilty of nepotism if an appointment is issued in favor of a relative within the third civil degree of consanguinity or affinity of any of the following: a) b) c) d) appointing authority; recommending authority; chief of the bureau or office; and person exercising immediate supervision over the appointee.

Clearly, there are four situations covered. In the last two mentioned situations, it is immaterial who the appointing or recommending authority is. To constitute a violation of the law, it suffices that an appointment is extended or issued in favor of a relative within the third civil degree of consanguinity or affinity of the chief of the bureau or office, or the person exercising immediate supervision over the appointee. (CSC v. Pedro O. Dacoycoy, G.R. No. 135805, April 29, 1999, En Banc [Pardo]) 285. What are the exemptions from the operation of the rules on nepotism?

Ans.: 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) 286. Distinguish term of office from tenure of the incumbent.

Held: In the law of public officers, there is a settled distinction between term and tenure. [T]he term of an office must be distinguished from the tenure of the incumbent. The term means the time during which the officer may claim to hold office as of right, and fixes the interval after which the several incumbents shall succeed one another. The tenure represents the term during which the incumbent actually holds the office. The term of office is not affected by the hold-over. The tenure may be shorter than the term for reasons within or beyond the power of the incumbent. (Thelma P. Gaminde v. COA, G.R. No. 140335, Dec. 13, 2000, En Banc [Pardo])

287. Discuss the operation of the rotational plan insofar as the term of office of the Chairman and Members of the Constitutional Commissions is concerned. Held: In Republic v. Imperial (96 Phil. 770 [1955]), we said that the operation of the rotational plan requires two conditions, both indispensable to its workability: (1) that the terms of the first three (3) Commissioners should start on a common date, and (2) that any vacancy due to death, resignation or disability before the expiration of the term should only be filled only for the unexpired balance of the term. Consequently, the terms of the first Chairmen and Commissioners of the Constitutional Commissions under the 1987 Constitution must start on a common date, irrespective of the variations in the dates of appointments and qualifications of the appointees, in order that the expiration of the first terms of seven, five and three years should lead to the regular recurrence of the two-year interval between the expiration of the terms. Applying the foregoing conditions x x x, we rule that the appropriate starting point of the terms of office of the first appointees to the Constitutional Commissions under the 1987 Constitution must be on February 2, 1987, the date of the adoption of the 1987 Constitution. In case of a belated appointment or qualification, the interval between the start of the term and the actual qualification of the appointee must be counted against the latter. (Thelma P. Gaminde v. COA, G.R. No. 140335, Dec. 13, 2000, En Banc [Pardo]) 288. What is the hold-over doctrine? What is its purpose?

Held: 1. The concept of holdover when applied to a public officer implies that the office has a fixed term and the incumbent is holding onto the succeeding term. It is usually provided by law that officers elected or appointed for a fixed term shall remain in office not only for that term but until their successors have been elected and qualified. Where this provision is found, the office does not become vacant upon the expiration of the term if there is no successor elected and qualified to assume it, but the present incumbent will carry over until his successor is elected and qualified, even though it be beyond the term fixed by law. Absent an express or implied constitutional or statutory provision to the contrary, an officer is entitled to stay in office until his successor is appointed or chosen and has qualified. The legislative intent of not allowing holdover must be clearly expressed or at least implied in the legislative enactment, otherwise it is reasonable to assume that the law-making body favors the same. Indeed, the law abhors a vacuum in public offices, and courts generally indulge in the strong presumption against a legislative intent to create, by statute, a condition which may result in an executive or administrative office becoming, for any period of time, wholly vacant or unoccupied by one lawfully authorized to exercise its functions. This is founded on obvious considerations of public policy, for the principle of holdover is specifically intended to prevent public convenience from suffering because of a vacancy and to avoid a hiatus in the performance of government functions. (Lecaroz v. Sandiganbayan, 305 SCRA 397, March 25, 1999, 2nd Div. [Bellosillo]) 2. The rule is settled that unless holding over be expressly or impliedly prohibited, the incumbent may continue to hold over until someone else is elected and qualified to assume the office. This rule is demanded by the most obvious requirements of public policy, for without it there must frequently be cases where, from a failure to elect or a refusal or neglect to qualify, the office would be vacant and the public service entirely suspended. Otherwise stated, the purpose is to prevent a hiatus in the government pending the time when the successor may be chosen and inducted into office. (Galarosa v. Valencia, 227 SCRA 728, Nov. 11, 1993, En Banc [Davide, Jr.])

289.

What is resignation? What are the requisites of a valid resignation?

Held: 1. It is the act of giving up or the act of an officer by which he declines his office and renounces the further right to use it. It is an expression of the incumbent in some form, express or implied, of the intention to surrender, renounce, and relinquish the office and the acceptance by competent and lawful authority. To constitute a complete and operative resignation from public office, there must be: (a) an intention to relinquish a part of the term; (b) an act of relinquishment; and (c) an acceptance by the proper authority. The last one is required by reason of Article 238 of the Revised Penal Code. (Sangguniang Bayan of San Andres, Catanduanes v. CA, 284 SCRA 276, Jan. 16, 1998) 2. Resignation x x x is a factual question and its elements are beyond quibble: there must be an intent to resign and the intent must be coupled by acts of relinquishment (Gonzales v. Hernandez, 2 SCRA 228 [1961]). The validity of a resignation is not governed by any formal requirement as to form. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation is clear, it must be given legal effect. (Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001, en Banc [Puno])

290. What is abandonment of an office? resignation?

What are its requisites?

How is it distinguished from

Held: Abandonment of an office has been defined as the voluntary relinquishment of an office by the holder, with the intention of terminating his possession and control thereof. Indeed, abandonment of office is a species of resignation; while resignation in general is a formal relinquishment, abandonment is a voluntary relinquishment through nonuser. Abandonment springs from and is accompanied by deliberation and freedom of choice. Its concomitant effect is that the former holder of an office can no longer legally repossess it even by forcible reoccupancy. Clear intention to abandon should be manifested by the officer concerned. Such intention may be express or inferred from his own conduct. Thus, the failure to perform the duties pertaining to the office must be with the officer s actual or imputed intention to abandon and relinquish the office. Abandonment of an office is not wholly a matter of intention; it results from a complete abandonment of duties of such continuance that the law will infer a relinquishment. Therefore, there are two essential elements of abandonment; first, an intention to abandon and, second, an overt or external act by which the intention is carried into effect. (Sangguniang Bayan of San Andres, Catanduanes v. CA, 284 SCRA 276, Jan. 16, 1998) 291. Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and reassign her to the Law Department. Petitioner further argues that only the COMELEC, acting as a collegial body, can authorize such reappointment. Moreover, petitioner maintains that a reassignment without her consent amounts to removal from office without due process and therefore illegal. Held: Petitioner s posturing will hold water if Benipayo does not possess any color of title to the office of Chairman of the COMELEC. We have ruled, however, that Benipayo is the de jure COMELEC Chairman, and consequently he has full authority to exercise all the powers of that office for so long as his ad interim appointment remains effective. X x x. The Chairman, as the Chief Executive of the COMELEC, is expressly empowered on his own authority to transfer or reassign COMELEC personnel in accordance with the Civil Service Law. In the exercise of this power, the Chairman is not required by law to secure the approval of the COMELEC en banc.

Petitioner s appointment papers x x x indisputably show that she held her Director IV position in the EID only in an acting or temporary capacity. Petitioner is not a Career Executive Service (CES), and neither does she hold Career Executive Service Eligibility, which are necessary qualifications for holding the position of Director IV as prescribed in the Qualifications Standards (Revised 1987) issued by the Civil Service Commission. Obviously, petitioner does not enjoy security of tenure as Director IV. X x x Xxx Having been appointed merely in a temporary or acting capacity, and not possessed of the necessary qualifications to hold the position of Director IV, petitioner has no legal basis in claiming that her reassignment was contrary to the Civil Service Law. X x x Still, petitioner assails her reassignment, carried out during the election period, as a prohibited act under Section 261 (h) of the Omnibus Election Code x x x. Xxx Petitioner claims that Benipayo failed to secure the approval of the COMELEC en banc to effect transfers or reassignments of COMELEC personnel during the election period. Moreover, petitioner insists that the COMELEC en banc must concur to every transfer or reassignment of COMELEC personnel during the election period. Contrary to petitioner s allegation, the COMELEC did in fact issue COMELEC Resolution No. 3300 dated November 6, 2000, exempting the COMELEC from Section 261 (h) of the Omnibus Election Code. X x x Xxx The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing before any transfer or reassignment can be made within thirty days prior to election day, refers only to COMELEC field personnel and not to head office personnel like the petitioner. Under the Revised Administrative Code (see Section 7 [4], Chapter 2, Subtitle C, Book V of the Revised Administrative Code), the COMELEC Chairman is the sole officer specifically vested with the power to transfer or reassign COMELEC personnel. The COMELEC Chairman will logically exercise the authority to transfer or reassign COMELEC personnel pursuant to COMELEC Resolution No. 3300. The COMELEC en banc cannot arrogate unto itself this power because that will mean amending the Revised Administrative Code, an act the COMELEC en banc cannot legally do. COMELEC Resolution No. 3300 does not require that every transfer or reassignment of COMELEC personnel should carry the concurrence of the COMELEC as a collegial body. Interpreting Resolution No. 3300 to require such concurrence will render the resolution meaningless since the COMELEC en banc will have to approve every personnel transfer or reassignment, making the resolution utterly useless. Resolution No. 3300 should be interpreted for what it is, an approval to effect transfers and reassignments of personnel, without need of securing a second approval from the COMELEC en banc to actually implement such transfer or reassignment. The COMELEC Chairman is the official expressly authorized by law to transfer or reassign COMELEC personnel. The person holding that office, in a de jure capacity, is Benipayo. The COMELEC en banc, in COMELEC Resolution No. 3300, approved the transfer or reassignment of COMELEC personnel during the election period. Thus, Benipayo s order reassigning petitioner from the EID to the Law Department does not violate Section 261 (h) of the Omnibus Election Code. For the same reason, Benipayo s order designating Cinco Officer-in-Charge of the EID is legally unassailable. (Matibag v. Benipayo, 380 SCRA 49, April 2, 2002, En Banc [Carpio])

292. Is a government employee who has been ordered arrested and detained for a non-bailable offense and for which he was suspended for his inability to report for work until the termination of his case, still required to file a formal application for leave of absence to ensure his reinstatement upon his acquittal and thus protect his security of tenure? Concomitantly, will his prolonged absence from office for more than one (1) year automatically justify his being dropped from the rolls without prior notice despite his being allegedly placed under suspension by his employer until the termination of his case, which finally resulted in his acquittal for lack of evidence? EUSEBIA R. GALZOTE was employed as a lowly clerk in the service of the City Government of Makati City. With her meager income she was the lone provider for her children. But her simple life was disrupted abruptly when she was arrested without warrant and detained for more than three (3) years for a crime she did not commit. Throughout her ordeal she trusted the city government that the suspension imposed on her was only until the final disposition of her case. As she drew near her vindication she never did expect the worst to come to her. On the third year of her detention the city government lifted her suspension, dropped her from the rolls without prior notice and without her knowledge, much less gave her an opportunity to forthwith correct the omission of an application for leave of absence belatedly laid on her. Upon her acquittal for lack of evidence and her release from detention she was denied reinstatement to her position. She was forced to seek recourse in the Civil Service Commission which ordered her immediate reinstatement with back wages from 19 October 1994, the date when she presented herself for reassumption of duties but was turned back by the city government, up to the time of her actual reinstatement. Xxx Plainly, the case of petitioner City Government of Makati City revolves around a rotunda of doubt, a dilemma concerning the legal status and implications of its suspension of private respondent Eusebia R. Galzote and the automatic leave of absence espoused by the Civil Service Commission. Against this concern is the punctilious adherence to technicality, the requirement that private respondent should have filed an application for leave of absence in proper form. The instant case is therefore a dispute between, at its worst, private respondent s substantial compliance with the standing rules, and the City Government s insistence that the lowly clerk should have still gone through the formalities of applying for leave despite her detention, of which petitioner had actual notice, and the suspension order couched in simple language that she was being suspended until the final disposition of her criminal case. The meaning of suspension until the final disposition of her case is that should her case be dismissed she should be reinstated to her position with payment of back wages. She did not have to apply for leave of absence since she was already suspended by her employer until her case would be terminated. We have done justice to the workingman in the past; today we will do no less by resolving all doubts in favor of the humble employee in faithful obeisance to the constitutional mandate to afford full protection to labor (Const., Art. XIII, Sec. 3, par. 1; Art. II, Sec. 18) Xxx As may be gleaned from the pleadings of the parties, the issues are: (1) whether private respondent Eusebia R. Galzote may be considered absent without leave; (b) whether due process had been observed before she was dropped from the rolls; and, (3) whether she may be deemed to have abandoned her position, hence, not entitled to reinstatement with back salaries for not having filed a formal application for leave. Encapsulated, the issues may be reduced to whether private respondent may be considered absent without leave or whether she abandoned her job as to justify being dropped from the service for not filing a formal application for leave.

Petitioner would have private respondent declared on AWOL and faults her for failing to file an application for leave of absence under Secs. 20 (Now Sec. 52 of Rule XVI, Leave of Absence, of Res. No. 91-1631 dated 27 December 1991, as amended by CSC MC No. 41, s. 1998) and 35 (Now Sec. 63 of Rule XVI, Leave of Absence, of Res. No. 91-1631 dated 27 December 1991, as amended by CSC MC Nos. 41, s. 1998 and 14, s. 1999) of the CSC Rules and rejects the CSC s ruling of an automatic leave of absence for the period of her detention since the current Civil Service Law and Rules do not contain any specific provision on automatic leave of absence. The Court believes that private respondent cannot be faulted for failing to file prior to her detention an application for leave and obtain approval thereof. The records clearly show that she had been advised three (3) days after her arrest, or on 9 September 1991, that petitioner City government of Makati City had placed her under suspension until the final disposition of her criminal case. This act of petitioner indubitably recognized private respondent s predicament and thus allowed her to forego reporting for work during the pendency of her criminal case without the needless exercise of strict formalities. At the very least, this official communication should be taken as an equivalent of a prior approved leave of absence since it was her employer itself which placed her under suspension and thus excused her from further formalities in applying for such leave. Moreover, the arrangement bound the City Government to allow private respondent to return to her work after the termination of her case, i.e., if acquitted of the criminal charge. This pledge sufficiently served as legitimate reason for her to altogether dispense with the formal application for leave; there was no reason to, as in fact it was not required, since she was for all practical purposes incapacitated or disabled to do so. Indeed, private respondent did not have the least intention to go on AWOL from her post as Clerk III of petitioner, for AWOL means the employee leaving or abandoning his post without justifiable reason and without notifying his employer. In the instant case, private respondent had a valid reason for failing to report for work as she was detained without bail. Hence, right after her release from detention, and when finally able to do so, she presented herself to the Municipal Personnel Officer of petitioner City Government to report for work. Certainly, had she been told that it was still necessary for her to file an application for leave despite the 9 September 1991 assurance from petitioner, private respondent would have lost no time in filing such piece of document. But the situation momentarily suspending her from work persisted: petitioner City Government did not alter the modus vivendi with private respondent and lulled her into believing that its commitment that her suspension was only until the termination of her case was true and reliable. Under the circumstances private respondent was in, prudence would have dictated petitioner, more particularly the incumbent city executive, in patria potestas, to advise her that it was still necessary although indeed unnecessary and a useless ceremony to file such application despite the suspension order, before depriving her of her legitimate right to return to her position. Patria potestas in piatate debet, non in atrocitate, consistere. Paternal power should consist or be exercised in affection, not in atrocity. It is clear from the records that private respondent Galzote was arrested and detained without a warrant on 6 September 1991 for which reason she and her co-accused were subjected immediately to inquest proceedings. This fact is evident from the instant petition itself and its attachments x x x. Hence, her ordeal in jail began on 6 September 1991 and ended only after her acquittal, thus leaving her no time to attend to the formality of filing a leave of absence. But petitioner City Government would unceremoniously set aside its 9 September 1991 suspension order claiming that it was superseded three (3) years later by a memorandum dropping her from the rolls effective 21 January 1993 for absence for more than one (1) year without official leave. Hence, the suspension order was void since there was no pending administrative charge against private respondent so that she was not excused from filing an application for leave. We do not agree. In placing private respondent under suspension until the final disposition of her criminal case, the Municipal Personnel Officer acted with competence, so he presumably knew that

his order of suspension was not akin to either suspension as penalty or preventive suspension since there was no administrative case against private respondent. As competence on the part of the MPO is presumed, any error on his part should not prejudice private respondent, and that what he had in mind was to consider her as being on leave of absence without pay and their employer-employee relationship being merely suspended, not severed, in the meantime. This construction of the order of suspension is actually more consistent with logic as well as fairness and kindness to its author, the MPO. Significantly, the idea of a suspended employer-employee relationship is widely accepted in labor law to account for situations wherein laborers would have no work to perform for causes not attributable to them (see e.g., Visayan Stevedore Transportation Company v. Court of Industrial Relations, No. L-21696, 25 February 1967, 19 SCRA 426; Tomas Lao Construction v. NLRC, G.R. No. 116781, 5 September 1997, 278 SCRA 716). We find no basis for denying the application of this principle to the instant case which also involves a lowly worker in the public service. Moreover, we certainly cannot nullify the City Government s order of suspension, as we have no reason to do so, much less retroactively apply such nullification to deprive private respondent of a compelling and valid reason for not filing the leave application. For as we have held, a void act though in law a mere scrap of paper nonetheless confers legitimacy upon past acts or omissions done in reliance thereof (De Agbayani v. Philippine National Bank, G.R. No. 231127, 29 April 1971, 38 SCRA 429; Municipality of Malabang v. Benito, G.R No. 28113, 28 March 1969, 27 SCRA 545). Consequently, the existence of a statute or executive order prior to its being adjudged void is an operative fact to which legal consequences are attached (De Agbayani, supra, p. 435). It would indeed be ghastly unfair to prevent private respondent from relying upon the order of suspension in lieu of a formal leave application. At any rate, statements are, or should be, construed against the one responsible for the confusion; otherwise stated, petitioner must assume full responsibility for the consequences of its own act, hence, he should be made to answer for the mix-up of private respondent as regards the leave application. At the very least, it should be considered estopped from claiming that its order of suspension is void or that it did not excuse private respondent from filing an application for leave on account of her incarceration. It is a fact that she relied upon this order, issued barely three (3) days from the date of her arrest, and assumed that when the criminal case would be settled she could return to work without need of any prior act. X x x Xxx The holding of the Civil Service Commission that private respondent was on automatic leave of absence during the period of her detention must be sustained. The CSC is the constitutionally mandated central personnel agency of the Government tasked to establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness and courtesy in the civil service (Const., Art. IX-B, Sec. 3) and strengthen the merit and rewards system, integrate all human resources development programs for all levels and ranks, and institutionalize a management climate conducive to public accountability. (Ibid.) Besides, the Administrative Code of 1987 further empowers the CSC to prescribe, amend, and enforce rules and regulations for carrying into effect the provisions of the Civil Service Law and other pertinent laws, (Bk. V, I (A), Ch. 3, Sec. 12) and for matters concerning leaves of absence, the Code specifically vests the CSC to ordain Sec. 60. Leave of absence. Officers and employees in the Civil Service shall be entitled to leave of absence, with or without pay, as may be provided by law and the rules and regulations of the Civil Service Commission in the interest of the service. Pursuant thereto the CSC promulgated Resolution No. 91-1631 dated 27 December 1991 entitled Rules Implementing Book V of Executive Order No. 292 and Other Pertinent Civil Service Laws which it has several times amended through memorandum circulars. It devotes Rule XVI to leaves of absence.

Petitioner City Government relies upon Secs. 20 and 35 to debunk the CSC ruling of an automatic leave of absence. Significantly, these provisions have been amended so that Sec. 20 of the Civil Service Rules is now Sec. 52 of Rule XVI, on Leave of Absence, of Resolution No. 91-1631 dated 27 December 1991 as amended by CSC MC No. 41, s. 1998, and Sec. 35 is now Sec. 63 as amended by CSC MC Nos. 41, s. 1998 and 14, s. 1999. Xxx As a general rule, Secs. 20 and 52, as well as Secs. 35 and 63, require an approved leave of absence to avoid being an AWOL. However, these provisions cannot be interpreted as exclusive and referring only to one mode of securing the approval of a leave of absence which would require an employee to apply for it, formalities and all, before exceeding thirty (30) days of absence in order to avoid from being dropped from the rolls. There are, after all, other means of seeking and granting an approved leave of absence, one of which is the CSC recognized rule of automatic leave of absence under specified circumstances. X x x Xxx As properly noted, the CSC was only interpreting its own rules on leave of absence and not a statutory provision (As a matter of fact, Sec. 60 of the Administrative Code does not provide for any rule on leave of absence other than that civil servants are entitled to leave of absence) in coming up with this uniform rule. Undoubtedly, the CSC like any other agency has the power to interpret its own rules and any phrase contained in them (Norwegian Nitrogen Products Co. v. United States of America, 288 SCRA 294, 325, 77 Led. 796, 812 [1933]) with its interpretation significantly becoming part of the rules themselves. X x x Xxx Under RA 6656 (An Act to Protect the Security of Tenure of Civil Service Officers and Employees in the Implementation of Government Reorganization) and RA 7160 (The Local Government Code of 1991), civil servants who are found illegally dismissed or retrenched are entitled to full pay for the period of their separation. Our final point. An efficient and honest bureaucracy is never inconsistent with the emphasis on and the recognition of the basic rights and privileges of our civil servants or, for that matter, the constitutional mandates of the Civil Service Commission. In fact only from an enlightened corps of government workers and an effective CSC grows the professionalization of the bureaucracy. Indeed the government cannot be left in the lurch; but neither could we decree that government personnel be separated from their jobs indiscriminately regardless of fault. The fine line between these concerns may be difficult to clearly draw but if we only exerted extra effort to rebel against the allure of legal oversimplification, justice would have been done where it is truly due. (City Government of Makati City v. Civil Service Commission, 376 SCRA 248, Feb. 6, 2002, En Banc [Bellosillo]) 293. What is abandonment of office? What are its essential elements?

Held: Abandonment of an office is the voluntary relinquishment of an office by the holder, with the intention of terminating his possession and control thereof (Sangguniang Bayan of San Andres, Catanduanes v. Court of Appeals, 284 SCRA 276 [1998]). In order to constitute abandonment of an office, it must be total and under such circumstances as clearly to indicate an absolute relinquishment (Airoso v. De Guzman, 49 Phil. 371 [1926]). There must be a complete abandonment of duties of such continuance that the law will infer a relinquishment (67 C.J.S. Officers Sec. 100, citing Cosby v. Moore, 65 So.2d 178, 259 Ala. 41). Abandonment of duties is a voluntary act (Ibid., citing Steingruber v. San Antonio, Comm. App., 220 S.W. 77, 78); it springs from and is accompanied by deliberation and freedom

of choice (Jorge v. Mayor, 10 SCRA 331 [1964], citing Teves v. Sindiong, 81 Ohil. 658 [1948]). There are, therefore, two essential elements of abandonment: first, an intention to abandon and second, an overt or external act by which the intention is carried into effect (67 C.J.S. Officers Sec. 100, citing Rainwater v. State ex rel. Strickland, 178 So. 484, 237 Ala. 482, 121 A.L.R. 981) Generally speaking, a person holding a public office may abandon such office by nonuser or acquiescence (Ibid., citing Herbert v. State Oil and Gas Bd., 250 So.2d 597, 287 Ala. 221). Non-user refers to a neglect to use a right or privilege or to exercise an office (Sangguniang Bayan of San Andres, Catanduanes v. Court of Appeals, supra). However, nonperformance of the duties of an office does not constitute abandonment where such nonperformance results from temporary disability or from involuntary failure to perform (67 C.J.S. Sec. 100, citing Doris v. Heroux, 47 A.2d 633, 71 R.I. 491). Abandonment may also result from an acquiescence by the officer in his wrongful removal or discharge, for instance, after a summary removal, an unreasonable delay by an officer illegally removed in taking steps to vindicate his rights may constitute an abandonment of the office (Ibid., citing Nicholas v. U.S., Ct. Cl., 42 S.Ct. 7, 257 U.S. 71, 66 L. Ed. 133). Where, while desiring and intending to hold the office, and with no willful desire or intention to abandon it, the public officer vacates it in deference to the requirements of a statute which is afterwards declared unconstitutional, such a surrender will not be deemed an abandonment and the officer may recover the effect. (Mechem, A Treatise on the Law of Public Offices and Officers, 1890 edition, p. 279, citing Turnipseed v. Hudson, 50 Miss. 429, 19 Am. Rep. 15) (Canonizado v. Aguirre, 351 SCRA 659, 665-668, Feb. 15, 2001, En Banc [Gonzaga-Reyes]) 294. By accepting another position in the government during the pendency of a case brought precisely to assail the constitutionality of his removal - may a person be deemed to have abandoned his claim for reinstatement? Held: Although petitioners do not deny the appointment of Canonizado as Inspector General, they maintain that Canonizado s initiation and tenacious pursuance of the present case would belie any intention to abandon his former office. Petitioners assert that Canonizado should not be faulted for seeking gainful employment during the pendency of this case. Furthermore, petitioners point out that from the time Canonizado assumed office as Inspector General he never received the salary pertaining to such position x x x. Xxx By accepting the position of Inspector General during the pendency of the present case brought precisely to assail the constitutionality of his removal from the NAPOLCOM Canonizado cannot be deemed to have abandoned his claim for reinstatement to the latter position. First of all, Canonizado did not voluntarily leave his post as Commissioner, but was compelled to do so on the strength of Section 8 of RA 8551 x x x In our decision of 25 January 2000, we struck down the abovequoted provision for being violative of petitioner s constitutionally guaranteed right to security of tenure. Thus, Canonizado harbored no willful desire or intention to abandon his official duties. In fact, Canonizado, together with petitioners x x x lost no time disputing what they perceived to be an illegal removal; a few weeks after RA 8551 took effect x x x petitioners instituted the current action x x x assailing the constitutionality of certain provisions of said law. The removal of petitioners from their positions by virtue of a constitutionally infirm act necessarily negates a finding of voluntary relinquishment. (Canonizado v. Aguirre, 351 SCRA 659, 665-668, Feb. 15, 2001, En Banc [Gonzaga-Reyes]) 295. What is the effect of acceptance of an incompatible office to a claim for reinstatement?

Held: The next issue is whether Canonizado s appointment to and acceptance of the position of Inspector General should result in an abandonment of his claim for reinstatement to the NAPOLCOM. It

is a well-settled rule that he who, while occupying one office, accepts another incompatible with the first, ipso facto vacates the first office and his title is thereby terminated without any other act or proceeding (Mechem, A Treatise on the Law of Public Offices and Officers, 1890 edition, p. 267). Public policy considerations dictate against allowing the same individual to perform inconsistent and incompatible duties (Ibid.). The incompatibility contemplated is not the mere physical impossibility of one person s performing the duties of the two offices due to a lack of time or the inability to be in two places at the same moment, but that which proceeds from the nature and relations of the two positions to each other as to give rise to contrariety and antagonism should one person attempt to faithfully and impartially discharge the duties of one toward the incumbent of the other. (Ibid.) There is no question that the positions of NAPOLCOM Commissioner and Inspector General of the IAS are incompatible with each other. As pointed out by respondents, RA 8551 prohibits any personnel of the IAS from sitting in a committee charged with the task of deliberating on the appointment, promotion, or assignment of any PNP personnel, whereas the NAPOLCOM has the power of control and supervision over the PNP. However, the rule on incompatibility of duties will not apply to the case at bar because at no point did Canonizado discharge the functions of the two offices simultaneously. Canonizado was forced out of his first office by the enactment of Section 8 of RA 8551. Thus, when Canonizado was appointed as Inspector General x x x he had ceased to discharge his official functions as NAPOLCOM Commissioner. X x x. Thus, to reiterate, the incompatibility of duties rule never had a chance to come into play for petitioner never occupied the two positions, of Commissioner and Inspector General, nor discharged their respective functions, concurrently. Xxx As in the Tan (Tan v. Gimenez, 107 Phil. 17 [1960]) and Gonzales (Gonzales v. Hernandez, 2 SCRA 228 [1961]) cases, Canonizado was compelled to leave his position as Commissioner, not by an erroneous decision, but by an unconstitutional provision of law. Canonizado, like the petitioners in the above mentioned cases, held a second office during the period that his appeal was pending. As stated in the Comment filed by petitioners, Canonizado was impelled to accept this subsequent position by a desire to continue serving the country, in whatever capacity. Surely, this selfless and noble aspiration deserves to be placed on at least equal footing with the worthy goal of providing for oneself and one s family, either of which are sufficient to justify Canonizado s acceptance of the position of Inspector General. A Contrary ruling would deprive petitioner of his right to live, which contemplates not only a right to earn a living, as held in previous cases, but also a right to lead a useful and productive life. Furthermore, prohibiting Canonizado from accepting a second position during the pendency of his petition would be to unjustly compel him to bear the consequences of an unconstitutional act which under no circumstance can be attributed to him. However, before Canonizado can re-assume his post as Commissioner, he should first resign as Inspector General of the IAS-PNP. (Canonizado v. Aguirre, 351 SCRA 659, Feb. 15, 2001, En Banc [Gonzaga-Reyes]) 296. May the appointment of a person assuming a position in the civil service under a completed appointment be validly recalled or revoked? Held: It has been held that upon the issuance of an appointment and the appointee s assumption of the position in the civil service, he acquires a legal right which cannot be taken away either by revocation of the appointment or by removal except for cause and with previous notice and hearing. (Mauna v. Civil Service Commission, 232 SCRA 388, 398 [1994]) Moreover, it is well-settled that the person assuming a position in the civil service under a completed appointment acquires a legal, not just an equitable, right to the position. This right is protected not only by statute, but by the Constitution as well, which right cannot be taken away by either revocation of the appointment, or by removal, unless there is valid cause to do so, provided that there is previous notice and hearing. (Aquino v. Civil Service Commission, 208 SCRA 240, 248 [1992])

Petitioner admits that his very first official act upon assuming the position of town mayor was to issue Office Order No. 95-01 which recalled the appointments of the private respondents. There was no previous notice, much less a hearing accorded to the latter. Clearly, it was petitioner who acted in undue haste to remove the private respondents without regard for the simple requirements of due process of law. While he argues that the appointing power has the sole authority to revoke said appointments, there is no debate that he does not have blanket authority to do so. Neither can he question the CSC s jurisdiction to affirm or revoke the recall. Rule V, Section 9 of the Omnibus Implementing Regulations of the Revised Administrative Code specifically provides that an appointment accepted by the appointee cannot be withdrawn or revoked by the appointing authority and shall remain in force and in effect until disapproved by the Commission. Thus, it is the CSC that is authorized to recall an appointment initially approved, but only when such appointment and approval are proven to be in disregard of applicable provisions of the civil service law and regulations (Debulgado v. Civil Service Commission, 237 SCRA 184, 200 [1994]). Moreover, Section 10 of the same rule provides: Sec. 10. An appointment issued in accordance with pertinent laws and rules shall take effect immediately upon its issuance by the appointing authority, and if the appointee has assumed the duties of the position, he shall be entitled to receive his salary at once without awaiting the approval of his appointment by the Commission. The appointment shall remain effective until disapproved by the Commission. In no case shall an appointment take effect earlier than the date of its issuance. Section 20 of Rule VI also provides: Sec. 20. Notwithstanding the initial approval of an appointment, the same may be recalled on any of the following grounds: (e) Non-compliance with the procedures/criteria provided in the agency s Merit Promotion Plan; (f) Failure to pass through the agency s Selection/Promotion Board; (g) Violation of the existing collective agreement between management and employees relative to promotion; or (h) Violation of other existing civil service law, rules and regulations. Accordingly, the appointments of the private respondents may only be recalled on the above-cited grounds. And yet, the only reason advanced by the petitioner to justify the recall was that these were midnight appointments. The CSC correctly ruled, however, that the constitutional prohibition on socalled midnight appointments, specifically those made within two (2) months immediately prior to the next presidential elections, applies only to the President or Acting President. (De Rama v. Court of Appeals, 353 SCRA 94, Feb. 28, 2001, En Banc [Ynares-Santiago]) 297. When may unconsented transfers be considered anathema to security of tenure?

Held: As held in Sta. Maria v. Lopez (31 SCRA 637, 653 citing Ibanez v. Commission on Elections, L26558, April 27, 1967, 19 SCRA 1002, 1012 and Section 12 of the Tax Code). "x x x the rule that outlaws unconsented transfers as anathema to security of tenure applies only to an officer who is appointed - not merely assigned - to a particular station. Such a rule does not pr[o]scribe a transfer carried out under a specific statute that empowers the head of an agency to periodically reassign the employees and officers in order to improve the service of the agency. x x x"

The guarantee of security of tenure under the Constitution is not a guarantee of perpetual employment. It only means that an employee cannot be dismissed (or transferred) from the service for causes other than those provided by law and after due process is accorded the employee. What it seeks to prevent is capricious exercise of the power to dismiss. But where it is the law-making authority itself which furnishes the ground for the transfer of a class of employees, no such capriciousness can be raised for so long as the remedy proposed to cure a perceived evil is germane to the purposes of the law. (Agripino A. De Guzman, Jr., et al. v. COMELEC, G.R. No. 129118, July 19, 2000, En Banc [Purisima]) 298. Discuss Abolition of Office?

Held: The creation and abolition of public offices is primarily a legislative function. It is acknowledged that Congress may abolish any office it creates without impairing the officer's right to continue in the position held and that such power may be exercised for various reasons, such as the lack of funds or in the interest of economy. However, in order for the abolition to be valid, it must be made in good faith, not for political or personal reasons, or in order to circumvent the constitutional security of tenure of civil service employees. An abolition of office connotes an intention to do away with such office wholly and permanently, as the word "abolished" denotes. Where one office is abolished and replaced with another office vested with similar functions, the abolition is a legal nullity. Thus, in U.P. Board of Regents v. Rasul (200 SCRA 685 [1991]) we said: It is true that a valid and bona fide abolition of an office denies to the incumbent the right to security of tenure (De la Llana v. Alba, 112 SCRA 294 [1982]). However, in this case, the renaming and restructuring of the PGH and its component units cannot give rise to a valid and bona fide abolition of the position of PGH Director. This is because where the abolished office and the offices created in its place have similar functions, the abolition lacks good faith (Jose L. Guerrero v. Hon. Antonio V. Arizabal, G.R. No. 81928, June 4, 1990, 186 SCRA 108 [1990]). We hereby apply the principle enunciated in Cezar Z. Dario v. Hon. Salvador M. Mison (176 SCRA 84 [1989]) that abolition which merely changes the nomenclature of positions is invalid and does not result in the removal of the incumbent. The above notwithstanding, and assuming that the abolition of the position of the PGH Director and the creation of a UP-PGH Medical Center Director are valid, the removal of the incumbent is still not justified for the reason that the duties and functions of the two positions are basically the same. This was also our ruling in Guerrero v. Arizabal (186 SCRA 108 [1990]), wherein we declared that the substantial identity in the functions between the two offices was indicia of bad faith in the removal of petitioner pursuant to a reorganization. (Alexis C. Canonizado, et al. v. Hon. Alexander P. Aguirre, et al., G.R. No. 133132, Jan. 25, 2000, En Banc [Gonzaga-Reyes]) 299. What is reorganization? When is it valid? When is it invalid?

Held: 1. Reorganization takes place when there is an alteration of the existing structure of government offices or units therein, including the lines of control, authority and responsibility between them. It involves a reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions. Naturally, it may result in the loss of one's position through removal or abolition of an office. However, for a reorganization to be valid, it must also pass the test of good faith, laid down in Dario v. Mison (176 SCRA 84 [1989]): x x x As a general rule, a reorganization is carried out in "good faith" if it is for the purpose of economy or to make bureaucracy more efficient. In that event, no dismissal (in case of dismissal) or separation actually occurs because the position itself ceases to exist. And in that case, security of tenure would not be a Chinese wall. Be that as it may, if the "abolition" which is nothing else but a separation or removal,

is done for political reasons or purposely to defeat security of tenure, or otherwise not in good faith, no valid "abolition" takes place and whatever "abolition" is done, is void ab initio. There is an invalid "abolition" as where there is merely a change of nomenclature of positions, or where claims of economy are belied by the existence of ample funds. (Alexis C. Canonizado, et al. v. Hon. Alexander P. Aguirre, et al., G.R. No. 133132, Jan. 25, 2000, En Banc [Gonzaga-Reyes]) 2. While the President s power to reorganize can not be denied, this does not mean however that the reorganization itself is properly made in accordance with law. Well-settled is the rule that reorganization is regarded as valid provided it is pursued in good faith. Thus, in Dario v. Mison, this Court has had the occasion to clarify that: As a general rule, a reorganization is carried out in good faith if it is for the purpose of economy or to make the bureaucracy more efficient. In that event no dismissal or separation actually occurs because the position itself ceases to exist. And in that case the security of tenure would not be a Chinese wall. Be that as it may, if the abolition which is nothing else but a separation or removal, is done for political reasons or purposely to defeat security of tenure, or otherwise not in good faith, no valid abolition takes place and whatever abolition done is void ab initio. There is an invalid abolition as where there is merely a change of nomenclature of positions or where claims of economy are belied by the existence of ample funds. (176 SCRA 84) (Larin v. Executive Secretary, 280 SCRA 713, Oct. 16, 1997) 300. What are the circumstances evidencing bad faith in the removal of employees as a result of reorganization and which may give rise to a claim for reinstatement or reappointment)? Held: 1) Where there is a significant increase in the number of positions in the new staffing pattern of the department or agency concerned; 2) Where an office is abolished and another performing substantially the same functions is created; 3) Where incumbents are replaced by those less qualified in terms of status of appointment, performance and merit; 4) Where there is a reclassification of offices in the department or agency concerned and the reclassified offices perform substantially the same functions as the original offices; 5) Where the removal violates the order of separation provided in Section 3 hereof. (Sec. 2, R.A. No. 6656; Larin v. Executive Secretary, 280 SCRA 713, Oct. 16, 1997)

ELECTION LAWS 301. Discuss the Right of Suffrage, and its substantive and procedural requirements.

Held: In a representative democracy such as ours, the right of suffrage, although accorded a prime niche in the hierarchy of rights embodied in the fundamental law, ought to be exercised within the proper bounds and framework of the Constitution and must properly yield to pertinent laws skillfully enacted by the Legislature, which statutes for all intents and purposes, are crafted to effectively insulate such so cherished right from ravishment and preserve the democratic institutions our people have, for so long, guarded against the spoils of opportunism, debauchery and abuse. To be sure, the right of suffrage x x x is not at all absolute. Needless to say, the exercise of the right of suffrage, as in the enjoyment of all other rights, is subject to existing substantive and procedural

requirements embodied in our Constitution, statute books and other repositories of law. Thus, as to the substantive aspect, Section 1, Article V of the Constitution provides: SECTION 1. SUFFRAGE MAY BE EXERCISED BY ALL CITIZENS OF THE PHILIPPINES NOT OTHERWISE DISQUALIFIED BY LAW, WHO ARE AT LEAST EIGHTEEN YEARS OF AGE, AND WHO SHALL HAVE RESIDED IN THE PHILIPPINES FOR AT LEAST ONE YEAR AND IN THE PLACE WHEREIN THEY PROPOSE TO VOTE FOR AT LAST SIX MONTHS IMMEDIATELY PRECEDING THE ELECTION. NO LITERACY, PROPERTY, OR OTHER SUBSTANTIVE REQUIREMENT SHALL BE IMPOSED ON THE EXERCISE OF SUFFRAGE. As to the procedural limitation, the right of a citizen to vote is necessarily conditioned upon certain procedural requirements he must undergo: among others, the process of registration. Specifically, a citizen in order to be qualified to exercise his right to vote, in addition to the minimum requirements set by the fundamental charter, is obliged by law to register, at present, under the provisions of Republic Act No. 8189, otherwise known as the Voter s Registration Act of 1996. (Akbayan-Youth v. COMELEC, 355 SCRA 318, Mar. 26, 2001, En Banc [Buena]) 302. Discuss the reason behind the principle of ballot secrecy. May the conduct of exit polls transgress the sanctity and the secrecy of the ballot to justify its prohibition? Held: The reason behind the principle of ballot secrecy is to avoid vote buying through voter identification. Thus, voters are prohibited from exhibiting the contents of their official ballots to other persons, from making copies thereof, or from putting distinguishing marks thereon so as to be identified. Also proscribed is finding out the contents of the ballots cast by particular voters or disclosing those of disabled or illiterate voters who have been assisted. Clearly, what is forbidden is the association of voters with their respective votes, for the purpose of assuring that the votes have been cast in accordance with the instructions of a third party. This result cannot, however, be achieved merely through the voters verbal and confidential disclosure to a pollster of whom they have voted for. In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the revelation of whom an elector has voted for is not compulsory, but voluntary. Voters may also choose not to reveal their identities. Indeed, narrowly tailored countermeasures may be prescribed by the Comelec, so as to minimize or suppress incidental problems in the conduct of exit polls, without transgressing the fundamental rights of our people. (ABS-CBN Broadcasting Corporation v. COMELEC, G.R. No. 133486, Jan. 28, 2000, En Banc [Panganiban]) 303. Discuss the meaning and purpose of residency requirement in Election Law.

Held: 1. The meaning and purpose of the residency requirement were explained recently in our decision in Aquino v. Comelec (248 SCRA 400, 420-421 [1995]), as follows: X x x [T]he place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain, i.e., his domicile, is that to which the Constitution refers when it speaks of residence for the purposes of election law. The manifest purpose of this deviation from the usual conceptions of residency in law as explained in Gallego v. Vera is to exclude strangers or newcomers unfamiliar with the conditions and needs of the community from taking advantage of favorable circumstances existing in that community for electoral gain. While there is nothing wrong with the practice of establishing residence in a given area for meeting election law requirements, this nonetheless defeats the essence of representation, which is to place through the assent of voters those most cognizant and sensitive to the needs of a particular district, if a candidate falls short of the period of residency mandated by law for him to qualify. That purpose could be obviously best met by individuals who have either had actual residence in the area for a given period or who have been domiciled in the same area either by origin or by choice.

(Marcita Mamba Perez v. COMELEC, G.R. No. 133944, Oct. 28, 1999, En Banc [Mendoza]) 2. The Constitution and the law requires residence as a qualification for seeking and holding elective public office, in order to give candidates the opportunity to be familiar with the needs, difficulties, aspirations, potentials for growth and all matters vital to the welfare of their constituencies; likewise, it enables the electorate to evaluate the office seekers qualifications and fitness for the job they aspire for. Inasmuch as Vicente Y. Emano has proven that he, together with his family, (1) had actually resided in a house he bought in 1973 in Cagayan de Oro City; (2) had actually held office there during his three terms as provincial governor of Misamis Oriental, the provincial capitol being located therein; and (3) has registered as voter in the city during the period required by law, he could not be deemed a stranger or newcomer when he ran for and was overwhelmingly voted as city mayor. Election laws must be liberally construed to give effect to the popular mandate. (Torayno, Sr. v. COMELEC, 337 SCRA 574, Aug. 9, 2000, En Banc [Panganiban]) 3. Generally, in requiring candidates to have a minimum period of residence in the area in which they seek to be elected, the Constitution or the law intends to prevent the possibility of a stranger or newcomer unacquainted with the conditions and needs of a community and not identified with the latter from [seeking] an elective office to serve that community. Such provision is aimed at excluding outsiders from taking advantage of favorable circumstances existing in that community for electoral gain. Establishing residence in a community merely to meet an election law requirement defeats the purpose of representation: to elect through the assent of voters those most cognizant and sensitive to the needs of the community. This purpose is best met by individuals who have either had actual residence in the area for a given period or who have been domiciled in the same area either by origin or by choice. (Torayno, Sr. v. COMELEC, 337 SCRA 574, Aug. 9, 2000, En Banc [Panganiban]) 304. Does the fact that a person is registered as a voter in one district proof that he is not domiciled in another district? Held: The fact that a person is registered as a voter in one district is not proof that he is not domiciled in another district. Thus, in Faypon v. Quirino (96 Phil. 294 [1954]), this Court held that the registration of a voter in a place other than his residence of origin is not sufficient to consider him to have abandoned or lost his residence. (Marcita Mamba Perez v. COMELEC, G.R. No. 133944, Oct. 28, 1999, En Banc [Mendoza])

305.

Discuss the nature of Voter s Registration.

Held: Stated differently, the act of registration is an indispensable precondition to the right of suffrage. For registration is part and parcel of the right to vote and an indispensable element in the election process. Thus, x x x registration cannot and should not be denigrated to the lowly stature of a mere statutory requirement. Proceeding from the significance of registration as a necessary requisite to the right to vote, the State undoubtedly, in the exercise of its inherent police power, may then enact laws to safeguard and regulate the act of voter s registration for the ultimate purpose of conducting honest, orderly and peaceful election, to the incidental yet generally important end, that even pre-election activities could be performed by the duly constituted authorities in a realistic and orderly manner one which is not indifferent and so far removed from the pressing order of the day and the prevalent circumstances of the times. (Akbayan-Youth v. COMELEC, 355 SCRA 318, Mar. 26, 2001, En Banc [Buena]) 306. What is the Lone Candidate Law? What are its salient provisions?

Answer: The Lone Candidate Law is Republic Act No. 8295, enacted on June 6, 1997. Section 2 thereof provides that Upon the expiration of the deadline for the filing of the certificate of candidacy in a

special election called to fill a vacancy in an elective position other than for President and Vice-President, when there is only one (1) qualified candidate for such position, the lone candidate shall be proclaimed elected to the position by proper proclaiming body of the Commission on Elections without holding the special election upon certification by the Commission on Elections that he is the only candidate for the office and is thereby deemed elected. Section 3 thereof provides that the lone candidate so proclaimed shall assume office not earlier than the scheduled election day, in the absence of any lawful ground to deny due course or cancel the certificate of candidacy in order to prevent such proclamation, as provided for under Sections 69 and 78 of Batas Pambansa Bilang 881 also known as the Omnibus Election Code. 307. Who are disqualified to run in a special election under the Lone Candidate Law?

Answer: Section 4 of the Lone Candidate Law provides that In addition to the disqualifications mentioned in Sections 12 and 68 of the Omnibus Election Code and Section 40 of Republic Act No. 7160, otherwise known as the Local Government Code, whenever the evidence of guilt is strong, the following persons are disqualified to run in a special election called to fill the vacancy in an elective office, to wit: a) Any elective official who has resigned from his office by accepting an appointive office or for whatever reason which he previously occupied but has caused to become vacant due to his resignation; and b) Any person who, directly or indirectly, coerces, bribes, threatens, harasses, intimidates or actually causes, inflicts or produces any violence, injury, punishment, torture, damage, loss or disadvantage to any person or persons aspiring to become a candidate or that of the immediate member of his family, his honor or property that is meant to eliminate all other potential candidate. 308. What is the purpose of the law in requiring the filing of certificate of candidacy and in fixing the time limit therefor? Held: 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) 309. May a disqualified candidate and whose certificate of candidacy was denied due course and/or canceled by the Comelec be validly substituted? Held: Even on the most basic and fundamental principles, it is readily understood that the concept of a substitute presupposes the existence of the person to be substituted, for how can a person take the place of somebody who does not exist or who never was. The Court has no other choice but to rule that in all instances enumerated in Section 77 of the Omnibus Election Code, the existence of a valid certificate of candidacy seasonably filed is a requisite sine qua non. All told, a disqualified candidate may only be substituted if he had a valid certificate of candidacy in the first place because, if the disqualified candidate did not have a valid and seasonably filed certificate of candidacy, he is and was not a candidate at all. If a person was not a candidate, he cannot be substituted under Section 77 of the Code. (Miranda v. Abaya, G.R. No. 136351, July 28, 1999, en Banc [Melo])

310. Should the votes cast for the substituted candidate be considered votes for the substitute candidate? Answer: Republic Act No. 9006, otherwise known as the Fair Election Act, provides in Section 12 thereof: In case of valid substitutions after the official ballots have been printed, the votes cast for the substituted candidates shall be considered as stray votes but shall not invalidate the whole ballot. For this purpose, the official ballots shall provide spaces where the voters may write the name of the substitute candidates if they are voting for the latter: Provided, however, That if the substitute candidate is of the same family name, this provision shall not apply. 311. What is the effect of the filing of certificate of candidacy by elective officials?

Answer: COMELEC Resolution No. 3636, promulgated March 1, 2001, implementing the Fair Election Act (R.A. No. 9006) provides in Section 26 thereof: any elective official, whether national or local, who has filed a certificate of candidacy for the same or any other office shall not be considered resigned from his office. Note that Section 67 of the Omnibus Election Code and the first proviso in the third paragraph of Section 11 of Republic Act No. 8436 which modified said Section 67, were expressly repealed and rendered ineffective, respectively, by Section 14 (Repealing Clause) of The Fair Election Act (R.A. No. 9006). 312. What kind of material misrepresentation is contemplated by Section 78 of the Omnibus Election Code as a ground for disqualification of a candidate? Does it include the use of surname? Held: Therefore, it may be concluded that the material misrepresentation contemplated by Section 78 of the (Omnibus Election) Code refers to qualifications for elective office. This conclusion is strengthened by the fact that the consequences imposed upon a candidate guilty of having made a false representation in his certificate of candidacy are grave to prevent the candidate from running or, if elected, from serving, or to prosecute him for violation of the election laws. It could not have been the intention of the law to deprive a person of such a basic and substantial political right to be voted for a public office upon just any innocuous mistake. [A]side from the requirement of materiality, a false representation under Section 78 must consist of a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. In other words, it must be made with an intention to deceive the electorate as to one s qualifications for public office. The use of a surname, when not intended to mislead or deceive the public as to one s identity, is not within the scope of the provision. (Victorino Salcedo II v. COMELEC, G.R. No. 135886, Aug. 16, 1999, En Banc [Gonzaga-Reyes]) 313. Who has authority to declare failure of elections and the calling of special election? What are the three instances where a failure of election may be declared? Held: The COMELEC s authority to declare failure of elections is provided in our election laws. Section 4 of RA 7166 provides that the Comelec sitting en banc by a majority vote of its members may decide, among others, the declaration of failure of election and the calling of special election as provided in Section 6 of the Omnibus Election Code. X x x There are three instances where a failure of election may be declared, namely, (a) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud or other analogous causes; (b) the election in any polling place has been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud or other analogous causes; or (c) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect on account of force

majeure, violence, terrorism, fraud or other analogous causes. In these instances, there is a resulting failure to elect. This is obvious in the first two scenarios, where the election was not held and where the election was suspended. As to the third scenario, where the preparation and the transmission of the election returns give rise to the consequence of failure to elect, it must x x x, be interpreted to mean that nobody emerged as a winner. (Banaga, Jr. v. COMELEC, 336 SCRA 701, July 31, 2000, En Banc [Quisumbing]) 314. What are the two conditions that must concur before the COMELEC can act on a verified petition seeking to declare a afailure of election? Held: Before the COMELEC can act on a verified petition seeking to declare a failure of election two conditions must concur, namely: (1) no voting took place in the precinct or precincts on the date fixed by law, or even if there was voting, the election resulted in a failure to elect; and (2) the votes not cast would have affected the result of the election. Note that the cause of such failure of election could only be any of the following: force majeure, violence, terrorism, fraud or other analogous causes. Thus, in Banaga, Jr. v. COMELEC (336 SCRA 701, July 31, 2000, En Banc [Quisumbing]), the SC held: We have painstakingly examined the petition filed by petitioner Banaga before the Comelec. But we found that petitioner did not allege at all that elections were either not held or suspended. Neither did he aver that although there was voting, nobody was elected. On the contrary, he conceded that an election took place for the office of vice-mayor of Paranaque City, and that private respondent was, in fact, proclaimed elected to that post. While petitioner contends that the election was tainted with widespread anomalies, it must be noted that to warrant a declaration of failure of election the commission of fraud must be such that it prevented or suspended the holding of an election, or marred fatally the preparation and transmission, custody and canvass of the election returns. These essential facts ought to have been alleged clearly by the petitioner below, but he did not. 315. Cite instances when Comelec may or may not validly declare failure of elections.

Held: In Mitmug v. COMELEC (230 SCRA 54 [1994]), petitioner instituted with the COMELEC an action to declare failure of election in forty-nine precincts where less than a quarter of the electorate were able to cast their votes. He also lodged an election protest with the Regional Trial Court disputing the result of the election in all precincts in his municipality. The Comelec denied motu proprio and without due notice and hearing the petition to declare failure of election despite petitioner s argument that he has meritorious grounds in support thereto, that is, massive disenfranchisement of voters due to terrorism. On review, we ruled that the Comelec did not gravely abuse its discretion in denying the petition. It was not proven that no actual voting took place. Neither was it shown that even if there was voting, the results thereon would be tantamount to failure to elect. Considering that there is no concurrence of the conditions seeking to declare failure of election, there is no longer need to receive evidence on alleged election irregularities. In Sardea v. COMELEC (225 SCRA 374 [1993]), all election materials and paraphernalia with the municipal board of canvassers were destroyed by the sympathizers of the losing mayoralty candidate. The board then decided to use the copies of election returns furnished to the municipal trial court. Petitioner therein filed a petition to stop the proceedings of the board of canvassers on the ground that it had no authority to use said election returns obtained from the municipal trial court. The petition was denied. Next, he filed a petition assailing the composition of the board of canvassers. Despite that petition, the board of canvassers proclaimed the winning candidates. Later on, petitioner filed a petition to declare a failure of election alleging that the attendant facts would justify declaration of such failure. On review, we ruled that petitioner s first two actions involved pre-proclamation controversies which can no longer be entertained after the winning candidates have been proclaimed. Regarding the petition to declare a failure of election, we held that the destruction and loss of copies of election returns intended

for the municipal board of canvassers on account of violence is not one of the causes that would warrant the declaration of failure of election. The reason is that voting actually took place as scheduled and other valid election returns still existed. Moreover, the destruction or loss did not affect the result of the election. We also declared that there is failure of elections only when the will of the electorate has been muted and cannot be ascertained. If the will of the people is determinable, the same must as far as possible be respected. Xxx In Loong v. COMELEC (257 SCRA 1 [1996]), the petition for annulment of election results or to declare failure of elections in Parang, Sulu, on the ground of statistical improbability and massive fraud was granted by the COMELEC. Even before the technical examination of election documents was conducted, the Comelec already observed badges of fraud just by looking at the election results in Parang. Nevertheless, the Comelec dismissed the petition for annulment of election results or to declare failure of elections in the municipalities of Tapul, Panglima Estino, Pata, Siasi and Kalinggalang Calauag. The COMELEC dismissed the latter action on ground of untimeliness of the petition, despite a finding that the same badges of fraud evident from the results of the election based on the certificates of canvass of votes in Parang, are also evident in the election results of the five mentioned municipalities. We ruled that Comelec committed grave abuse of discretion in dismissing the petition as there is no law which provides for a reglementary period to file annulment of elections when there is yet no proclamation. The election resulted in a failure to elect on account of fraud. Accordingly, we ordered the Comelec to reinstate the aforesaid petition. Those circumstances, however, are not present in this case, so that reliance on Loong by petitioner Banaga is misplaced. (Banaga, Jr. v. COMELEC, 336 SCRA 701, July 31, 2000, En Banc [Quisumbing]) 316. What acts of a Division of the COMELEC may be subject of a motion for reconsideration of the COMELEC en banc? Held: Section 5, Rule 19 of the COMELEC Rules of Procedure, provides: SEC. 5. How Motion for Reconsideration Disposed of. - Upon the filing of a motion to reconsider a decision, resolution, order or ruling of a Division, the Clerk of Court concerned shall, within twenty-four (24) hours from the filing thereof, notify the presiding Commissioner. The latter shall within two (2) days thereafter certify the case to the Commission en banc. Under the above-quoted rule, the acts of a Division that are subject of a motion for reconsideration must have a character of finality before the same can be elevated to the COMELEC en banc. The elementary rule is that an order is final in nature if it completely disposes of the entire case. But if there is something more to be done in the case after its issuance, that order is interlocutory. As correctly pointed out by public respondent in its assailed order of November 29, 1999, the October 11, 1999 did not dispose of the case completely as there is something more to be done which is to decide the election protest. As such, it is the herein public respondent (Second Division of the COMELEC) which issued the interlocutory order of October 11, 1999 that should resolve petitioner s motion for reconsideration, not the COMELEC en banc (Bulaong v. COMELEC, First Division, 220 SCRA 745, 749 [1993]). Accordingly, the applicable rule on the subject is Section 5(c), Rule 3 of the COMELEC Rules of Procedure, which states: Rule 3, Section 5(c). Any motion to reconsider a decision, resolution, order or ruling of a Division shall be resolved by the Commission en banc except motions on interlocutory orders of the division, which shall be resolved by the divisions which issued the order.

That only final orders of a Division may be raised before the COMELEC en banc is in accordance with Article IX-C, Section 3 of the Constitution which mandates that only motions for reconsideration of final decisions shall be decided by the Commission on Elections en banc, thus: Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. It bears stressing that under this constitutional provision, the COMELEC en banc shall decide motions for reconsideration only of decisions of a Division, meaning those acts of final character. Clearly, the assailed order denying petitioner's demurrer to evidence, being interlocutory, may not, be resolved by the COMELEC en banc (Ambil, Jr. v. Commission on elections, G.R. No. 143398, Oct. 25, 2000, 344 SCRA 358). (Gementiza v. Commission on Elections, 353 SCRA 724, March 6, 2001, En Banc [Sandoval-Gutierrez]) 317. Is a petition to declare failure of election different from a petition to annul the election results?

Held: A prayer to declare failure of elections and a prayer to annul the election results x x x are actually of the same nature. Whether an action is for declaration of failure of elections or for annulment of election results, based on allegations of fraud, terrorism, violence or analogous, the Omnibus Election Code denominates them similarly. (Banaga, Jr. v. COMELEC, 336 SCRA 701, July 31, 2000, En Banc [Quisumbing]) 318. What conditions must concur before the Comelec can act on a verified petition seeking to declare a failure of election? Is low turn-out of voters enough basis to grant the petition? Held: Before COMELEC can act on a verified petition seeking to declare a failure of election, two (2) conditions must concur: first, no voting has taken place in the precinct or precincts on the date fixed by law or, even if there was voting, the election nevertheless results in failure to elect; and, second, the votes not cast would affect the result of the election. There can be failure of election in a political unit only if the will of the majority has been defiled and cannot be ascertained. But, if it can be determined, it must be accorded respect. After all, there is no provision in our election laws which requires that a majority of registered voters must cast their votes. All the law requires is that a winning candidate must be elected by a plurality of valid votes, regardless of the actual number of ballots cast. Thus, even if less than 25% of the electorate in the questioned precincts cast their votes, the same must still be respected. (Mitmug v. COMELEC, 230 SCRA 54, Feb. 10, 1994, En Banc [Bellosillo]) 319. Distinguish a petition to declare failure of elections from an election protest.

Held: While petitioner may have intended to institute an election protest by praying that said action may also be considered an election protest, in our view, petitioner s action is a petition to declare a failure of elections or annul election results. It is not an election protest. First, his petition before the Comelec was instituted pursuant to Section 4 of Republic Act No. 7166 in relation to Section 6 of the Omnibus Election Code. Section 4 of RA 7166 refers to postponement, failure of election and special elections while Section 6 of the Omnibus Election Code relates to failure of election. It is simply captioned as Petition to Declare Failure of Elections and/or For Annulment of Elections.

Second, an election protest is an ordinary action while a petition to declare a failure of elections is a special action under the 1993 Comelec Rules of Procedure as amended. An election protest is governed by Rule 20 on ordinary actions, while a petition to declare failure of elections is covered by Rule 26 under special actions. In this case, petitioner filed his petition as a special action and paid the corresponding fee therefor. Thus, the petition was docketed as SPA-98-383. This conforms to petitioner s categorization of his petition as one to declare a failure of elections or annul election results. In contrast, an election protest is assigned a docket number starting with EPC, meaning election protest case. Third, petitioner did not comply with the requirements for filing an election protest. He failed to pay the required filing fee and cash deposits for an election protest. Failure to pay filing fees will not vest the election tribunal jurisdiction over the case. Such procedural lapse on the part of a petitioner would clearly warrant the outright dismissal of his action. Fourth, an en banc decision of Comelec in an ordinary action becomes final and executory after thirty (30) days from its promulgation, while an en banc decision in a special action becomes final and executory after five (5) days from promulgation, unless restrained by the Supreme Court (Comelec Rules of Procedure, Rule 18, Section 13 [a], [b]). For that reason, a petition cannot be treated as both an election protest and a petition to declare failure of elections. Fifth, the allegations in the petition decisively determine its nature. Petitioner alleged that the local elections for the office of vice-mayor in Paranaque City held on May 11, 1998, denigrates the true will of the people as it was marred with widespread anomalies on account of vote buying, flying voters and glaring discrepancies in the election returns. He averred that those incidents warrant the declaration of a failure of elections. Given these circumstances, public respondent cannot be said to have gravely erred in treating petitioner s action as a petition to declare failure of elections or to annul election results. (Banaga, Jr. v. COMELEC, 336 SCRA 701, July 31, 2000, En Banc [Quisumbing]) 320. What are pre-proclamation cases, and exceptions thereto? What Court has jurisdiction over preproclamation cases? Held: As a general rule, candidates and registered political parties involved in an election are allowed to file pre-proclamation cases before the Comelec. Pre-proclamation cases refer to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of election returns (Section 241, Omnibus Election Code). The Comelec has exclusive jurisdiction over all pre-proclamation controversies (Section 242, supra). As an exception, however, to the general rule, Section 15 of Republic Act 7166 prohibits candidates in the presidential, vice-presidential, senatorial and congressional elections from filing pre-proclamation cases. It states: Sec. 15. Pre-Proclamation Cases Not Allowed in Elections for President, Vice-President, Senator, and Members of the House of Representatives. - For purposes of the elections for President, Vice-President, Senator and Member of the House of Representatives, no pre-proclamation cases shall be allowed on matters relating to the preparation, transmission, receipt, custody and appreciation of election returns or the certificates of canvass, as the case may be. However, this does not preclude the authority of the appropriate canvassing body motu proprio or upon written complaint of an interested person to correct manifest errors in the certificate of canvass or election returns before it.

The prohibition aims to avoid delay in the proclamation of the winner in the election, which delay might result in a vacuum in these sensitive posts. The law, nonetheless, provides an exception to the exception. The second sentence of Section 15 allows the filing of petitions for correction of manifest errors in the certificate of canvass or election returns even in elections for president, vice-president and members of the House of Representatives for the simple reason that the correction of manifest error will not prolong the process of canvassing nor delay the proclamation of the winner in the election. The rule is consistent with and complements the authority of the Comelec under the Constitution to "enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall" (Section 2[1], Article IX-C, 1987 Constitution) and its power to "decide, except those involving the right to vote, all questions affecting elections." (Section 2[3], Article IX-C, supra) (Federico S. Sandoval v. COMELEC, G.R. No. 133842, Jan. 26, 2000 [Puno]) 321. Who has authority to rule on petitions for correction of manifest error in the certificate of canvass or election returns? Held: The authority to rule on petitions for correction of manifest error is vested in the Comelec en banc. Section 7 of Rule 27 of the 1993 COMELEC Rules of Procedure (took effect on February 15, 1993) provides that if the error is discovered before proclamation, the board of canvassers may motu proprio, or upon verified petition by any candidate, political party, organization or coalition of political parties, after due notice and hearing, correct the errors committed. The aggrieved party may appeal the decision of the board to the Commission and said appeal shall be heard and decided by the Commission en banc. Section 5, however, of the same rule states that a petition for correction of manifest error may be filed directly with the Commission en banc provided that such errors could not have been discovered during the canvassing despite the exercise of due diligence and proclamation of the winning candidate had already been made. (Federico S. Sandoval v. COMELEC, G.R. No. 133842, Jan. 26, 2000 [Puno]) 322. Distinguish Election Protest from Petition for Quo Warranto.

Held: In Samad v. COMELEC, we explained that a petition for quo warranto under the Omnibus Election Code raises in issue the disloyalty or ineligibility of the winning candidate. It is a proceeding to unseat the respondent from office but not necessarily to install the petitioner in his place. An election protest is a contest between the defeated and winning candidates on the ground of frauds or irregularities in the casting and counting of the ballots, or in the preparation of the returns. It raises the question of who actually obtained the plurality of the legal votes and therefore is entitled to hold the office. (Dumayas, Jr. v. COMELEC, G.R. Nos. 141952-53, April 20, 2001, En Banc [Quisumbing]) 323. What is a counter-protest? When should it be filed?

Held: Under the Comelec Rules of Procedure, the protestee may incorporate in his answer a counterprotest. It has been said that a counter-protest is tantamount to a counterclaim in a civil action and may be presented as a part of the answer within the time he is required to answer the protest, i.e., within five (5) days upon receipt of the protest, unless a motion for extension is granted, in which case it must be filed before the expiration of the extended time. As early as in the case of Arrieta v. Rodriguez (57 Phil. 717), the SC had firmly settled the rule that the counter-protest must be filed within the period provided by law, otherwise, the forum loses its jurisdiction to entertain the belatedly filed counter-protest. (Kho v. COMELEC, 279 SCRA 463, Sept. 25, 1997, En Banc [Torres]) 324. What is the effect of death of a party in an election protest? Should it warrant the dismissal of the protest?

Held: An election protest involves both the private interests of the rival candidates and the public interest in the final determination of the real choice of the electorate, and for this reason, an election contest necessarily survives the death of the protestant or the protestee. It is true that a public office is personal to the public officer and is not a property transmissible to his heirs upon death, thus, upon the death of the incumbent, no heir of his may be allowed to continue holding his office in his place. But while the right to a public office is personal and exclusive to the public officer, an election protest is not purely personal and exclusive to the protestant or to the protestee such that after the death of either would oust the court of all authority to continue the protest proceedings. An election contest, after all, involves not merely conflicting private aspirations but is imbued with paramount public interests. The death of the protestant neither constitutes a ground for the dismissal of the contest nor ousts the trial court of its jurisdiction to decide the election contest. (De Castro v. COMELEC, 267 SCRA 806, Feb. 7, 1997) 325. Does the fact that one or a few candidates in an election got zero votes in one or a few precincts adequately support a finding that the election returns are statistically improbable? Held: From experiences in past elections, it is possible for one candidate or even a few candidates to get zero votes in one or a few precincts. Standing alone and without more, the bare fact that a candidate for public office received zero votes in one or two precincts can not adequately support a finding that the subject election returns are statistically improbable. A no-vote for a particular candidate in election returns is but one strand in the web of circumstantial evidence that those election returns were prepared under duress, force and intimidation. In the case of Una Kibad v. Comelec (23 SCRA 588 [1968]), the SC warned that the doctrine of statistical improbability must be viewed restrictively, the utmost care being taken lest in penalizing the fraudulent and corrupt practices, innocent voters become disenfranchised, a result which hardly commends itself. Moreover, the doctrine of statistical improbability involves a question of fact and a more prudential approach prohibits its determination ex parte. (Arthur V. Velayo v. COMELEC, G.R. No. 135613, March 9, 2000, En Banc [Puno]) 326. What Court has jurisdiction over election protests and quo warranto proceedings involving Sangguniang Kabataan (SK) elections? Held: Any contest relating to the election of members of the Sangguniang Kabataan (including the chairman) whether pertaining to their eligibility or the manner of their election is cognizable by MTCs, MCTCs, and MeTCs. Section 6 of Comelec Resolution No. 2824 which provides that cases involving the eligibility or qualification of SK candidates shall be decided by the City/Municipal Election Officer whose decision shall be final, applies only to proceedings before the election. Before proclamation, cases concerning eligibility of SK officers and members are cognizable by the Election Officer. But after the election and proclamation, the same cases become quo warranto cases cognizable by MTCs, MCTCs, and MeTCs. The distinction is based on the principle that it is the proclamation which marks off the jurisdiction of the courts from the jurisdiction of election officials. The case of Jose M. Mercado v. Board of Election Supervisors (243 SCRA 423, G.R. No. 109713, April 6, 1995), in which this Court ruled that election protests involving SK elections are to be determined by the Board of Election Supervisors was decided under the aegis of Comelec Resolution No. 2499, which took effect on August 27, 1992. However, Comelec Resolution No. 2824, which took effect on February 6, 1996 and was passed pursuant to R.A. 7808, in relation to Arts. 252-253 of the Omnibus Election Code, has since transferred the cognizance of such cases from the Board of Election Supervisors to the MTCs, MCTCs and MeTCs. Thus, the doctrine of Mercado is no longer controlling. (Francis King L. Marquez v. COMELEC, G.R. No. 127318, Aug. 25, 1999, En Banc [Purisima])

327. What acts of a Division of the COMELEC may be subject of a motion for reconsideration of the COMELEC en banc? Held: Section 5, Rule 19 of the COMELEC Rules of Procedure, provides: SEC. 5. How Motion for Reconsideration Disposed of. - Upon the filing of a motion to reconsider a decision, resolution, order or ruling of a Division, the Clerk of Court concerned shall, within twenty-four (24) hours from the filing thereof, notify the presiding Commissioner. The latter shall within two (2) days thereafter certify the case to the Commission en banc. Under the above-quoted rule, the acts of a Division that are subject of a motion for reconsideration must have a character of finality before the same can be elevated to the COMELEC en banc. The elementary rule is that an order is final in nature if it completely disposes of the entire case. But if there is something more to be done in the case after its issuance, that order is interlocutory. As correctly pointed out by public respondent in its assailed order of November 29, 1999, the October 11, 1999 did not dispose of the case completely as there is something more to be done which is to decide the election protest. As such, it is the herein public respondent (Second Division of the COMELEC) which issued the interlocutory order of October 11, 1999 that should resolve petitioner s motion for reconsideration, not the COMELEC en banc (Bulaong v. COMELEC, First Division, 220 SCRA 745, 749 [1993]). Accordingly, the applicable rule on the subject is Section 5(c), Rule 3 of the COMELEC Rules of Procedure, which states: Rule 3, Section 5(c). Any motion to reconsider a decision, resolution, order or ruling of a Division shall be resolved by the Commission en banc except motions on interlocutory orders of the division, which shall be resolved by the divisions which issued the order. That only final orders of a Division may be raised before the COMELEC en banc is in accordance with Article IX-C, Section 3 of the Constitution which mandates that only motions for reconsideration of final decisions shall be decided by the Commission on Elections en banc, thus: Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. It bears stressing that under this constitutional provision, the COMELEC en banc shall decide motions for reconsideration only of decisions of a Division, meaning those acts of final character. Clearly, the assailed order denying petitioner's demurrer to evidence, being interlocutory, may not, be resolved by the COMELEC en banc (Ambil, Jr. v. Commission on elections, G.R. No. 143398, Oct. 25, 2000, 344 SCRA 358). (Gementiza v. Commission on Elections, 353 SCRA 724, March 6, 2001, En Banc [Sandoval-Gutierrez])

THE LAW OF PUBLIC CORPORATIONS 328. What is an autonomous region?

Answer: An autonomous region consists of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other

relevant characteristics within the framework of the Constitution and the national sovereignty as well as the territorial integrity of the Republic of the Philippines. (Sec. 15, Art. X, 1987 Constitution) 329. What are administrative regions? Are they considered territorial and political subdivisions of the State? Who has the power to create administrative regions? Held: Administrative regions are mere groupings of contiguous provinces for administrative purposes. They are not territorial and political subdivisions like provinces, cities, municipalities and barangays. While the power to merge administrative regions is not expressly provided for in the Constitution, it is a power which has traditionally been lodged with the President to facilitate the exercise of the power of general supervision over local governments. (Abbas v. COMELEC, 179 SCRA 287, Nov. 10, 1989, En Banc [Cortes]) 329. Is there a conflict between the power of the President to merge administrative regions with the constitutional provision requiring a plebiscite in the merger of local government units? Held: There is no conflict between the power of the President to merge administrative regions with the constitutional provision requiring a plebiscite in the merger of local government units because the requirement of a plebiscite in a merger expressly applies only to provinces, cities, municipalities or barangays, not to administrative regions. (Abbas v. COMELEC, 179 SCRA 287, Nov. 10, 1989, En Banc [Cortes]) 330. What is the Metropolitan Manila Development Authority (MMDA)? Is it a local government unit or public corporation endowed with legislative power? May it validly exercise police power? How is it distinguished from the former Metro Manila Council (MMC) created under PD No. 824? Held: Metropolitan or Metro Manila is a body composed of several local government units i.e., twelve (12) cities and five (5) municipalities x x x. With the passage of Republic Act No. 7924 in 1995, Metropolitan Manila was declared as a special development and administrative region and the Administration of metrowide basic services affecting the region placed under a development authority referred to as the MMDA. The governing board of the MMDA is the Metro Manila Council. The Council is composed of the mayors of the component 12 cities and 5 municipalities, the president of the Metro Manila Vice-Mayors League and the president of the Metro Manila Councilors League. The Council is headed by a Chairman who is appointed by the President and vested with the rank of cabinet member. As the policy-making body of the MMDA, the Metro Manila Council approves metro-wide plans, programs and projects, and issues the necessary rules and regulations for the implementation of said plans; it approves the annual budget of the MMDA and promulgates the rules and regulations for the delivery of basic services, collection of service and regulatory fees, fines and penalties. X x x Clearly, the scope of the MMDA s function is limited to the delivery of the seven (7) basic services. One of these is transport and traffic management x x x. It will be noted that the powers of the MMDA are limited to the following acts: formulation, coordination, regulation, implementation, preparation, management, monitoring, setting of policies, installation of a system and administration. There is no syllable in R.A. No. 7924 that grants the MMDA police power, let alone legislative power. Even the Metro Manila Council has not been delegated any legislative power. Unlike the legislative bodies of the local government units, there is no provision in R.A. No. 7924 that empowers the MMDA or its Council to enact ordinances, approve resolutions and appropriate funds for the general welfare of the inhabitants of Metro Manila. The MMDA is x x x a development authority. It is an agency created for the purpose of laying down policies and coordinating with the various national government agencies, people s organizations, non-governmental organizations and the private sector for

the efficient and expeditious delivery of basic services in the vast metropolitan area. All its functions are administrative in nature and these are actually summed up in the charter itself x x x. Secondly, the MMDA is not the same entity as the MMC in Sangalang. Although the MMC is the forerunner of the present MMDA, an examination of Presidential Decree No. 824, the charter of the MMC, shows that the latter possessed greater powers which were not bestowed on the present MMDA. Metropolitan Manila was first created in 1975 by Presidential Decree No. 824. It comprised the Greater Manila Area composed of the contiguous four (4) cities of Manila, Quezon, Pasay and Caloocan, and the thirteen (13) municipalities x x x. Metropolitan Manila was created as a response to the finding that the rapid growth of population and the increase of social and economic requirements in these areas demand a call for simultaneous and unified development; that the public services rendered by the respective local governments could be administered more efficiently and economically if integrated under a system of central planning; and this coordination, especially in the maintenance of peace and order and the eradication of social and economic ills that fanned the flames of rebellion and discontent [were] part of the reform measures under Martial Law essential to the safety and security of the State. Metropolitan Manila was established as a public corporation x x x. The administration of Metropolitan Manila was placed under the Metro Manila Commission (MMC) x x x. The MMC was the central government of Metro Manila for the purpose of establishing and administering programs providing services common to the area. As a central government it had the power to levy and collect taxes and special assessments, the power to charge and collect fees; the power to appropriate money for its operation, and at the same time, review appropriations for the city and municipal units within its jurisdiction. It was bestowed the power to enact or approve ordinances, resolutions and fix penalties for violation of such ordinances and resolutions. It also had the power to review, amend, revise or repeal all ordinances, resolutions and acts of any of the x x x cities and x x x municipalities comprising Metro Manila. Xxx The creation of the MMC also carried with it the creation of the Sangguniang Bayan. This was composed of the members of the component city and municipal councils, barangay captains chosen by the MMC and sectoral representatives appointed by the President. The Sangguniang Bayan had the power to recommend to the MMC the adoption of ordinances, resolutions or measures. It was the MMC itself, however, that possessed legislative powers. All ordinances, resolutions and measures recommended by the Sangguniang Bayan were subject to the MMC s approval. Moreover, the power to impose taxes and other levies, the power to appropriate money, and the power to pass ordinances or resolutions with penal sanctions were vested exclusively in the MMC. Thus, Metropolitan Manila had a central government, i.e., the MMC which fully possessed legislative and police powers. Whatever legislative powers the component cities and municipalities had were all subject to review and approval by the MMC. After President Corazon Aquino assumed power, there was a clamor to restore the autonomy of the local government units in Metro Manila. Hence, Sections 1 and 2 of Article X of the 1987 Constitution x x x. The Constitution, however, recognized the necessity of creating metropolitan regions not only in the existing National Capital Region but also in potential equivalents in the Visayas and Mindanao. X x x The Constitution itself expressly provides that Congress may, by law, create special metropolitan political subdivisions which shall be subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected; the jurisdiction of this subdivision shall be limited to basic services

requiring coordination; and the cities and municipalities comprising this subdivision shall retain their basic autonomy and their own local executive and legislative assemblies (Section 11, Article X, 1987 Constitution). Pending enactment of this law, the Transitory Provisions of the Constitution gave the President of the Philippines the power to constitute the Metropolitan Authority x x x. In 1990, President Aquino issued Executive Order No. 392 and constituted the Metropolitan Manila Authority (MMA). The powers and functions of the MMC were devolved to the MMA. It ought to be stressed, however, that not all powers and functions of the MMC were passed to the MMA. The MMA s power was limited to the delivery of basic urban services requiring coordination in Metropolitan Manila. The MMA s governing body, the Metropolitan Manila Council, although composed of the mayors of the component cities and municipalities, was merely given the power of: (1) formulation of policies on the delivery of basic services requiring coordination and consolidation; and (2) promulgation of resolutions and other issuances, approval of a code of basic services and the exercise of its rule-making power. Under the 1987 Constitution, the local government units became primarily responsible for the governance of their respective political subdivisions. The MMA s jurisdiction was limited to addressing common problems involving basic services that transcended local boundaries. It did not have legislative power. Its power was merely to provide the local government units technical assistance in the preparation of local development plans. Any semblance of legislative power it had was confined to a review [of] legislation proposed by the local legislative assemblies to ensure consistency among local governments and with the comprehensive development plan of Metro Manila, and to advise the local governments accordingly. When R.A. No. 7924 took effect, Metropolitan Manila became a special development and administrative region and the MMDA a special development authority whose functions were without prejudice to the autonomy of the affected local government units. The character of the MMDA was clearly defined in the legislative debates enacting its charter. Xxx Clearly, the MMDA is not a political unit of government. The power delegated to the MMDA is that given to the Metro Manila Council to promulgate administrative rules and regulations in the implementation of the MMDA s functions. There is no grant of authority to enact ordinances and regulations for the general welfare of the inhabitants of the metropolis. This was explicitly stated in the last Committee deliberations prior to the bill s presentation to Congress. X x x It is thus beyond doubt that the MMDA is not a local government unit or a public corporation endowed with legislative power. It is not even a special metropolitan political subdivision as contemplated in Section 11, Article X of the Constitution. The creation of a special metropolitan political subdivision requires the approval by a majority of the votes cast in a plebiscite in the political units directly affected. R.A. No. 7924 was not submitted to the inhabitants of Metro Manila in a plebiscite. The Chairman of the MMDA is not an official elected by the people, but appointed by the President with the rank and privileges of a cabinet member. In fact, part of his function is to perform such other duties as may be assigned to him by the President, whereas in local government units, the President merely exercises supervisory authority. This emphasizes the administrative character of the MMDA. Clearly then, the MMC under P.D. No. 824 is not the same entity as the MMDA under R.A. No. 7924. Unlike the MMC, the MMDA has no power to enact ordinances for the welfare of the community. It is the local government units, acting through their respective legislative councils, that possess legislative power and police power. In the case at bar, the Sangguniang Panlungsod of Makati City did not pass any ordinance or resolution ordering the opening of Neptune Street, hence, its proposed opening by petitioner MMDA is illegal x x x. (MMDA v. Bel-Air Village Association, Inc., 328 SCRA 836, March 27, 2000, 1st Div. [Puno])

331.

Discuss the concept of local autonomy.

Held: Autonomy is either decentralization of administration or decentralization of power. There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government and in the process to make local governments more responsive and accountable, and ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress. At the same time, it relieves the central government of the burden of managing local affairs and enables it to concentrate on national concerns. The President exercises general supervision over them, but only to ensure that local affairs are administered according to law. He has no control over their acts in the sense that he can substitute their judgments with his own. Decentralization of power, on the other hand, involves an abdication of political power in favor of local government units declared autonomous. In that case, the autonomous government is free to chart its own destiny and shape its own future with minimum intervention from central authorities. According to a constitutional author, decentralization of power amounts to self-immolation, since in that event, the autonomous government becomes accountable not to the central authorities but to its constituency. (Limbona v. Mangelin, 170 SCRA 786, Feb. 28, 1989, En Banc [Sarmiento]) 332. What kind of local autonomy is contemplated by the Constitution? autonomy contemplated insofar as the autonomous regions are concerned? What about the kind of

Held: 1. The principle of local autonomy under the 1987 Constitution simply means decentralization. It does not make local governments sovereign within the state or an imperium in imperio. Remaining to be an intra sovereign subdivision of one sovereign nation, but not intended, however, to be an imperium in imperio, the local government unit is autonomous in the sense that it is given more powers, authority, responsibilities and resources. Power which used to be highly centralized in Manila, is thereby deconcentrated, enabling especially the peripheral local government units to develop not only at their own pace and discretion but also with their own resources and assets. (Alvarez v. Guingona, Jr., 252 SCRA 695, Jan. 31, 1996, En Banc [Hermosisima]) 2. The constitutional guarantee of local autonomy in the Constitution refers to the administrative autonomy of local government units or, cast in more technical language, the decentralization of government authority. On the other hand, the creation of autonomous regions in Muslim Mindanao and the Cordilleras, which is peculiar to the 1987 Constitution, contemplates the grant of political autonomy and not just administrative autonomy to these regions. Thus, the provision in the Constitution for an autonomous regional government with a basic structure consisting of an executive department and a legislative assembly and special courts with personal, family and property law jurisdiction in each of the autonomous regions. (Cordillera Broad Coalition v. COA, 181 SCRA 495, Jan. 29, 1990, En Banc [Cortes]) 333. Whether or not the Internal Revenue allotments (IRAs) are to be included in the computation of the average annual income of a municipality for purposes of its conversion into an independent component city? Held: Yes. The IRAs are items of income because they form part of the gross accretion of the funds of the local government unit. The IRAs regularly and automatically accrue to the local treasury without need of any further action on the part of the local government unit. They thus constitute income which the local government can invariably rely upon as the source of much needed funds.

Xxx [T]o reiterate, IRAs are a regular, recurring item of income; nil is there a basis, too, to classify the same as a special fund or transfer, since IRAs have a technical definition and meaning all its own as used in the Local Government Code that unequivocally makes it distinct from special funds or transfers referred to when the Code speaks of funding support from the national government, its instrumentalities and government-owned or controlled corporations. Thus, Department of Finance Order No. 35-93 correctly encapsulizes the full import of the above disquisition when it defined ANNUAL INCOME to be revenues and receipts realized by provinces, cities and municipalities from regular sources of the Local General Fund including the internal revenue allotment and other shares provided for in Sections 284, 290 and 291 of the Code, but exclusive of nonrecurring receipts, such as other national aids, grants, financial assistance, loan proceeds, sales of fixed assets, and similar others . Such order, constituting executive or contemporaneous construction of a statute by an administrative agency charged with the task of interpreting and applying the same, is entitled to full respect and should be accorded great weight by the courts, unless such construction is clearly shown to be in sharp conflict with the Constitution, the governing statute, or other laws. (Alvarez v. Guingona, Jr., 252 SCRA 695, Jan. 31, 1996, En Banc [Hermosisima, Jr., J.]) 334. State the importance of drawing with precise strokes the territorial boundaries of a local government unit. Held: The importance of drawing with precise strokes the territorial boundaries of a local unit of government cannot be overemphasized. The boundaries must be clear for they define the limits of the territorial jurisdiction of a local government unit. It can legitimately exercise powers of government only within the limits of its territorial jurisdiction. Beyond these limits, its acts are ultra vires. Needless to state, any uncertainty in the boundaries of local government units will sow costly conflicts in the exercise of governmental powers which ultimately will prejudice the people s welfare. This is the evil sought to be avoided by the Local Government Code in requiring that the land area of a local government unit must be spelled out in metes and bounds, with technical descriptions. (Mariano, Jr. v. COMELEC, 242 SCRA 211, 217-219, Mar. 7, 1995, En Banc [Puno]) 335. R.A. 7854 was enacted converting the Municipality of Makati into a highly urbanized city. Section 2 thereof did not provide for a cadastral type of description of its boundary but merely provided that the boundary of the new city of Makati shall be the boundary of the present municipality of Makati. Petitioners contended in a petition brought the SC that R.A. 7854 was defective because it did not comply with the requirement in the Local Government Code that the territorial jurisdiction of newly created or converted cities should be described by metes and bounds, with technical descriptions. Note that at the time the law was enacted, there was a pending boundary dispute between Makati and one of its neighbors, Taguig, before the regular court. Should the contention be upheld? Held: Given the facts of the cases at bench, we cannot perceive how this evil (uncertainty in the boundaries of local government units will sow costly conflicts in the exercise of government powers which ultimately will prejudice the people s welfare) can be brought about by the description made in Section 2 of R.A. No. 7854. Petitioners have not demonstrated that the delineation of the land area of the proposed City of Makati will cause confusion as to its boundaries. We note that said delineation did not change even by an inch the land area previously covered by Makati as a municipality. Section 2 did not add, subtract, divide, or multiply the established land area of Makati. In language that cannot be any clearer, Section 2 stated that the city s land area shall comprise the present territory of the municipality. The deliberations of Congress will reveal that there is a legitimate reason why the land area of the proposed City of Makati was not defined by metes and bounds, with technical descriptions. At the time of the consideration of R.A. No. 7854, the territorial dispute between the municipalities of Makati and

Taguig over Fort Bonifacio was under court litigation. Out of a becoming sense of respect to a co-equal department of government, the legislators felt that the dispute should be left to the courts to decide. They did not want to foreclose the dispute by making a legislative finding of fact which could decide the issue. This would have ensued if they defined the land area of the proposed city by its exact metes and bounds, with technical descriptions. We take judicial notice of the fact that Congress has also refrained from using the metes and bounds description of the land area of other local government units with unsettled boundary disputes. We hold that the existence of a boundary dispute does not per se present an insurmountable difficulty which will prevent Congress from defining with reasonable certitude the territorial jurisdiction of a local government unit. In the cases at bench, Congress maintained the existing boundaries of the proposed City of Makati but as an act of fairness, made them subject to the ultimate resolution by the courts. Considering these peculiar circumstances, we are not prepared to hold that Section 2 of R.A. No. 7854 is unconstitutional. We sustain the submission of the Solicitor General in this regard, viz: Going now to Sections 7 and 450 of the Local Government Code, it is beyond cavil that the requirement started therein, viz: the territorial jurisdiction of newly created or converted cities should be described by metes and bounds, with technical descriptions was made in order to provide a means by which the area of said cities may be reasonably ascertained. In other words, the requirement on metes and bounds was meant merely as a tool in the establishment of local government units. It is not an end in itself. Ergo, so long as the territorial jurisdiction of a city may be reasonably ascertained, i.e., by referring to common boundaries with neighboring municipalities, as in this case, then, it may be concluded that the legislative intent behind the law has been sufficiently served. Certainly, Congress did not intend that laws creating new cities must contain therein detailed technical descriptions similar to those appearing in Torrens titles, as petitioners seem to imply. To require such description in the law as a condition sine qua non for its validity would be to defeat the very purpose which the Local Government Code seeks to serve. The manifest intent of the Code is to empower local government units and to give them their rightful due. It seeks to make local governments more responsive to the needs of their constituents while at the same time serving as a vital cog in national development. To invalidate R.A. No. 7854 on the mere ground that no cadastral type of description was used in the law would serve the letter but defeat the spirit of the Code. It then becomes a case of the master serving the slave, instead of the other way around. This could not be the intendment of the law. Xxx (Mariano, Jr. v. COMELEC, 242 SCRA 211, 217-219, Mar. 7, 1995, En Banc [Puno]) 336. What is the meaning of "devolution"?

Answer: The term "devolution" refers to the act by which the National government confers power and authority upon the various local government units to perform specific functions and responsibilities. (Sec. 17[e], 2nd par., Local Government Code) 337. Have the powers of the Land Transportation Office (LTO) to register, tricycles in particular, as well as to issue licenses for the driving thereof, been devolved likewise to local government units? Held: Only the powers of the Land Transportation Franchising Regulatory Board (LTFRB) to regulate the operation of tricycles-for-hire and to grant franchises for the operation thereof have been devolved to local governments under the Local Government Code. Clearly unaffected by the Local Government Code are the powers of the LTO under R.A. No. 4136 requiring the registration of all kinds of motor vehicles used or operated on or upon any public highway in the country. This can be gleaned from the explicit language of the statute itself, as well as the corresponding guidelines issued by the DOTC. In fact, even the power of LGUs to regulate the operation of tricycles and to grant franchises for the operation thereof

is still subject to the guidelines prescribed by the DOTC. (LTO v. City of Butuan, G.R. No. 131512, Jan. 20, 2000, 3rd Div. [Vitug]) 338. Distinguish the power to grant a license or permit to do business and the power to issue a license to engage in the practice of a particular profession. Held: Distinction must be made between the grant of a license or permit to do business and the issuance of a license to engage in the practice of a particular profession. The first is usually granted by the local authorities and the second is issued by the Board or Commission tasked to regulate the particular profession. A business permit authorizes the person, natural or otherwise, to engage in business or some form of commercial activity. A professional license, on the other hand, is the grant of authority to a natural person to engage in the practice or exercise of his or her profession. In the case at bar, what is sought by petitioner (Acebedo Optical Company, Inc.) from respondent City Mayor is a permit to engage in the business of running an optical shop. It does not purport to seek a license to engage in the practice of optometry as a corporate body or entity, although it does have in its employ, persons who are duly licensed to practice optometry by the Board of Examiners in Optometry. Xxx In the present case, the objective of the imposition of subject conditions on petitioner s business permit could be attained by requiring the optometrists in petitioner s employ to produce a valid certificate of registration as optometrists, from the Board of Examiners in Optometry. A business permit is issued primarily to regulate the conduct of business and the City Mayor cannot, through the issuance of such permit, regulate the practice of a profession, like that of optometry. Such a function is within the exclusive domain of the administrative agency specifically empowered by law to supervise the profession, in this case the Professional Regulations Commission and the Board of Examiners in Optometry. (Acebedo Optical Company, Inc. v. CA, 329 SCRA 314, March 31, 2000, En Banc [Purisima]) 339. May a local government unit validly authorize an expropriation of private property through a mere resolution of its lawmaking body? Held: The Local Government Code expressly and clearly requires an ordinance or a local law for that purpose. A resolution that merely expresses the sentiment or opinion of the Municipal Council will not suffice. The case of Province of Camarines Sur v. Court of Appeals which held that a mere resolution may suffice to support the exercise of eminent domain by a local government unit is not in point because the applicable law at that time was B.P. 337, the previous Local Government Code, which had provided that a mere resolution would enable an LGU to exercise eminent domain. In contrast, R.A. 7160, the present Local Government Code, explicitly required an ordinance for this purpose. (Municipality of Paranaque v. V.M. Realty Corp., 292 SCRA 678, July 20, 1998 [Panganiban]) 340. What are the requisites before a Local Government Unit can validly exercise the power of eminent domain? Held: 1) An ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of the LGU, to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property; 2) The power of eminent domain is exercised for public use, purpose or welfare, or for the benefit of the poor and the landless; 3) There is payment of just compensation, as required under Section 9, Article III of the Constitution, and other pertinent laws;

4) A valid and definite offer has been previously made to the owner of the property sought to be expropriated, but said offer was not accepted. (Municipality of Paranaque v. V.M. Realty Corp., 292 SCRA 678, July 20, 1998 [Panganiban]) 341. May the Sangguniang Panlalawigan validly disapprove a resolution or ordinance of a municipality calling for the expropriation of private property to be made site of a Farmers Center and Other Government Sports Facilities on the ground that said expropriation is unnecessary considering that there are still available lots of the municipality for the establishment of a government center ? Held: Under the Local Government Code, the Sangguniang Panlalawigan is granted the power to declare a municipal resolution invalid on the sole ground that it is beyond the power of the Sangguniang Bayan or Mayor to issue. As held in Velazco v. Blas (G.R. No. L-30456, July 30, 1982, 115 SCRA 540, 544-545), The only ground upon which a provincial board may declare any municipal resolution, ordinance or order invalid is when such resolution, ordinance, or order is beyond the powers conferred upon the council or president making the same. A strictly legal question is before the provincial board in its consideration of a municipal resolution, ordinance, or order. The provincial board s disapproval of any resolution, ordinance, or order must be premised specifically upon the fact that such resolution, ordinance, or order is outside the scope of the legal powers conferred by law. If a provincial board passes these limits, it usurps the legislative functions of the municipal council or president. Such has been the consistent course of executive authority. (Moday v. CA, 268 SCRA 586, Feb. 20, 1997) 342. Under Section 8, Article X of the Constitution, "[T]he term of office of elective local officials x x x shall be three years and no such official shall serve for more than three consecutive terms." How is this term limit for elective local officials to be interpreted? Held: 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]) Case No. 1. Suppose A is a vice-mayor who becomes mayor by reason of the death of the incumbent. Six months before the next election, he resigns and is twice elected thereafter. Can he run again for mayor in the next election? Answer: Yes, because although he has already first served as mayor by succession and subsequently resigned from office before the full term expired, he has not actually served three full terms in all for the purpose of applying the term limit. Under Art. X, Sec. 8, voluntary renunciation of the office is not considered as an interruption in the continuity of his service for the full term only if the term is one for which he was elected. Since A is only completing the service of the term for which the deceased and not he was elected, A cannot be considered to have completed one term. His resignation constitutes an interruption of the full term. Case No. 2. Suppose B is elected Mayor and, during his first term, he is twice suspended for misconduct for a total of 1 year. If he is twice reelected after that, can he run for one more term in the next election? Answer: Yes, because he has served only two full terms successively. In both cases, the mayor is entitled to run for reelection because the two conditions for the application of the disqualification provisions have not concurred, namely, that the local official concerned has been elected three consecutive times and that he has fully served three consecutive terms. In the first case, even if the local official is considered to have served three full terms notwithstanding his resignation

before the end of the first term, the fact remains that he has not been elected three times. In the second case, the local official has been elected three consecutive times, but he has not fully served three consecutive terms. Case No. 3. The case of vice-mayor C who becomes mayor by succession involves a total failure of the two conditions to concur for the purpose of applying Art. X, Sec. 8. Suppose he is twice elected after that term, is he qualified to run again in the next election? Answer: Yes, because he was not elected to the office of mayor in the first term but simply found himself thrust into it by operation of law. Neither had he served the full term because he only continued the service, interrupted by the death, of the deceased mayor. (Borja, Jr. v. COMELEC and Capco, Jr., G.R. No. 133495, Sept. 3, 1998, 295 SCRA 157, En Banc [Mendoza]) 343. 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? Held: To prevent the establishment of political dynasties is not the only policy embodied in the constitutional provision in question (barring elective local officials, with the exception of barangay officials, from serving more than three consecutive terms). The other policy is that of enhancing the freedom of choice of the people. To consider, therefore, only stay in office regardless of how the official concerned came to that office whether by election or by succession by operation of law would be to disregard one of the purposes of the constitutional provision in question. (Borja, Jr. v. COMELEC and Capco, Jr., G.R. No. 133495, Sept. 3, 1998, 295 SCRA 157, En Banc [Mendoza]) 344. Lonzanida was previously elected and served two consecutive terms as mayor of San Antonio, Zambales prior to the May 1995 mayoral elections. In the May 1995 elections he again ran for mayor of San Antonio, Zambales and was proclaimed winner. He assumed office and discharged the rights and duties of mayor until March 1998 when he was ordered to vacate the post by reason of the COMELEC decision on the election protest against him which declared his opponent Juan Alvez the duly elected mayor. Alvez served the remaining portion of the 1995-1998 mayoral term. Is Lonzanida still qualified to run for mayor of San Antonio, Zambales in the May 1998 local elections? Held: The two requisites for the application of the three term rule was absent. First, Lonzanida cannot be considered as having been duly elected to the post in the May 1995 elections, and second, he did not fully serve the 1995-1998 mayoral term by reason of involuntary relinquishment of office. After a reappreciation and revision of the contested ballots the COMELEC itself declared by final judgment that Lonzanida lost in the May 1995 mayoral elections and his previous proclamation as winner was declared null and void. His assumption of office as mayor cannot be deemed to have been by reason of a valid election but by reason of a void proclamation. It has been repeatedly held by the SC that a proclamation subsequently declared void is no proclamation at all and while a proclaimed candidate may assume office on the strength of the proclamation of the Board of Canvassers he is only a presumptive winner who assumes office subject to the final outcome of the election protest. Lonzanida did not serve a term as mayor of San Antonio, Zambales from May 1995 to March 1998 because he was not duly elected to the post; he merely assumed office as presumptive winner, which presumption was later overturned by the COMELEC when it decided with finality that Lonzanida lost in the May 1995 mayoral elections. Second, Lonzanida cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate his post before the expiration of the term. His opponents' contention that Lonzanida should be deemed to have served one full term from May 1995-1998 because he served the greater portion of that term has no legal basis to support it; it disregards the second requisite for the application of the disqualification, i.e., that he has fully served three consecutive terms. The second sentence of the constitutional provision under scrutiny states, "Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he was

elected." The clear intent of the framers of the Constitution to bar any attempt to circumvent the threeterm limit by a voluntary renunciation of office and at the same time respect the people's choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. Lonzanida vacated his post a few months before the next mayoral elections, not by voluntary renunciation but in compliance with the legal process of writ of execution issued by the COMELEC to that effect. Such involuntary severance from office is an interruption of continuity of service and thus, Lonzanida did not fully serve the 1995-1998 mayoral term. In sum, Lonzanida was not the duly elected mayor and that he did not hold office for the full term; hence, his assumption of office from May 1995 to March 1998 cannot be counted as a term for purposes of computing the three term limit. (Lonzanida v. COMELEC, 311 SCRA 602, July 28, 1999, En Banc [Gonzaga-Reyes]) 345. May the President validly withhold a portion of the internal revenue allotments of Local Government Units legally due them by administrative fiat? Held: The Constitution vests the President with the power of supervision, not control, over local government units (LGUs). Such power enables him to see to it that LGUs and their officials execute their tasks in accordance with law. While he may issue advisories and seek their cooperation in solving economic difficulties, he cannot prevent them from performing their tasks and using available resources to achieve their goals. He may not withhold or alter any authority or power given them by the law. Thus, the withholding of a portion of internal revenue allotments legally due them cannot be directed by administrative fiat. Xxx Section 4 of AO 372 cannot x x x be upheld. A basic feature of local fiscal autonomy is the automatic release of the shares of LGUs in the National internal revenue. This is mandated by no less than the Constitution. The Local Government Code (Sec. 286[a]) specifies further that the release shall be made directly to the LGU concerned within five (5) days after every quarter of the year and shall not be subject to any lien or holdback that may be imposed by the national government for whatever purpose. As a rule, the term shall is a word of command that must be given a compulsory meaning. The provision is, therefore, imperative. Section 4 of AO 372, however, orders the withholding, effective January 1, 1998, of 10 percent of the LGUs IRA pending the assessment and evaluation by the Development Budget Coordinating Committee of the emerging fiscal situation in the country. Such withholding clearly contravenes the Constitution and the law. Although, temporary, it is equivalent to a holdback, which means something held back or withheld. Often temporarily. Hence, the temporary nature of the retention by the national government does not matter. Any retention is prohibited. In sum, while Section 1 of AO 372 may be upheld as an advisory effected in times of national crisis, Section 4 thereof has no color of validity at all. The latter provision effectively encroaches on the fiscal autonomy of local governments. Concededly, the President was well-intentioned in issuing his Order to withhold the LGUs IRA, but the rule of law requires that even the best intentions must be carried out within the parameters of the Constitution and the law. Verily, laudable purposes must be carried out by legal methods. (Pimentel, Jr. v. Aguirre, G.R. No. 132988, 336 SCRA 201, July 19, 2000, En Banc [Panganiban])

346. What is meant by fiscal autonomy of Local Governments? Does it rule out in any manner national government intervention by way of supervision in order to ensure that local programs are consistent with national goals? Held: Under existing law, local government units, in addition to having administrative autonomy in the exercise of their functions, enjoy fiscal autonomy as well. Fiscal autonomy means that local governments have the power to create their own sources of revenue in addition to their equitable share in the national taxes released by the national government, as well as the power to allocate their resources in accordance with their own priorities. It extends to the preparation of their budgets, and local officials in turn have to work within the constraints thereof. They are not formulated at the national level and imposed on local governments, whether they are relevant to local needs and resources or not. Hence, the necessity of a balancing of viewpoints and the harmonization of proposals from both local and national officials, who in any case are partners in the attainment of national goals. Local fiscal autonomy does not, however, rule out any manner of national government intervention by way of supervision, in order to ensure that local programs, fiscal and otherwise, are consistent with national goals. Significantly, the President, by constitutional fiat, is the head of the economic and planning agency of the government (Section 9, Article XII of the Constitution), primarily responsible for formulating and implementing continuing, coordinated and integrated social and economic policies, plans and programs (Section 3, Chapter 1, Subtitle C, Title II, Book V, EO 292 [Administrative Code of 1987]) for the entire country. However, under the Constitution, the formulation and the implementation of such policies and programs are subject to consultations with the appropriate public agencies, various private sectors, and local government units. The President cannot do so unilaterally. (Pimentel, Jr. v. Aguirre, 336 SCRA 201, July 19, 2000, En Banc [Panganiban]) 347. What are the requisites before the President may interfere in local fiscal matters?

Held: x x x [T]he Local Government Code provides (Sec. 284. See also Art. 379 of the Rules and Regulations Implementing the Local Government Code of 1991): x x x [I]n the event the national government incurs an unmanaged public sector deficit, the President of the Philippines is hereby authorized, upon the recommendation of [the] Secretary of Finance, Secretary of the Interior and Local Government and Secretary of Budget and Management, and subject to consultation with the presiding officers of both Houses of Congress and the presidents of the liga, to make the necessary adjustments in the internal revenue allotment of local government units but in no case shall the allotment be less than thirty percent (30%) of the collection of national internal revenue taxes of the third fiscal year preceding the current fiscal year x x x There are therefore several requisites before the President may interfere in local fiscal matters: (1) an unmanaged public sector deficit of the national government; (2) consultations with the presiding officers of the Senate and the House of Representatives and the presidents of the various local leagues; and (3) the corresponding recommendation of the secretaries of the Department of Finance, Interior and Local Government, and Budget and Management. Furthermore, any adjustment in the allotment shall in no case be less than thirty percent (30%) of the collection of national internal revenue taxes of the third fiscal year preceding the current one. (Pimentel, Jr. v. Aguirre, 336 SCRA 201, July 19, 2000, En Banc [Panganiban]) 348. Distinguish an ordinance from a mere resolution.

Held: A municipal ordinance is different from a resolution. An ordinance is a law, but a resolution is merely a declaration of the sentiment or opinion of a lawmaking body on a specific matter. An ordinance possesses a general and permanent character, but a resolution is temporary in nature. Additionally, the two are enacted differently a third reading is necessary for an ordinance, but not for a resolution,

unless decided otherwise by a majority of all the Sanggunian members. (Municipality of Paranaque v. V.M. Realty Corporation, 292 SCRA 678, July 20, 1998 [Panganiban]) 349. On its first regular session, may the Sanggunian transact business other than the matter of adopting or updating its existing rules or procedure? Held: We cannot infer the mandate of the (Local Government) Code that no other business may be transacted on the first regular session except to take up the matter of adopting or updating rules. All that the law requires is that on the first regular session x x x the sanggunian concerned shall adopt or update its existing rules or procedures. There is nothing in the language thereof that restricts the matters to be taken up during the first regular session merely to the adoption or updating of the house rules. If it were the intent of Congress to limit the business of the local council to such matters, then it would have done so in clear and unequivocal terms. But as it is, there is no such intent. Moreover, adopting or updating of house rules would necessarily entail work beyond the day of the first regular session. Does this mean that prior thereto, the local council's hands were tied and could not act on any other matter? That would certainly be absurd for it would result in a hiatus and a paralysis in the local legislature's work which could not have been intended by the law. (Malonzo v. Zamora, 311 SCRA 224, July 27, 1999, En Banc [Romero]) 350. May an incumbent Vice-Governor, while concurrently the Acting Governor, continue to preside over the sessions of the Sangguniang Panlalawigan (SP)? If no, who may preside in the meantime? Held: Being the acting governor, the Vice-governor cannot continue to simultaneously exercise the duties of the latter office, since the nature of the duties of the Provincial Governor calls for a full-time occupant to discharge them. Such is not only consistent with but also appears to be the clear rationale of the new (Local Government) Code wherein the policy of performing dual functions in both offices has already been abandoned. To repeat, the creation of a temporary vacancy in the office of the Governor creates a corresponding vacancy in the office of the Vice-Governor whenever the latter acts as Governor by virtue of such temporary vacancy. This event constitutes an inability on the part of the regular presiding officer (Vice-Governor) to preside during the SP sessions, which thus calls for the operation of the remedy set in Article 49(b) of the Local Government Code concerning the election of a temporary presiding officer. The continuity of the Acting Governor s (Vice-Governor) powers as presiding officer of the SP is suspended so long as he is in such capacity. Under Section 49(b), in the event of the inability of the regular presiding officer to preside at the sanggunian session, the members present and constituting a quorum shall elect from among themselves a temporary presiding officer. (Gamboa, Jr. v. Aguirre, Jr., G.R. No. 134213, July 20, 1999, En Banc [Ynares-Santiago]) 351. What is recall?

Held: Recall is a mode of removal of a public officer by the people before the end of his term of office. The people's prerogative to remove a public officer is an incident of their sovereign power and in the absence of constitutional restraint, the power is implied in all governmental operations. Such power has been held to be indispensable for the proper administration of public affairs. Not undeservedly, it is frequently described as a fundamental right of the people in a representative democracy. (Garcia v. COMELEC, 227 SCRA 108, Oct. 5, 1993, En Banc [Puno]) 352. What is the ground for recall? Is this subject to judicial inquiry?

Held: Former Senator Aquilino Pimentel, Jr., a major author of the subject law in his book The Local Government Code of 1991: The Key to National Development, stressed the same reason why the substantive content of a vote of lack of confidence is beyond any inquiry, thus:

There is only one ground for recall of local government officials: loss of confidence. This means that the people may petition or the Preparatory Recall Assembly may resolve to recall any local elective official without specifying any particular ground except loss of confidence. There is no need for them to bring up any charge of abuse or corruption against the local elective officials who are subject of any recall petition. In the case of Evardone v. Commission on Elections, et al., 204 SCRA 464, 472 (1991), the Court ruled that loss of confidence as a ground for recall is a political question. In the words of the Court, 'whether or not the electorate of the municipality of Sulat has lost confidence in the incumbent mayor is a political question. (Garcia v. COMELEC, 227 SCRA 108, Oct. 5, 1993, En Banc [Puno]) 353. The members of the Preparatory Recall Assembly (PRA) of the province of Bataan adopted a resolution calling for the recall of Governor Garcia. It was admitted, however, by the proponents of the recall resolution that only those members of the assembly inclined to agree were notified of the meeting where said resolution was adopted as a matter of strategy and security. They justified these selective notices on the ground that the law (Local Government Code) does not specifically mandate the giving of notice. Should this submission be sustained? Held: We reject this submission of the respondents. The due process clause of the Constitution requiring notice as an element of fairness is inviolable and should always be considered part and parcel of every law in case of its silence. The need for notice to all the members of the assembly is also imperative for these members represent the different sectors of the electorate of Bataan. To the extent that they are not notified of the meeting of the assembly, to that extent is the sovereign voice of the people they represent nullified. The resolution to recall should articulate the majority will of the members of the assembly but the majority will can be genuinely determined only after all the members of the assembly have been given a fair opportunity to express the will of their constituents. Needless to stress, the requirement of notice is mandatory for it is indispensable in determining the collective wisdom of the members of the Preparatory Recall Assembly. Its non-observance is fatal to the validity of the resolution to recall petitioner Garcia as Governor of the province of Bataan. (Garcia v. COMELEC, G.R. No. 111511, Sept. 21, 1993; 227 SCRA 100, Oct. 5, 1993, En Banc [Puno] 354. The members of the Preparatory Recall Assembly (PRA) of Puerto Princesa City met and adopted a resolution calling for the recall of incumbent Mayor Dennis Victorino M. Socrates on the ground of loss of confidence on July 2, 2002. Mayor Socrates argued that they have no authority to adopt said Recall Resolution because a majority of PRA members were seeking a new electoral mandate in the barangay elections scheduled on July 15, 2002. Should his contention be sustained? Held: This argument deserves scant consideration considering that when the PRA members adopted the Recall Resolution their terms of office had not yet expired. They were all de jure sangguniang barangay members with no legal disqualification to participate in the recall assembly under Section 70 of the Local Government Code. (Victorino Dennis M. Socrates v. The Commission on Elections, G.R. No. 154512, Nov. 12, 2002, En Banc [Carpio]) 355. Whether or not an elective official who became City Mayor by legal succession can be the subject of a recall election by virtue of a Preparatory Recall Assembly Resolution which was passed or adopted when the said elective official was still the Vice-Mayor. Held: The specific purpose of the Preparatory Recall Assembly was to remove Amelita S. Navarro as the elected Vice-Mayor of Santiago City since PRA Resolution No. 1 dated July 12, 1999 expressly states that x x x it is hereby resolved to invoke the rescission of the electoral mandate of the incumbent City Vice-Mayor Amelita S. Navarro for loss of confidence through a recall election to be set by the Commission on Election as provided for under Section 71 of the Local Government Code of 1991. However, the said PRA Resolution No. 1 is no longer applicable to her inasmuch as she had already

vacated the office of Vice-Mayor on October 11, 1999 when she assumed the position of City Mayor of Santiago City. Even if the Preparatory Recall Assembly were to reconvene to adopt another resolution for the recall of Amelita Navarro, this time as Mayor of Santiago City, the same would still not prosper in view of Section 74 (b) of the Local Government Code of 1991 which provides that No recall shall take place within one (1) year from the date of the official s assumption of office or one (1) year immediately preceding a regular election. There is no more allowable time in the light of that law within which to hold recall elections for that purpose. The then Vice-Mayor Amelita S. Navarro assumed office as Mayor of Santiago City on October 11, 1999. One year after her assumption of office as Mayor will be October 11, 2000 which is already within the one (1) year prohibited period immediately preceding the next regular election in May 2001. (Afiado v. Commission on Elections, 340 SCRA 600, Sept. 18, 2000, En Banc [De Leon] 356. Mayor Edward S. Hagedorn of Puerto Princesa City was elected for three consecutive times in the 1992, 1995 and 1998 elections and served in full his three consecutive terms as Mayor. In the 2001 elections, he ran for Governor of the Province of Palawan and lost. Socrates ran and won as Mayor of Puerto Princesa in that election. On July 2, 2002, the Preparatory Recall Assembly (PRA) of Puerto Princesa City adopted a Resolution calling for the recall of incumbent Mayor Socrates. The COMELEC scheduled a Special Recall Election for Mayor of that City on September 24, 2002. Is Mayor Hagedorn qualified to run again for Mayor in that Special Recall Election considering the circumstances? Held: The three-term limit rule for elective local officials is found in Section 8, Article X of the Constitution x x x. This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160, otherwise known as the Local Government Code x x x. These constitutional and statutory provisions have two parts. The first part provides that an elective local official cannot serve for more than three consecutive terms. The clear intent is that only consecutive terms count in determining the three-term limit rule. The second part states that voluntary renunciation of office for any length of time does not interrupt the continuity of service. The clear intent is that involuntary severance from office for any length of time interrupts continuity of service and prevents the service before and after the interruption from being joined together to form a continuous service or consecutive terms. After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. Any subsequent election, like a recall election, is no longer covered by the prohibition for two reasons. First, a subsequent election like a recall election is no longer an immediate reelection after three consecutive terms. Second, the intervening period constitutes an involuntary interruption in the continuity of service. Xxx Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following three consecutive terms. The Constitution, however, does not prohibit a subsequent reelection for a fourth term as long as the reelection is not immediately after the end of the third consecutive term. A recall election mid-way in the term following the third consecutive term is a subsequent election but not an immediate reelection after the third term. Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any other subsequent election involving the same term of office. What the Constitution prohibits is a

consecutive fourth term. The debates in the Constitutional Commission evidently show that the prohibited election referred to by the framers of the Constitution is the immediate reelection after the third term, not any other subsequent election. Xxx In the case of Hagedorn, his candidacy in the recall election on September 24, 2002 is not an immediate reelection after his third consecutive term which ended on June 30, 2001. The immediate reelection that the Constitution barred Hagedorn from seeking referred to the regular elections in 2001. Hagedorn did not seek reelection in the 2001 elections. Xxx From June 30, 2001 until the recall election on September 24, 2002, the mayor of Puerto Princesa was Socrates. This period is clearly an interruption in the continuity of Hagedorn s service as mayor, not because of his voluntary renunciation, but because of a legal prohibition. Hagedorn s three consecutive terms ended on June 30, 2001. Hagedorn s new recall term from September 24, 2002 to June 30, 2004 is not a seamless continuation of his previous three consecutive terms as mayor. One cannot stitch together Hagedorn s previous three-terms with his new recall term to make the recall term a fourth consecutive term because factually it is not. An involuntary interruption occurred from June 30, 2001 to September 24, 2002 which broke the continuity or consecutive character of Hagedorn s service as mayor. X x x In Hagedorn s case, the nearly 15-month period he was out of office, although short of a full term of three years, constituted an interruption in the continuity of his service as mayor. The Constitution does not require the interruption or hiatus to be a full term of three years. The clear intent is that interruption for any length of time, as long as the cause is involuntary, is sufficient to break an elective local official s continuity of service. (Victorino Dennis M. Socrates v. The Commission on Elections, G.R. No. 154512, Nov. 12, 2002, En Banc [Carpio])

357. What acts of a Division of the COMELEC may be subject of a motion for reconsideration of the COMELEC en banc? Held: Section 5, Rule 19 of the COMELEC Rules of Procedure, provides: SEC. 5. How Motion for Reconsideration Disposed of. - Upon the filing of a motion to reconsider a decision, resolution, order or ruling of a Division, the Clerk of Court concerned shall, within twenty-four (24) hours from the filing thereof, notify the presiding Commissioner. The latter shall within two (2) days thereafter certify the case to the Commission en banc. Under the above-quoted rule, the acts of a Division that are subject of a motion for reconsideration must have a character of finality before the same can be elevated to the COMELEC en banc. The elementary rule is that an order is final in nature if it completely disposes of the entire case. But if there is something more to be done in the case after its issuance, that order is interlocutory. As correctly pointed out by public respondent in its assailed order of November 29, 1999, the October 11, 1999 did not dispose of the case completely as there is something more to be done which is to decide the election protest. As such, it is the herein public respondent (Second Division of the COMELEC) which issued the interlocutory order of October 11, 1999 that should resolve petitioner s motion for reconsideration, not the COMELEC en banc (Bulaong v. COMELEC, First Division, 220 SCRA

745, 749 [1993]). Accordingly, the applicable rule on the subject is Section 5(c), Rule 3 of the COMELEC Rules of Procedure, which states: Rule 3, Section 5(c). Any motion to reconsider a decision, resolution, order or ruling of a Division shall be resolved by the Commission en banc except motions on interlocutory orders of the division, which shall be resolved by the divisions which issued the order. That only final orders of a Division may be raised before the COMELEC en banc is in accordance with Article IX-C, Section 3 of the Constitution which mandates that only motions for reconsideration of final decisions shall be decided by the Commission on Elections en banc, thus: Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. It bears stressing that under this constitutional provision, the COMELEC en banc shall decide motions for reconsideration only of decisions of a Division, meaning those acts of final character. Clearly, the assailed order denying petitioner's demurrer to evidence, being interlocutory, may not, be resolved by the COMELEC en banc (Ambil, Jr. v. Commission on elections, G.R. No. 143398, Oct. 25, 2000, 344 SCRA 358). (Gementiza v. Commission on Elections, 353 SCRA 724, March 6, 2001, En Banc [Sandoval-Gutierrez]) 358. Will it be proper for the Commission on Elections to act on a petition for recall signed by just one person? Held: A petition for recall signed by just one person is in violation of the statutory 25% minimum requirement as to the number of signatures supporting any petition for recall. Sec. 69(d) of the Local Government Code of 1991 expressly provides that 'recall of any elective x x x municipal x x x official may also be validly initiated upon petition of at least twenty-five percent (25%) of the total number of registered voters in the local government unit concerned during the election in which the local official sought to be recalled was elected.' The law is plain and unequivocal as to what constitutes recall proceedings: only a petition of at least 25% of the total number of registered voters may validly initiate recall proceedings. (Angobung v. COMELEC, G.R. No. 126576, March 5, 1997) 359. Section 74 of the Local Government Code provides that no recall shall take place within one year x x x immediately preceding a regular local election. What does the term regular local election, as used in this section, mean? Held: The term regular local election under Sec. 74 of the Local Government Code of 1991 which provides that no recall shall take place within one (1) year x x x immediately preceding a regular local election refers to one where the position of the official sought to be recalled is to be actually contested and filled by the electorate (Paras v. Comelec, G.R. No. 123169, Nov. 4, 1996). The one-year time bar will not apply where the local official sought to be recalled is a Mayor and the approaching election is a barangay election. (Angobung v. COMELEC, G.R. No. 126576, March 5, 1997) 360. Does the word Recall in paragraph (b) of Section 74 of the Local Government Code include the convening of the Preparatory Recall Assembly and the filing by it of a recall resolution? Discuss. Held: Petitioner contends that the term recall in Sec. 74 (b) refers to a process, in contrast to the term recall election found in Sec. 74 (a), which obviously refers to an election. He claims that when several barangay chairmen met and convened on May 19, 1999 and unanimously resolved to initiate the recall, followed by the taking of votes by the PRA on May 29, 1999 for the purpose of adopting a resolution to

initiate the recall of Jovito Claudio as Mayor of Pasay City for loss of confidence, the process of recall began and, since May 29, 1999 was less than a year after he had assumed office, the PRA was illegally convened and all proceedings held thereafter, including the filing of the recall petition on July 2, 1999, were null and void. The COMELEC, on the other hand, maintains that the process of recall starts with the filing of the petition for recall and ends with the conduct of the recall election, and that, since the petition for recall in this case was filed on July 2, 1999, exactly one year and a day after petitioner s assumption of office, the recall was validly initiated outside the one-year prohibited period. Both petitioner Claudio and the COMELEC thus agree that the term recall as used in Sec. 74 refers to a process. They disagree only as to when the process starts for purpose of the one-year limitation in paragraph (b) of Sec. 74. We can agree that recall is a process which begins with the convening of the preparatory recall assembly or the gathering of the signatures at least 25% of the registered voters of a local government unit, and then proceeds to the filing of a recall resolution or petition with the COMELEC, the verification of such resolution or petition, the fixing of the date of the recall election, and the holding of the election on the scheduled date. However, as used in paragraph (b) of Sec. 74, recall refers to the election itself by means of which voters decide whether they should retain their local official or elect his replacement. Xxx To sum up, the term recall in paragraph (b) refers to the recall election and not to the preliminary proceedings to initiate recall 1) Because Sec. 74 speaks of limitations on recall which, according to Sec. 69, is a power which shall be exercised by the registered voters of a local government unit. Since the voters do not exercise such right except in an election, it is clear that the initiation of recall proceedings is not prohibited within the one-year period provided in paragraph (b); 2) Because the purpose of the first limitation in paragraph (b) is to provide voters a sufficient basis for judging an elective local official, and final judging is not done until the day of the election; and 3) Because to construe the limitation in paragraph (b) as including the initiation of recall proceedings would unduly curtail freedom of speech and of assembly guaranteed in the Constitution. (Jovito O. Claudio v. COMELEC, G.R. No. 140560, May 4, 2000, En Banc [Mendoza]) 361. Who has the legal authority to represent a municipality in lawsuits?

Held: Only the provincial fiscal, provincial attorney, and municipal attorney should represent a municipality in its lawsuits. Only in exceptional instances may a private attorney be hired by a municipality to represent it in lawsuits. (Ramos v. CA, 269 SCRA 34, March 3, 1997) 362. What are the exceptional instances when a private attorney may be validly hired by a municipality in its lawsuits? Held: In Alinsug v. RTC Br. 58, San Carlos City, Negros Occidental (225 SCRA 553, Aug. 23, 1993), it was held that the law allows a private counsel to be hired by a municipality only when the municipality is an adverse party in a case involving the provincial government or another municipality or city within the province. This provision has its apparent origin in De Guia v. The Auditor General (44 SCRA 169, March 29, 1979) where the Court held that the municipality s authority to employ a private attorney is expressly limited only to situations where the provincial fiscal would be disqualified to serve and represent it. (Ramos v. CA, 269 SCRA 34, March 3, 1997)

363. Cite instances when the provincial fiscal may be disqualified to represent in court a particular municipality. Held: As held in Enriquez, Sr. v. Gimenez (107 Phil. 932 [1960]), the provincial fiscal may be disqualified to represent in court a particular municipality in the following instances: 1) If and when original jurisdiction of case involving the municipality is vested in the Supreme Court; 2) When the municipality is a party adverse to the provincial government or to some other municipality in the same province; and 3) When, in a case involving the municipality, he, or his wife, or child, is pecuniarily involved, as heir, legatee, creditor or otherwise. (Ramos v. CA, 269 SCRA 34, March 3, 1997) 364. May a municipality be represented by a private law firm which had volunteered its services gratis, in collaboration with the municipal attorney and the fiscal? Held: No. Such representation will be violative of Section 1983 of the old Administrative Code. This strict coherence to the letter of the law appears to have been dictated by the fact that the municipality should not be burdened with expenses of hiring a private lawyer and that the interests of the municipality would be best protected if a government lawyer handles its litigations. Private lawyers may not represent municipalities on their own. Neither may they do so even in collaboration with authorized government lawyers. This is anchored on the principle that only accountable public officers may act for and in behalf of public entities and that public funds should not be expended to hire private lawyers. (Ramos v. CA, 269 SCRA 34, March 3, 1997) 365. May a municipality adopt the work already performed in good faith by a private lawyer, which work proved beneficial to it? Held: Although a municipality may not hire a private lawyer to represent it in litigations, in the interest of substantial justice, however, it was held that a municipality may adopt the work already performed in good faith by such private lawyer, which work is beneficial to it (1) provided that no injustice is thereby heaped on the adverse party and (2) provided further that no compensation in any guise is paid therefor by said municipality to the private lawyer. Unless so expressly adopted, the private lawyer s work cannot bind the municipality. (Ramos v. CA, 269 SCRA 34, March 3, 1997) 366. May the Punong Barangay validly appoint or remove the barangay treasurer, the barangay secretary, and other appointive barangay officials without the concurrence of the majority of all the members of the Sangguniang Barangay? Held: The Local Government Code explicitly vests on the punong barangay, upon approval by a majority of all the members of the sangguniang barangay, the power to appoint or replace the barangay treasurer, the barangay secretary, and other appointive barangay officials. Verily, the power of appointment is to be exercised conjointly by the punong barangay and a majority of all the members of the sangguniang barangay. Without such conjoint action, neither an appointment nor a replacement can be effectual. Applying the rule that the power to appoint includes the power to remove, the questioned dismissal from office of the barangay officials by the punong barangay without the concurrence of the majority of all the members of the Sangguniang Barangay cannot be legally justified. To rule otherwise could also create an absurd situation of the Sangguniang Barangay members refusing to give their approval to the replacements selected by the punong barangay who has unilaterally terminated the services of the

incumbents. It is likely that the legislature did not intend this absurdity to follow from its enactment of the law. (Ramon Alquizola, Sr. v. Gallardo Ocol, G.R. No. 132413, Aug. 27, 1999, 3rd Div. [Vitug]) 367. What acts of a Division of the COMELEC may be subject of a motion for reconsideration of the COMELEC en banc? Held: Section 5, Rule 19 of the COMELEC Rules of Procedure, provides: SEC. 5. How Motion for Reconsideration Disposed of. - Upon the filing of a motion to reconsider a decision, resolution, order or ruling of a Division, the Clerk of Court concerned shall, within twenty-four (24) hours from the filing thereof, notify the presiding Commissioner. The latter shall within two (2) days thereafter certify the case to the Commission en banc. Under the above-quoted rule, the acts of a Division that are subject of a motion for reconsideration must have a character of finality before the same can be elevated to the COMELEC en banc. The elementary rule is that an order is final in nature if it completely disposes of the entire case. But if there is something more to be done in the case after its issuance, that order is interlocutory. As correctly pointed out by public respondent in its assailed order of November 29, 1999, the October 11, 1999 did not dispose of the case completely as there is something more to be done which is to decide the election protest. As such, it is the herein public respondent (Second Division of the COMELEC) which issued the interlocutory order of October 11, 1999 that should resolve petitioner s motion for reconsideration, not the COMELEC en banc (Bulaong v. COMELEC, First Division, 220 SCRA 745, 749 [1993]). Accordingly, the applicable rule on the subject is Section 5(c), Rule 3 of the COMELEC Rules of Procedure, which states: Rule 3, Section 5(c). Any motion to reconsider a decision, resolution, order or ruling of a Division shall be resolved by the Commission en banc except motions on interlocutory orders of the division, which shall be resolved by the divisions which issued the order. That only final orders of a Division may be raised before the COMELEC en banc is in accordance with Article IX-C, Section 3 of the Constitution which mandates that only motions for reconsideration of final decisions shall be decided by the Commission on Elections en banc, thus: Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. It bears stressing that under this constitutional provision, the COMELEC en banc shall decide motions for reconsideration only of decisions of a Division, meaning those acts of final character. Clearly, the assailed order denying petitioner's demurrer to evidence, being interlocutory, may not, be resolved by the COMELEC en banc (Ambil, Jr. v. Commission on elections, G.R. No. 143398, Oct. 25, 2000, 344 SCRA 358). (Gementiza v. Commission on Elections, 353 SCRA 724, March 6, 2001, En Banc [Sandoval-Gutierrez])

368. Is a contract entered into by the city mayor involving the expenditure of public funds by the local government without prior appropriation by the city council valid and binding? Held: If we are to limit our disquisition to the cited provisions of Presidential Decree No. 1445, or the Auditing Code of the Philippines, in conjunction with Section 177 (b) of Batas Pambansa Blg. 337, or the

Local Government Code of 1983, which empowered the Sangguniang Panlungsod to appropriate funds for expenses of the city government, and fix the salaries of its officers and employees according to law, there would be no debate that prior appropriation by the city council and a certification that funds are available therefore is indeed mandatorily required. Xxx However, the very same Presidential Decree No. 1445, which is the cornerstone of petitioner s arguments, does not provide that the absence of an appropriation law ipso facto makes a contract entered into by a local government unit null and void. Section 84 of the statute specifically provides: Revenue funds shall not be paid out of any public treasury or depository except in pursuance of an appropriation law or other specific statutory authority. Consequently, public funds may be disbursed not only pursuant to an appropriation law, but also in pursuance of other specific statutory authority, i.e., Section 84 of PD 1445. Thus, when a contract is entered into by a city mayor pursuant to specific statutory authority, the law, i.e., PD 1445 allows the disbursement of funds from any public treasury or depository therefor. It can thus be plainly seen that the law invoked by petitioner Quezon City itself provides that an appropriation law is not the only authority upon which public funds shall be disbursed. Furthermore, then Mayor Brigido Simon, Jr. did not enter into the subject contract without legal authority. The Local Government Code of 1983, or B.P. Blg. 337, which was then in force, specifically and exclusively empowered the city mayor to represent the city in its business transactions, and sign all warrants drawn on the city treasury and all bonds, contracts and obligations of the city. Such power granted to the city mayor by B.P. Blg. 337 was not qualified nor restricted by any prior action or authority of the city council. We note that while the subsequent Local Government Code of 1991, which took effect after the execution of the subject contracts, provides that the mayor s representation must be upon authority of the sangguniang panlungsod or pursuant to law or ordinance, there was no such qualification under the old code. (Citations omitted) We must differentiate the provisions of the old Local Government Code of 1983, B.P. Blg. 337, which was then in force, from that of the Local Government Code of 1991, R.A. No. 7160, which now requires that the mayor s representation of the city in its business transactions must be upon authority of the sangguniang panlungsod or pursuant to law or ordinance (Section 455 [vi]. No such prior authority was required under B.P. Blg. 337. This restriction, therefore, cannot be imposed on the city mayor then since the two contracts were entered into before R.A. No. 7160 was even enacted. Under B.P. Blg. 337, while the city mayor has no power to appropriate funds to support the contracts, neither does said law prohibit him from entering into contracts unless and until funds are appropriated therefor. In fact, it is his bounden duty to so represent the city in all its business transactions. On the other hand, the city council must provide for the depositing, leaving or throwing of garbage and to appropriate funds for such expenses. (Section 177 [b]). It cannot refuse to so provide and appropriate public funds for such services which are very vital to the maintenance of cleanliness of the city and the good health of its inhabitants. By entering into the two contracts, Mayor Simon did not usurp the city council s power to provide for the proper disposal of garbage and to appropriate funds therefor. The execution of contracts to address such a need is his statutory duty, just as it is the city council s duty to provide for said services. There is no provision in B.P. Blg. 337, however, that prohibits the city mayor from entering into contracts for the public welfare, unless and until there is prior authority from the city council. This requirement was imposed much later by R.A. No. 7160, long after the contracts had already been executed and implemented.

Even the very Charter of Quezon City, more particularly Section 9(f), Section 12(a)and Section 12(m) thereof, simply provide that the mayor shall exercise general powers and duties, such as signing all warrants drawn on the city treasurer and all bonds, contracts, and obligations of the city, even as it grants the City Council the power, by ordinance or resolution, to make all appropriations for the expenses of the government of the city, as well as to prohibit the throwing or depositing of offal, garbage, refuse, or other offensive matter in the same, and to provide for its collection and disposition x x x. (Citations omitted) While the powers and duties of the Mayor and the City Council are clearly delineated, there is nothing in the cited provisions, nor even in the statute itself, that requires prior authorization by the city council by proper enactment of an ordinance before the City Mayor can enter into contracts. Private respondent Lexber asserts that the subject contract was entered into by Mayor Simon in behalf of the Quezon City government pursuant to specific statutory authority, more particularly the provisions of Executive Order No. 392 (Constituting the Metro Manila Authority [MMA]). x x x (City of Quezon v. Lexber Incorporated, 354 SCRA 493, Mar. 15, 2001, 1st Div. [Ynares-Santiago])

369. Does the President s power of general supervision extend to the liga ng mga barangay, which is not a local government unit? Held: We rule in the affirmative. In Opinion No. 41, Series of 1995, the Department of Justice ruled that the liga ng mga barangay is a government organization, being an association, federation, league or union created by law or by authority of law, whose members are either appointed or elected government officials. The Local Government Code defines the liga ng mga barangay as an organization of all barangays for the primary purpose of determining the representation of the liga in the sanggunians, and for ventilating, articulating and crystallizing issues affecting barangay government administration and securing, through proper and legal means, solutions thereto (Sec. 491, Local Government Code). X x x Xxx The ligas are primarily governed by the provisions of the Local Government Code (Book III, Title VI, Local Government Code). However, their respective constitution and by-laws shall govern other matters affecting internal organization of the liga not otherwise provided for in the Local Government Code provided that the constitution and by-laws shall be suppletory to the provisions of Book III, Title VI of the Local Government Code and shall always conform to the provisions of the Constitution and existing laws (Sec. 507, Local Government Code). Having in mind the foregoing principles, we rule that Memorandum Circular No. 97-193 of the DILG insofar as it authorizes the filing a Petition for Review of the BES with the regular courts in a post proclamation electoral protest is of doubtful constitutionality. We agree with both the petitioner and the Solicitor General that in authorizing the filing of the petition for review of the decision of the BES with the regular courts, the DILG Secretary in effect amended and modified the GUIDELINES promulgated by the National Liga Board and adopted by the LIGA which provides that the decision of the BES shall be subject to review by the National Liga Board. The amendment of the GUIDELINES is more than an exercise of the power of supervision but is an exercise of the power of control, which the President does not have over the LIGA. Although the DILG is given the power to prescribe rules, regulations and other issuances, the Administrative Code limits its authority to merely monitoring compliance by local government units of such issuances (Taule v. Santos, 200 SCRA 512, 523 [1991]). To monitor means to watch, observe or check and is compatible with the power of supervision of the DILG Secretary over local governments, which is limited to checking whether the local government unit concerned or the officers thereof perform their duties as per statutory enactments (Ibid.). Besides, any doubt as to the power of the DILG

Secretary to interfere with local affairs should be resolved in favor of the greater autonomy of the local government (Ibid.) The public respondent judge therefore committed grave abuse of discretion amounting to lack or excess of jurisdiction in not dismissing the respondent s Petition for Review for failure to exhaust all administrative remedies and for lack of jurisdiction. (Bito-Onon v. Fernandez, 350 SCRA 732, Jan. 31, 2001, 3rd Div. [Gonzaga-Reyes]) 370. Petitioners would seek the disqualification of respondent Leonardo B. Roman on the ground of his having transgressed the three-term limit under Section 8, Article X, of the 1987 Constitution and Section 43 of Republic Act No. 7160 (Local Government Code). The focal issue presented before the Court x x x would revolve on the question of whether or not private respondent Roman exceeded the three-term limit for elective local officials, expressed in the Constitution and the Local Government Code, when he again ran for the position of Governor in the 14th of May 2001 elections, having occupied and served in that position following the 1993 recall elections, as well as the 1995 and 1998 regular elections, immediately prior to the 2001 elections. In fine, should respondent s incumbency to the post of Governor following the recall elections be included in determining the three-consecutive term limit fixed by law? Held: After due deliberation, the Court voted 8 to 7 to DISMISS the petition. VITUG, J., joined by YNARES-SANTIAGO, J., voted to dismiss the petition. He contended that as revealed by the records of the Constitutional Commission, the Constitution envisions a continuous and an uninterrupted service for three full terms before the proscription applies. Therefore, not being a full term, a recall term should not be counted or used as a basis for the disqualification whether served prior (as in this case) or subsequent (as in the Socrates case) to the nine-year, full three-term limit. MENDOZA, J., in whose opinion QUISUMBING, J., joined, voted to dismiss the petition on the ground that, in accordance with the ruling in Borja, Jr. v. COMELEC, 295 SCRA 157 [1998]; Arcos v. COMELEC, G.R. No. 133639, Oct. 6, 1998 (res.); Lonzanida v. COMELEC, 311 SCRA 602 [1999]; and Adormeo v. COMELEC, G.R. No. 147927, Feb. 4, 2002, a term during which succession to a local elective office takes place or a recall election is held should not be counted in determining whether an elective local official has served more than three consecutive terms. He argued that the Constitution does not prohibit elective local officials from serving for more than three consecutive terms because, in fact, it excludes from the three-term limit interruptions in the continuity of service, so long as such interruptions are not due to the voluntary renunciation of the office by the incumbent. Hence, the period from June 28, 1994 to June 30, 1995, during which respondent Leonardo B. Roman served as governor of Bataan by virtue of a recall election held in 1993, should not be counted. Since on May 14, 2001 respondent had previously served as governor of Bataan for only two consecutive terms (1995-1998 and 1998-2001), his election on that day was actually only his third term for the same position. PANGANIBAN, J., joined by PUNO, J., also voted to dismiss the petition. He argued that a recall term should not be considered as one full term, because a contrary interpretation would in effect cut short the elected official s service to less than nine years and shortchange his constituents. The desire to prevent monopoly of political power should be balanced against the need to uphold the voters obvious preference who, in the present case, is Roman who received 97 percent of the votes cast. He explained that, in Socrates, he also voted to affirm the clear choice of the electorate, because in a democracy the people should, as much as legally possible, be governed by leaders freely chosen by them in credible elections. He concluded that, in election cases, when two conflicting legal positions are of almost equal weight, the scales of justice should be tilted in favor of the people s overwhelming choice. AZCUNA, J., joined by BELLOSILLO, J., also voted to dismiss, arguing that it is clear from the constitutional provision that the disqualification applies only if the terms are consecutive and the service is full and continuous. Hence, service for less than a term, except only in case of voluntary renunciation,

should not count to disqualify an elective local official from running for the same position. This case is different from Socrates, where the full three consecutive terms had been continuously served so that disqualification had clearly attached. On the other hand, SANDOVAL-GUTIERREZ, J., with whom DAVIDE, C.J., and AUSTRIA-MARTINEZ, CORONA, and CALLEJO, SR., JJ., concurred, holds the view that the recall term served by respondent Roman, comprising the period June 28, 1994 to June 30, 1995, should be considered as one term. Since he thereafter served for two consecutive terms from 1995 to 1998 and from 1998 to 2001, his election on May 14, 2001 was actually his fourth term and contravenes Art. X, Sec. 8 of the Constitution. For this reason, she voted to grant the petition and to declare respondent s election on May 14, 2002 as null and void. CARPIO, J., joined by CARPI0-MORALES, J., also dissented and voted to grant the petition. He held that a recall term constitutes one term and that to totally ignore a recall term in determining the three-term limit would allow local officials to serve for more than nine consecutive years contrary to the manifest intent of the framers of the Constitution. He contended that respondent Roman s election in 2001 cannot exempt him from the three-term limit imposed by the Constitution. In his Separate Opinion, Justice Vitug voted to dismiss the petition on the following considerations: In order that the three-consecutive term limit can apply, two conditions must concur, i.e., (1) that the elective local official concerned has been elected for three consecutive terms to the same local government position, and (2) that he has served three consecutive full terms, albeit a voluntary renunciation of the office for any length of time shall not be deemed to be an interruption in the continuity of the service for the full term for which he is elected. The constitutional provision does not appear to be all that imprecise for and in its application. Section 8, Article X, of the Constitution is explicit that the term of office of elective local officials x x x shall be three years which phrase is forthwith followed by its mandate that no such official shall serve for more than three consecutive terms, and that [v]oluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he [is] elected. The law evidently contemplates a continuous full three-year term before the proscription can apply. The Constitutional Commission, in its deliberations, referred to a full nine (9) years of service for each elective local government official in the application of the prohibition, envisioning at the same time a continuous and uninterrupted period of nine years by providing for only one exception, i.e., when an incumbent voluntarily gives up the office. Xxx A winner who dislodges in a recall election an incumbent elective local official merely serves the balance of the latter s term of office; it is not a full three-year term. It also goes without saying that an incumbent elective local official against whom a recall election is initiated and who nevertheless wins in a recall election must be viewed as being a continuing term of office and not as a break in reckoning his three consecutive terms. X x x If involuntary severance from the service which results in the incumbent s being unable to finish his term of office because of his ouster through valid recall proceedings negates one term for purposes of applying the three-term limit, as so intimated in Lonzanida, it stands to reason that the balance of the term assumed by the newly elected local official in a recall election should not also be held to be one term in reckoning the three-term limit. In both situations, neither the elective local official who is unable to finish his term nor the elected local official who only assumes the balance of the term of the ousted local official following the recall election could be considered to have served a full three-year term set by the Constitution.

This view is not inconsistent, but indeed in line, with the conclusion ultimately reached in Socrates v. Commission on Elections, where the Court has considered Hagedorn, following his three full terms of nine years, still qualified to run in a recall election conducted about a year and a half after the most recent regular local elections. A recall term then, not being a full three-year term, is not to be counted or used as a basis for disqualification whether it is held prior or subsequent to the nine year full three-term limit. This same issue has been passed and ruled upon by the Commission on Elections no less than five times. Consistently, it has held that the term of a newcomer in recall elections cannot be counted as a full term and may not thus be included in counting the three-term limit prescribed under the law. The Commission on Elections, with its fact-finding facilities, its familiarity with political realities, and its peculiar expertise in dealing with election controversies, should be in a good vantage point to resolve issues of this nature. Concededly, no ready made formulae are always extant to address occasional complex issues, allowing time and experience to merely evolve and ultimately provide acceptable solutions. In the administration of election laws, it would be unsound by an excessive zeal to remove from the Commission on Elections the initiative it takes on such questions which, in fact, by legal mandate properly belong to it (See Loong v. COMELEC, 305 SCRA 832, Pangandaman v. COMELEC, 319 SCRA 283). Nor should it be ignored that the law here involved is a limitation on the right of suffrage not only on the candidate for office but also, and most importantly, on the electorate. Respondent Roman has won the election to the post of Governor of Bataan with a comfortable margin against his closest opponent. Where a candidate appears to be the clear choice of the people, doubts on the candidate s eligibility, even only as a practical matter, must be so resolved as to respect and carry out, not defeat, the paramount will of the electorate. While the Constitution would attempt to prevent the monopolization of political power, indeed a wise rule, the precept of preserving the freedom of choice of the people on who shall rightfully hold the reins of government for them is no less than fundamental in looking at its overriding intent. (Melanio L. Mendoza and Mario E. Ibarra v. Commission on Elections and Leonardo B. Roman, G.R. No. 149736, Dec. 17, 2002, En Banc) 371. On May 3, 2001, petitioner filed with the Provincial Election Supervisor in Pagadian City a petition for the disqualification of respondent Sulong, pursuant to Sec. 40[b] of Republic Act No. 7160 (Local Government Code), which disqualifies from running for any elective local position those removed from office as a result of an administrative case. It appears that respondent Sulong had previously won as mayor of Lapuyan on January 18, 1988. In the May 11, 1992, and again in the May 8, 1995 elections, he was reelected. In a petition for disqualification, petitioner alleged that in 1991, during his first term as mayor of Lapuyan, respondent Sulong, along with a municipal councilor of Lapuyan and several other individuals, was administratively charged (AC No. 12-91) with various offenses, and that, on February 4, 1992, the Sangguniang Panlalawigan of Zamboanga del Sur found him guilty of the charges and ordered his removal from office. Petitioner claimed that this decision had become final and executory, and consequently the then vice-mayor of Lapuyan, Vicente Imbing, took his oath as mayor vice respondent Sulong on March 3, 1992. Respondent Sulong denied that the decision in AC No. 12-91 had become final and executory. He averred that after receiving a copy of the decision on February 17, 1992, he filed a motion for reconsideration and/or notice of appeal thereof on February 18, 1992; that on February 27, 1992, the Sangguniang Panlalawigan required Jim Lingating, the complainant in AC No. 12-91, to comment on respondent Sulong s motion for reconsideration and/or notice of appeal; that the said complainant had not yet complied therewith and his (respondent Sulong s) motion had consequently remained pending. Respondent Sulong denied he had been removed from office by virtue of the decision in AC No. 12-91.

Held: Petitioner contends that the COMELEC en banc erred in applying the ruling in Aguinaldo v. Commission on Elections (212 SCRA 768 [1992]) in holding that the reelection of respondent Sulong in 1992 and 1995 as mayor of Lapuyan had the effect of condoning the misconduct for which he was ordered dismissed by the Sangguniang Panlalawigan of Zamboanga del Sur. Petitioner cites Reyes v. Commission on Elections (254 SCRA 514, 525-526 [1996]) in which we held that an elective local executive officer, who is removed before the expiration of the term for which he was elected, is disqualified from being a candidate for a local elective position under Section 40[b] of the Local Government Code. Xxx However, Reyes cannot be applied to this case because it appears that the 1992 decision of the Sangguniang Panlalawigan, finding respondent Sulong guilty of dishonesty, falsification and malversation of public funds, has not until now become final. X x x The filing of his motion for reconsideration prevented the decision of Sangguniang Panlalawigan from becoming final. While R.A. No. 7160 on disciplinary actions is silent on the filing of a motion for reconsideration, the same cannot be interpreted as a prohibition against the filing of a motion for reconsideration. x x x. There is thus no decision finding respondent guilty to speak of. As Provincial Secretary of Zamboanga del Sur Wilfredo Cimafranca attested, the Sangguniang Panlalawigan simply considered the matter as having become moot and academic because it was overtaken by the local elections of May [11], 1992. Neither can the succession of the then vice-mayor of Lapuyan x x x and the highest ranking municipal councilor of Lapuyan x x x to the offices of mayor and vice-mayor, respectively, be considered proof that the decision in AC No. 12-91 had become final because it appears to have been made pursuant to Sec. 68 of the Local Government Code, which makes decisions in administrative cases immediately executory. Indeed, considering the failure of the Sangguniang Panlalawigan to resolve respondent s motion, it is unfair to the electorate to be told after they have voted for respondent Sulong that after all he is disqualified, especially since at the time of the elections on May 14, 2001, the decision of the Sangguniang Panlalawigan had been rendered nearly ten years ago. (Atty. Miguel M. Lingating v. Commission on Elections and Cesar B. Sulong, G.R. No. 153475, Nov. 13, 2002, En Banc [Mendoza]) 372. When may a permanent vacancy arise under Section 44 of the Local Government Code?

Held: Under Section 44, a permanent vacancy arises when an elective official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office. (Navarro v. Court of Appeals, 355 SCRA 672, Mar. 28, 2001, 1st Div. [Kapunan]) 373. How is Section 45(b) of the Local Government Code to be interpreted? What is the reason behind the right given to a political party to nominate a replacement where a permanent vacancy occurs in the Sanggunian? Held: What is crucial is the interpretation of Section 45(b) providing that x x x only the nominee of the political party under which the Sanggunian member concerned has been elected and whose elevation to the position next higher in rank created the last vacancy in the Sanggunian shall be appointed in the manner hereinabove provided. The appointee shall come from the political party as that of the Sanggunian member who caused the vacancy x x x.

The reason behind the right given to a political party to nominate a replacement where a permanent vacancy occurs in the Sanggunian is to maintain the party representation as willed by the people in the election (Aquilino Pimentel, the Local Government Code of 1991, The Key to National Development, p. 150). With the elevation of petitioner Tamayo, who belonged to REFORMA-LM, to the position of ViceMayor, a vacancy occurred in the Sanggunian that should be filled up with someone who should belong to the political party of petitioner Tamayo. Otherwise, REFORMA-LM s representation in the Sanggunian would be diminished. To argue that the vacancy created was that formerly held by Rolando Lalas, a LAKAS-NUCD-Kampi member, would result in the increase of that party s representation in the Sanggunian at the expense of the REFORMA-LM. This interpretation is contrary to the letter and spirit of the law and thus violative of a fundamental rule in statutory construction which is to ascertain and give effect to the intent and purpose of the law (Manila Lodge No. 761 v. Court of Appeals, 73 SCRA 12 [1976]). As earlier pointed out, the reason behind par. (b), section 44 of the Local Government Code is the maintenance of party representation in the Sanggunian in accordance with the will of the electorate. The last vacancy in the Sanggunian refers to that created by the elevation of the member formerly occupying the next higher in rank which in turn also had become vacant by any of the causes already enumerated. The term last vacancy is thus used in Sec. 45 (b) to differentiate it from the other vacancy previously created. The term by no means refers to the vacancy in the No. 8 position which occurred with the elevation of Rolando Lalas to the seventh position in the Sanggunian. Such construction will result in absurdity. (Navarro v. Court of Appeals, 355 SCRA 672, Mar. 28, 2001, 1st Div. [Kapunan]) 374. May local elective officials practice their profession or engage in any occupation?

Ans.: All governors, city and municipal mayors are prohibited from practicing their profession or engaging in any occupation other than the exercise of their functions as local chief executives. (Sec. 90[a], LGC) Sanggunian members may practice their profession, engage in any occupation, or teach in schools except during session hours. (Sec. 90[b], LGC) Sanggunian members who are also members of the Bar shall not: (a) Appear as counsel before any court in any civil case wherein a local government unit or any office, agency, or instrumentality of the government is the adverse party; (b) Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office; (c) Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official; and (d) Use property and personnel of the government except when the sanggunian member concerned is defending the interest of the Government. (Sec. 90[b], LGC)

375. Whether or not the plebiscites scheduled for the creation of Barangays Karangalan and Napico should be suspended or cancelled in view of the pending boundary dispute between the two local governments. Held: To begin with, we agree with the position of the COMELEC that Civil Case No. 94-3006 involving the boundary dispute between the Municipality of Cainta and the City of Pasig presents a prejudicial

question which must first be decided before the plebiscites for the creation of the proposed barangays may be held. Xxx In the case at bar, while the City of Pasig vigorously claims that the areas covered by the proposed Barangays Karangalan and Napico are within its territory, it can not deny that portions of the same area are included in the boundary dispute case pending before the Regional Trial Court of Antipolo. Surely, whether the areas in controversy shall be decided as within the territorial jurisdiction of the Municipality of Cainta or the City of Pasig has material bearing to the creation of the proposed Barangays Karangalan and Napico. Indeed, a requisite for the creation of a barangay is for its territorial jurisdiction to be properly identified by metes and bounds or by more or less permanent natural boundaries (Sec. 386[b], R.A. No. 7160). Precisely because territorial jurisdiction is an issue raised in the pending civil case, until and unless such issue is resolved with finality, to define the territorial jurisdiction of the proposed barangays would only be an exercise in futility. Not only that, we would be paving the way for potentially ultra vires acts of such barangays. X x x Moreover, considering the expenses entailed in the holding of plebiscites, it is far more prudent to hold in abeyance the conduct of the same, pending final determination of whether or not the entire area of the proposed barangays are truly within the territorial jurisdiction of the City of Pasig. Neither do we agree that merely because a plebiscite had already been held in the case of the proposed Barangay Napico, the petition of the Municipality of Cainta has already been rendered moot and academic. The issue raised by the Municipality of Cainta in its petition before the COMELEC against the holding of the plebiscite for the creation of Barangay Napico are still pending determination before the Antipolo Regional Trial Court. Xxx Therefore, the plebiscite on the creation of Barangay Karangalan should be held in abeyance pending final resolution of the boundary dispute between the City of Pasig and the Municipality of Cainta by the Regional Trial Court of Antipolo City. In the same vein, the plebiscite held on March 15, 1997 to ratify the creation of Barangay Napico, Pasig City, should be annulled and set aside. (City of Pasig v. COMELEC, 314 SCRA 179, Sept. 10, 1999, En Banc [Ynares-Santiago])

PUBLIC INTERNATIONAL LAW 376. Discuss the contemporary view on the rightful place of an Individual in International Law? Does he remain a mere object of International Law, or is he now a proper subject of International Law? Held: Then came the long and still ongoing debate on what should be the subject of international law. The 20th century saw the dramatic rise and fall of different types and hues of authoritarianism the fascism of Italy s Mussolini and Germany s Hitler, the militarism of Japan s Hirohito and the communism of Russia s Stalin, etc. The sinking of these isms led to the elevation of the rights of the individual against the state. Indeed, some species of human rights have already been accorded universal recognition (See Universal Declaration of Human Rights [1948], The International Covenant on Economic, Social and Cultural Rights [1966] and The International Covenant on Civil and Political Rights [1966]). Today, the drive to internationalize rights of women and children is also on high gear (The Convention on the Elimination of All Forms of Discrimination Against Women [CEDAW] otherwise known

as The Bill of Rights for Women was adopted by the UN General Assembly in December 1979. As of November 1999, one hundred sixty seven [167] states including the Philippines have ratified or acceded to it. See Statement of Angela King, Special Adviser to the Secretary General of the UN on Gender Issues and Advancement of Women, Judicial Colloquium on the Application of International Human Rights Law at the Domestic Level, Vienna, Austria, October 27, 1999). The higher rating given to human rights on the hierarchy of values necessarily led to the re-examination of the rightful place of the individual in international law. Given the harshest eye is the moss-covered doctrine that international law deals only with States and that individuals are not its subject. For its undesirable corollary is that sub-doctrine that an individual s right in international law is a near cipher. Translated in extradition law, the view that once commanded a consensus is that since a fugitive is a mere object and not a subject of international law, he is bereft of rights. An extraditee, so it was held, is a mere object transported from one state to the other as an exercise of the sovereign will of the two states involved. (Blakesley and Lagodny, Finding Harmony Amidst Disagreement Over Extradition, Jurisdiction, The Role of Human Rights and Issues of Extraterritoriality Under International Criminal Law, Vanderbilt Journal of Transnational Law, Vol. 24, No. 1, p. 44 [1991]) The re-examination consigned this pernicious doctrine to the museum of ideas (See generally Kelsen, Principles of International Law, 2nd ed. [1966]; Korowicz, The Problem of the International Personality of Individuals, 50 Am. J., Int l. Law 553 [1966]). The new thinkers of international law then gave a significant shape to the role and rights of the individual in state-concluded treaties and other international agreements. X x x (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1st Div. [Motion for Reconsideration])

377.

What is the doctrine of incorporation? How is it applied by local courts?

Held: Under the doctrine of incorporation, rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere. The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted with situations in which there appears to be a conflict between a rule of international law and the provisions of the Constitution or statute of the local state. Efforts should first be exerted to harmonize them, so as to give effect to both since it is to be presumed that municipal law was enacted with proper regard for the generally accepted principles of international law in observance of the Incorporation Clause in Section 2, Article II of the Constitution. In a situation however, where the conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts for the reason that such courts are organs of municipal law and are accordingly bound by it in all circumstances. The fact that international law has been made part of the law of the land does not pertain to or imply the primacy of international law over national or municipal law in the municipal sphere. The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments. Accordingly, the principle of lex posterior derogat priori takes effect a treaty may repeal a statute and a statute may repeal a treaty. In states where the Constitution is the highest law of the land, such as the Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict with the Constitution. (Secretary of Justice v. Hon. Ralph C. Lantion, G.R. No. 139465, Jan. 18, 2000, En Banc [Melo]) 378. Is sovereignty really absolute and all-encompassing? limitations? If not, what are its restrictions and

Held: While sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines,

expressly or impliedly, as a member of the family of nations. By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are considered to be automatically part of our own laws. One of the oldest and most fundamental rules in international law is pacta sunt servanda international agreements must be performed in good faith. A state which has contracted valid international obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of the obligations. By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their voluntary act, nations may surrender some aspects of their state power in exchange for greater benefits granted by or derived from a convention or pact. After all, states, like individuals, live with coequals, and in pursuit of mutually covenanted objectives and benefits, they also commonly agree to limit the exercise of their otherwise absolute rights. Thus, treaties have been used to record agreements between States concerning such widely diverse matters as, for example, the lease of naval bases, the sale or cession of territory, the termination of war, the regulation of conduct of hostilities, the formation of alliances, the regulation of commercial relations, the settling of claims, the laying down of rules governing conduct in peace and the establishment of international organizations. The sovereignty of a state therefore cannot in fact and in reality be considered absolute. Certain restrictions enter into the picture: (1) limitations imposed by the very nature of membership in the family of nations and (2) limitations imposed by treaty stipulations. (Tanada v. Angara, 272 SCRA 18, May 2, 1997 [Panganiban]) 379. What must a person who feels aggrieved by the acts of a foreign sovereign do to espouse his cause? Held: Private respondent is not left without any legal remedy for the redress of its grievances. Under both Public International Law and Transnational Law, a person who feels aggrieved by the acts of a foreign sovereign can ask his own government to espouse his cause through diplomatic channels. Private respondent can ask the Philippine government, through the Foreign Office, to espouse its claims against the Holy See. Its first task is to persuade the Philippine government to take up with the Holy See the validity of its claim. Of course, the Foreign Office shall first make a determination of the impact of its espousal on the relations between the Philippine government and the Holy See (Young, Remedies of Private Claimants Against Foreign States, Selected Readings on Protection by Law of Private Foreign Investments 905, 919 [1964]). Once the Philippine government decides to espouse the claim, the latter ceases to be a private cause. According to the Permanent Court of International Justice, the forerunner of the International Court of Justice: By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights - its right to ensure, in the person of its subjects, respect for the rules of international law (The Mavrommatis Palestine Concessions, 1 Hudson, World Court Reports 293, 302 [1924]). (Holy See, The v. Rosario, Jr., 238 SCRA 524, 538-539, Dec. 1, 1994, En Banc [Quiason])

380.

Discuss the Status of the Vatican and the Holy See in International Law.

Held: Before the annexation of the Papal States by Italy in 1870, the Pope was the monarch and he, as the Holy See, was considered a subject of International Law. With the loss of the Papal States and the limitation of the territory under the Holy See to an area of 108.7 acres, the position of the Holy See in International Law became controversial.

In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy recognized the exclusive dominion and sovereign jurisdiction of the Holy See over the Vatican City. It also recognized the right of the Holy See to receive foreign diplomats, to send its own diplomats to foreign countries, and to enter into treaties according to International Law. The Lateran Treaty established the statehood of the Vatican City for the purpose of assuring to the Holy See absolute and visible independence and of guaranteeing to it indisputable sovereignty also in the field of international relations. In view of the wordings of the Lateran Treaty, it is difficult to determine whether the statehood is vested in the Holy See or in the Vatican City. Some writers even suggested that the treaty created two international persons - the Holy See and Vatican City. The Vatican City fits into none of the established categories of states, and the attribution to it of sovereignty must be made in a sense different from that in which it is applied to other states. In a community of national states, the Vatican City represents an entity organized not for political but for ecclesiastical purposes and international objects. Despite its size and object, the Vatican City has an independent government of its own, with the Pope, who is also head of the Roman Catholic Church, as the Holy See or Head of State, in conformity with its traditions, and the demands of its mission in the world. Indeed, the world-wide interests and activities of the Vatican City are such as to make it in a sense an international state. One authority wrote that the recognition of the Vatican City as a state has significant implication - that it is possible for any entity pursuing objects essentially different from those pursued by states to be invested with international personality. Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See and not in the name of the Vatican City, one can conclude that in the Pope's own view, it is the Holy See that is the international person. The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The Holy See, through its Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine government since 1957. This appears to be the universal practice in international relations. (Holy See, The v. Rosario, Jr., 238 SCRA 524, 533-534, Dec. 1, 1994, En Banc [Quiason]) 381. What are international organizations? Discuss their nature.

Held: International organizations are institutions constituted by international agreement between two or more States to accomplish common goals. The legal personality of these international organizations has been recognized not only in municipal law, but in international law as well. Permanent international commissions and administrative bodies have been created by the agreement of a considerable number of States for a variety of international purposes, economic or social and mainly nonpolitical. In so far as they are autonomous and beyond the control of any one State, they have distinct juridical personality independent of the municipal law of the State where they are situated. As such, they are deemed to possess a species of international personality of their own. (SEAFDEC-AQD v. NLRC, 206 SCRA 283, Feb. 14, 1992) 382. Discuss the basic immunities of international organizations and the reason for affording them such immunities. Held: One of the basic immunities of an international organization is immunity from local jurisdiction, i.e., that it is immune from legal writs and processes issued by the tribunals of the country where it is

found. The obvious reason for this is that the subjection of such an organization to the authority of the local courts would afford a convenient medium through which the host government may interfere in their operations or even influence or control its policies and decisions; besides, such subjection to local jurisdiction would impair the capacity of such body to discharge its responsibilities impartially on behalf of its member-states. (SEAFDEC-AQD v. NLRC, 206 SCRA 283, Feb. 4, 1992) 383. Discuss the two conflicting concepts of sovereign immunity from suit.

Held: There are two conflicting concepts of sovereign immunity, each widely held and firmly established. According to the classical or absolute theory, a sovereign cannot, without its consent, be made a respondent in the courts of another sovereign. According to the newer or restrictive theory, the immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state, but not with regard to private acts or acts jure gestionis. Some states passed legislation to serve as guidelines for the executive or judicial determination when an act may be considered as jure gestionis. The United States passed the Foreign Sovereign Immunities Act of 1976, which defines a commercial activity as either a regular course of commercial conduct or a particular commercial transaction or act. Furthermore, the law declared that the commercial character of the activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose. The Canadian Parliament enacted in 1982 an Act to Provide For State Immunity in Canadian Courts. The Act defines a commercial activity as any particular transaction, act or conduct or any regular course of conduct that by reason of its nature, is of a commercial character. The restrictive theory, which is intended to be a solution to the host of problems involving the issue of sovereign immunity, has created problems of its own. Legal treatises and the decisions in countries which follow the restrictive theory have difficulty in characterizing whether a contract of a sovereign state with a private party is an act jure gestionis or an act jure imperii. The restrictive theory came about because of the entry of sovereign states into purely commercial activities remotely connected with the discharge of governmental functions. This is particularly true with respect to the Communist states which took control of nationalized business activities and international trading. (Holy See, The v. Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En Banc [Quiason]) 384. Cite some transactions by a foreign state with private parties that were considered by the Supreme Court as acts jure imperii and acts jure gestionis. Held: This Court has considered the following transactions by a foreign state with private parties as acts jure imperii: (1) the lease by a foreign government of apartment buildings for use of its military officers (Syquia v. Lopez, 84 Phil. 312 [1949]); (2) the conduct of public bidding for the repair of a wharf at a United States Naval Station (United States of America v. Ruiz, supra.); and (3) the change of employment status of base employees (Sanders v. Veridiano, 162 SCRA 88 [1988]). On the other hand, this Court has considered the following transactions by a foreign state with private parties as acts jure gestionis: (1) the hiring of a cook in the recreation center, consisting of three restaurants, a cafeteria, a bakery, a store, and a coffee and pastry shop at the John Hay Air Station in Baguio City, to cater to American servicemen and the general public (United States of America v. Rodrigo, 182 SCRA 644 [1990]; and (2) the bidding for the operation of barber shops in Clark Air Base in Angeles City (United States of America v. Guinto, 182 SCRA 644 [1990]). The operation of the restaurants and other facilities open to the general public is undoubtedly for profit as a commercial and not a governmental activity. By entering into the employment contract with the cook in the discharge of its proprietary function, the United States government impliedly divested itself of it sovereign immunity from suit. (Holy See, The v. Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En Banc [Quiason])

385. What should be the guidelines to determine what activities and transactions shall be considered commercial and as constituting acts jure gestionis by a foreign state? Held: In the absence of legislation defining what activities and transactions shall be considered commercial and as constituting acts jure gestionis, we have to come out with our own guidelines, tentative they may be. Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate test. Such an act can only be the start of the inquiry. The logical question is whether the foreign state is engaged in the activity in the regular course of business. If the foreign state is not engaged regularly in a business or trade, the particular act or transaction must then be tested by its nature. If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure imperii, especially when it is not undertaken for gain or profit. As held in United States of America v. Guinto (supra.): There is no question that the United States of America, like any other state, will be deemed to have impliedly waived its non-suability if it has entered into a contract in its proprietary or private capacity. It is only when the contract involves its sovereign or governmental capacity that no such waiver may be implied. (Holy See, The v. Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En Banc [Quiason]) 386. May the Holy See be sued for selling the land it acquired by donation from the Archdiocese of Manila to be made site of its mission or the Apostolic Nunciature in the Philippines but which purpose cannot be accomplished as the land was occupied by squatters who refused to vacate the area? Held: In the case at bench, if petitioner (Holy See) has bought and sold lands in the ordinary course of a real estate business, surely the said transaction can be categorized as an act jure gestionis. However, petitioner has denied that the acquisition and subsequent disposal of Lot 5-A were made for profit but claimed that it acquired said property for the site of its mission or the Apostolic Nunciature in the Philippines. X x x Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The donation was made not for commercial purpose, but for the use of petitioner to construct thereon the official place of residence of the Papal Nuncio. The right of a foreign sovereign to acquire property, real or personal, in a receiving state, necessary for the creation and maintenance of its diplomatic mission, is recognized in the 1961 Vienna Convention on Diplomatic Relations. This treaty was concurred in by the Philippine Senate and entered into force in the Philippines on November 15, 1965. In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and administrative jurisdiction of the receiving state over any real action relating to private immovable property situated in the territory of the receiving state which the envoy holds on behalf of the sending state for the purposes of the mission. If this immunity is provided for a diplomatic envoy, with all the more reason should immunity be recognized as regards the sovereign itself, which in this case is the Holy See. The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a governmental character. Petitioner did not sell Lot 5-A for profit or gain. It merely wanted to dispose off the same because the squatters living thereon made it almost impossible for petitioner to use it for the purpose of the donation. (Holy See, The v. Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En Banc [Quiason])

387.

How is sovereign or diplomatic immunity pleaded in a foreign court?

Held: In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic immunity in a foreign court, it requests the Foreign Office of the state where it is sued to convey to the court that said defendant is entitled to immunity. In the United States, the procedure followed is the process of suggestion, where the foreign state or the international organization sued in an American court requests the Secretary of State to make a determination as to whether it is entitled to immunity. If the Secretary of State finds that the defendant is immune from suit, he, in turn, asks the Attorney General to submit to the court a suggestion that the defendant is entitled to immunity. In England, a similar procedure is followed, only the Foreign Office issues a certification to that effect instead of submitting a suggestion . In the Philippines, the practice is for the foreign government or the international organization to first secure an executive endorsement of its claim of sovereign or diplomatic immunity. But how the Philippine Foreign Office conveys its endorsement to the courts varies. In International Catholic Migration Commission v. Calleja, 190 SCRA 130 (1990), the Secretary of Foreign Affairs just sent a letter directly to the Secretary of Labor and Employment, informing the latter that the respondent-employer could not be sued because it enjoyed diplomatic immunity. In World Health Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs sent the trial court a telegram to that effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign Affairs to request the Solicitor General to make, in behalf of the commander of the United States Naval Base at Olongapo City, Zambales, a suggestion to respondent Judge. The Solicitor General embodied the suggestion in a Manifestation and Memorandum as amicus curiae. In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with this Court to be allowed to intervene on the side of petitioner. The Court allowed the said Department to file its memorandum in support of petitioner s claim of sovereign immunity. In some cases, the defense of sovereign immunity was submitted directly to the local courts by the respondents through their private counsels. In cases where the foreign states bypass the Foreign Office, the courts can inquire into the facts and make their own determination as to the nature of the acts and transactions involved. (Holy See, The v. Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En Banc [Quiason]) 388. Is the determination of the executive branch of the government that a state or instrumentality is entitled to sovereign or diplomatic immunity subject to judicial review, or is it a political question and therefore, conclusive upon the courts? Held: The issue of petitioner s (The Holy See) non-suability can be determined by the trial court without going to trial in light of the pleadings x x x. Besides, the privilege of sovereign immunity in this case was sufficiently established by the Memorandum and Certification of the Department of Foreign Affairs. As the department tasked with the conduct of the Philippines foreign relations, the Department of Foreign Affairs has formally intervened in this case and officially certified that the Embassy of the Holy See is a duly accredited diplomatic mission to the Republic of the Philippines exempt from local jurisdiction and entitled to all the rights, privileges and immunities of a diplomatic mission or embassy in this country. The determination of the executive arm of government that a state or instrumentality is entitled to sovereign or diplomatic immunity is a political question that is conclusive upon the courts. Where the plea of immunity is recognized and affirmed by the executive branch, it is the duty of the courts to accept this claim so as not to embarrass the executive arm of the government in conducting the country s foreign relations. As in International Catholic Migration Commission and in World Health Organization, we abide by the certification of the Department of Foreign Affairs. (Holy See, The v. Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En Banc [Quiason])

389.

Discuss the Status of the Vatican and the Holy See in International Law.

Held: Before the annexation of the Papal States by Italy in 1870, the Pope was the monarch and he, as the Holy See, was considered a subject of International Law. With the loss of the Papal States and the limitation of the territory under the Holy See to an area of 108.7 acres, the position of the Holy See in International Law became controversial (Salonga and Yap, Public International Law 36-37 [1992]). In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy recognized the exclusive dominion and sovereign jurisdiction of the Holy See over the Vatican City. It also recognized the right of the Holy See to receive foreign diplomats, to send its own diplomats to foreign countries, and to enter into treaties according to International Law (Garcia, Questions and Problems in International Law, Public and Private 81 [1948]). The Lateran Treaty established the statehood of the Vatican City "for the purpose of assuring to the Holy See absolute and visible independence and of guaranteeing to it indisputable sovereignty also in the field of international relations" (O'Connell, I International Law 311 [1965]). In view of the wordings of the Lateran Treaty, it is difficult to determine whether the statehood is vested in the Holy See or in the Vatican City. Some writers even suggested that the treaty created two international persons - the Holy See and Vatican City (Salonga and Yap, supra, 37). The Vatican City fits into none of the established categories of states, and the attribution to it of sovereignty must be made in a sense different from that in which it is applied to other states (Fenwick, International Law 124-125 [1948]; Cruz, International Law 37 [1991]). In a community of national states, the Vatican City represents an entity organized not for political but for ecclesiastical purposes and international objects. Despite its size and object, the Vatican City has an independent government of its own, with the Pope, who is also head of the Roman Catholic Church, as the Holy See or Head of State, in conformity with its traditions, and the demands of its mission in the world. Indeed, the world-wide interests and activities of the Vatican City are such as to make it in a sense an international state (Fenwick, supra, 125; Kelsen, Principles of International Law 160 [1956]). One authority wrote that the recognition of the Vatican City as a state has significant implication that it is possible for any entity pursuing objects essentially different from those pursued by states to be invested with international personality (Kunz, The Status of the Holy See in International Law, 46 The American Journal of International Law 308 [1952]). Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See and not in the name of the Vatican City, one can conclude that in the Pope's own view, it is the Holy See that is the international person. The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The Holy See, through its Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine government since 1957. This appears to be the universal practice in international relations. (Holy See, The v. Rosario, Jr., 238 SCRA 524, 533-534, Dec. 1, 1994, En Banc [Quiason])

390.

What is extradition? To whom does it apply?

Held: It is the process by which persons charged with or convicted of crime against the law of a State and found in a foreign State are returned by the latter to the former for trial or punishment. It applies to those who are merely charged with an offense but have not been brought to trial; to those who have been tried and convicted and have subsequently escaped from custody; and those who have been

convicted in absentia. It does not apply to persons merely suspected of having committed an offense but against whom no charge has been laid or to a person whose presence is desired as a witness or for obtaining or enforcing a civil judgment. (Weston, Falk, D' Amato, International Law and Order, 2nd ed., p. 630 [1990], cited in Dissenting Opinion, Puno, J., in Secretary of Justice v. Hon. Ralph C. Lantion, G.R. No. 139465, Jan. 18, 2000, En Banc) 391. Discuss the basis for allowing extradition.

Held: Extradition was first practiced by the Egyptians, Chinese, Chaldeans and Assyro-Babylonians but their basis for allowing extradition was unclear. Sometimes, it was granted due to pacts; at other times, due to plain good will. The classical commentators on international law thus focused their early views on the nature of the duty to surrender an extraditee --- whether the duty is legal or moral in character. Grotius and Vattel led the school of thought that international law imposed a legal duty called civitas maxima to extradite criminals. In sharp contrast, Puffendorf and Billot led the school of thought that the so-called duty was but an "imperfect obligation which could become enforceable only by a contract or agreement between states. Modern nations tilted towards the view of Puffendorf and Billot that under international law there is no duty to extradite in the absence of treaty, whether bilateral or multilateral. Thus, the US Supreme Court in US v. Rauscher (119 US 407, 411, 7 S Ct. 234, 236, 30 L. ed. 425 [1886]), held: x x x it is only in modern times that the nations of the earth have imposed upon themselves the obligation of delivering up these fugitives from justice to the states where their crimes were committed, for trial and punishment. This has been done generally by treaties x x x Prior to these treaties, and apart from them there was no well-defined obligation on one country to deliver up such fugitives to another; and though such delivery was often made it was upon the principle of comity x x x. (Dissenting Opinion, Puno, J., in Secretary of Justice v. Hon. Ralph C. Lantion, G.R. No. 139465, Jan. 18, 2000, En Banc) 392. What is the nature of an extradition proceeding? Is it akin to a criminal proceeding?

Held: [A]n extradition proceeding is sui generis. It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule, constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee especially by one whose extradition papers are still undergoing evaluation. As held by the US Supreme Court in United States v. Galanis: An extradition proceeding is not a criminal prosecution, and the constitutional safeguards that accompany a criminal trial in this country do not shield an accused from extradition pursuant to a valid treaty. (Wiehl, Extradition Law at the Crossroads: The Trend Toward Extending Greater Constitutional Procedural Protections To Fugitives Fighting Extradition from the United States, 19 Michigan Journal of International Law 729, 741 [1998], citing United States v. Galanis, 429 F. Supp. 1215 [D. Conn. 1977]) There are other differences between an extradition proceeding and a criminal proceeding. An extradition proceeding is summary in natural while criminal proceedings involve a full-blown trial. In contradistinction to a criminal proceeding, the rules of evidence in an extradition proceeding allow admission of evidence under less stringent standards. In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond reasonable doubt for conviction while a fugitive may be ordered extradited upon showing of the existence of a prima facie case. Finally, unlike in a criminal case where judgment becomes executory upon being rendered final, in an extradition proceeding, our courts may adjudge an individual extraditable but the President has the final discretion to extradite him. The United States adheres to a similar practice whereby the Secretary of State exercises wide discretion

in balancing the equities of the case and the demands of the nation's foreign relations before making the ultimate decision to extradite. As an extradition proceeding is not criminal in character and the evaluation stage in an extradition proceeding is not akin to a preliminary investigation, the due process safeguards in the latter do not necessarily apply to the former. This we hold for the procedural due process required by a given set of circumstances must begin with a determination of the precise nature of the government function involved as well as the private interest that has been affected by governmental action. The concept of due process is flexible for not all situations calling for procedural safeguards call for the same kind of procedure. (Secretary of Justice v. Hon. Ralph C. Lantion, G.R. No. 139465, Oct. 17, 2000, En Banc [Puno]) 393. Will the retroactive application of an extradition treaty violate the constitutional prohibition against "ex post facto" laws? Held: The prohibition against ex post facto law applies only to criminal legislation which affects the substantial rights of the accused. This being so, there is no merit in the contention that the ruling sustaining an extradition treaty s retroactive application violates the constitutional prohibition against ex post facto laws. The treaty is neither a piece of criminal legislation nor a criminal procedural statute. (Wright v. CA, 235 SCRA 341, Aug. 15, 1994 [Kapunan]) 394. Discuss the rules in the interpretation of extradition treaties.

Held: [A]ll treaties, including the RP-US Extradition Treaty, should be interpreted in light of their intent. Nothing less than the Vienna Convention on the Law of Treaties to which the Philippines is a signatory provides that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose. X x x. It cannot be gainsaid that today, countries like the Philippines forge extradition treaties to arrest the dramatic rise of international and transnational crimes like terrorism and drug trafficking. Extradition treaties provide the assurance that the punishment of these crimes will not be frustrated by the frontiers of territorial sovereignty. Implicit in the treaties should be the unbending commitment that the perpetrators of these crimes will not be coddled by any signatory state. It ought to follow that the RP-US Extradition Treaty calls for an interpretation that will minimize if not prevent the escape of extraditees from the long arm of the law and expedite their trial. X x x [A]n equally compelling factor to consider is the understanding of the parties themselves to the RP-US Extradition Treaty as well as the general interpretation of the issue in question by other countries with similar treaties with the Philippines. The rule is recognized that while courts have the power to interpret treaties, the meaning given them by the departments of government particularly charged with their negotiation and enforcement is accorded great weight. The reason for the rule is laid down in Santos III v. Northwest Orient Airlines, et al. (210 SCRA 256, 261 [1992]), where we stressed that a treaty is a joint executive-legislative act which enjoys the presumption that it was first carefully studied and determined to be constitutional before it was adopted and given the force of law in the country. (Secretary of Justice v. Hon. Ralph C. Lantion, G.R. No. 139465, Oct. 17, 2000, En Banc [Puno]) 395. Is respondent Mark Jimenez entitled to bail during the pendency of the Extradition Proceeding?

Held: We agree with petitioner. As suggested by the use of the word conviction, the constitutional provision on bail x x x, as well as Section 4 of Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings, because extradition courts do not render judgments of conviction or acquittal.

Moreover, the constitutional right to bail flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt. (De la Camara v. Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando, Jr. [later CJ]) It follows that the constitutional provision on bail will not apply to a case like extradition, where the presumption of innocence is not an issue. The provision in the Constitution stating that the right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended does not detract from the rule that the constitutional right to bail is available only in criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas corpus finds application only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. (Sec. 18, Article VII, Constitution) Hence, the second sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean that the right is available even in extradition proceedings that are not criminal in nature. That the offenses for which Jimenez is sought to be extradited are bailable in the United States is not an argument to grant him one in the present case. To stress, extradition proceedings are separate and distinct from the trial for the offenses for which he is charged. He should apply for bail before the courts trying the criminal cases against him, not before the extradition court. (Government of the United States of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban]) 396. What is the exception to the No Bail Rule in Extradition Proceedings?

Held: The rule x x x is that bail is not a matter of right in extradition cases. However, the judiciary has the constitutional duty to curb grave abuse of discretion and tyranny, as well as the power to promulgate rules to protect and enforce constitutional rights. Furthermore, we believe that the right to due process is broad enough to include the grant of basic fairness to extraditees. Indeed, the right to due process extends to the life, liberty or property of every person. It is dynamic and resilient, adaptable to every situation calling for its application. (I.A. Cruz, Constitutional Law, 1998 ed., p. 98) Accordingly and to best serve the ends of justice, we believe and so hold that, after a potential extraditee has been arrested or placed under the custody of the law, bail may be applied for and granted as an exception, only upon a clear and convincing showing (1) that, once granted bail, the applicant will not be a flight risk or a danger to the community; and (2) that there exist special, humanitarian and compelling circumstances including, as a matter of reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in extradition cases therein. Since this exception has no express or specific statutory basis, and since it is derived essentially from general principles of justice and fairness, the applicant bears the burden of proving the above two-tiered requirement with clarity, precision and emphatic forcefulness. The Court realizes that extradition is basically an executive, not a judicial, responsibility arising from the presidential power to conduct foreign relations. In its barest concept, it partakes of the nature of police assistance amongst states, which is not normally a judicial prerogative. Hence, any intrusion by the courts into the exercise of this power should be characterized by caution, so that the vital international and bilateral interests of our country will not be unreasonably impeded or compromised. In short, while this Court is ever protective of the sporting idea of fair play, it also recognizes the limits of its own prerogatives and the need to fulfill international obligations. (Government of the United States of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban]) 397. Are there special circumstances compelling enough for the Court to grant Mark Jimenez s request for provisional release on bail? Held: Along this line, Jimenez contends that there are special circumstances that are compelling enough for the Court to grant his request for provisional release on bail. We have carefully examined these circumstances and shall now discuss them.

1. Alleged Disenfranchisement While his extradition was pending, Respondent Jimenez was elected as a member of the House of Representatives. On that basis, he claims that his detention will disenfranchise his Manila district of 600,000 residents. We are not persuaded. In People v. Jalosjos (324 SCRA 689, February 3, 2000, per Ynares-Santiago, J.), the Court has already debunked the disenfranchisement argument x x x. It must be noted that even before private respondent ran for and won a congressional seat in Manila, it was already of public knowledge that the United States was requesting his extradition. Hence, his constituents were or should have been prepared for the consequences of the extradition case against their representative, including his detention pending the final resolution of the case. Premises considered and in line with Jalosjos, we are constrained to rule against his claim that his election to public office is by itself a compelling reason to grant him bail. 2. Anticipated Delay Respondent Jimenez further contends that because the extradition proceedings are lengthy, it would be unfair to confine him during the pendency of the case. Again we are not convinced. We must emphasize that extradition cases are summary in nature. They are resorted to merely to determine whether the extradition petition and its annexes conform to the Extradition Treaty, not to determine his guilt or innocence. Neither is it, as a rule, intended to address issues relevant to the constitutional rights available to the accused in a criminal action. We are not overruling the possibility that petitioner may, in bad faith, unduly delay the proceedings. This is quite another matter that is not at issue here. Thus, any further discussion of this point would be merely anticipatory and academic. However, if the delay is due to maneuverings of respondent, with all the more reason would the grant of bail not be justified. Giving premium to delay by considering it as a special circumstance for the grant of bail would be tantamount to giving him the power to grant bail to himself. It would also encourage him to stretch out and unreasonably delay the extradition proceedings even more. This we cannot allow. 3. Not a Flight Risk? Jimenez further claims that he is not a flight risk. To support this claim, he stresses that he learned of the extradition request in June 1999; yet, he has not fled the country. True, he has not actually fled during the preliminary stages of the request for his extradition. Yet, this fact cannot be taken to mean that he will not flee as the process moves forward to its conclusion, as he hears the footsteps of the requesting government inching closer and closer. That he has not yet fled from the Philippines cannot be taken to mean that he will stand his ground and still be within reach of our government if and when it matters; that is, upon the resolution of the Petition for Extradition. In any event, it is settled that bail may be applied for and granted by the trial court at anytime after the applicant has been taken into custody and prior to judgment, even after bail has been previously denied. In the present case, the extradition court may continue hearing evidence on the application for bail, which may be granted in accordance with the guidelines in this Decision. (Government of the United States of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban])

398. Held:

Discuss the Five Postulates of Extradition.

1. Extradition Is a Major Instrument for the Suppression of Crime. First, extradition treaties are entered into for the purpose of suppressing crime by facilitating the arrest and custodial transfer (Bassiouni, International Extradition, 1987 ed., p. 68) of a fugitive from one state to the other. With the advent of easier and faster means of international travel, the flight of affluent criminals from one country to another for the purpose of committing crime and evading prosecution has become more frequent. Accordingly, governments are adjusting their methods of dealing with criminals and crimes that transcend international boundaries. Today, a majority of nations in the world community have come to look upon extradition as the major effective instrument of international co-operation in the suppression of crime. (Bassiouni, supra, p. 21) It is the only regular system that has been devised to return fugitives to the jurisdiction of a court competent to try them in accordance with municipal and international law (Id., p. 67). Xxx Indeed, in this era of globalization, easier and faster international travel, and an expanding ring of international crimes and criminals, we cannot afford to be an isolationist state. We need to cooperate with other states in order to improve our chances of suppressing crime in our country. 2. The Requesting State Will Accord Due Process to the Accused. Second, an extradition treaty presupposes that both parties thereto have examined, and that both accept and trust, each other s legal system and judicial process (Coquia, On Implementation of the RP-US Extradition Treaty, The Lawyers Review, August 31, 2000, p. 4). More pointedly, our duly authorized representative s signature on an extradition treaty signifies our confidence in the capacity and willingness of the other state to protect the basic rights of the person sought to be extradited (See Bassiouni, p. 546; citing 221 US 508, 512 [1910]). That signature signifies our full faith that the accused will be given, upon extradition to the requesting state, all relevant and basic rights in the criminal proceedings that will take place therein; otherwise, the treaty would not have been signed, or would have been directly attacked for its unconstitutionality. 3. The Proceedings Are Sui Generis. Third, as pointed out in Secretary of Justice v. Lantion (Supra), extradition proceedings are not criminal in nature. In criminal proceedings, the constitutional rights of the accused are at fore; in extradition which is sui generis in a class by itself they are not. Xxx Given the foregoing, it is evident that the extradition court is not called upon to ascertain the guilt or the innocence of the person sought to be extradited (Secretary of Justice v. Lantion, supra.). Such determination during the extradition proceedings will only result in needless duplication and delay. Extradition is merely a measure of international judicial assistance through which a person charged with or convicted of a crime is restored to a jurisdiction with the best claim to try that person. It is not part of the function of the assisting authorities to enter into questions that are the prerogative of that jurisdiction (Shearer, Extradition in International Law, 1971 ed., p. 157). The ultimate purpose of extradition

proceedings in court is only to determine whether the extradition request complies with the Extradition Treaty, and whether the person sought is extraditable (Id., p. 545). 4. Compliance Shall Be in Good Faith.

Fourth, our executive branch of government voluntarily entered into the Extradition Treaty, and our legislative branch ratified it. Hence, the Treaty carries the presumption that its implementation will serve the national interest. Fulfilling our obligations under the Extradition Treaty promotes comity (In line with the Philippine policy of cooperation and amity with all nations set forth in Article II, Section 2, Constitution). On the other hand, failure to fulfill our obligations thereunder paints at bad image of our country before the world community. Such failure would discourage other states from entering into treaties with us, particularly an extradition treaty that hinges on reciprocity. Verily, we are bound by pacta sunt servanda to comply in good faith with our obligations under the Treaty (Secretary of Justice v. Lantion, supra.). This principle requires that we deliver the accused to the requesting country if the conditions precedent to extradition, as set forth in the Treaty, are satisfied. In other words, [t]he demanding government, when it has done all that the treaty and the law require it to do, is entitled to the delivery of the accused on the issue of the proper warrant, and the other government is under obligation to make the surrender. (Wright v. Henkel, 190 U.S. 40, 62, March 23, 1903) Accordingly, the Philippines must be ready and in a position to deliver the accused, should it be found proper. 5. There Is an Underlying Risk of Flight.

Fifth, persons to be extradited are presumed to be flight risks. This prima facie presumption finds reinforcement in the experience of the executive branch: nothing short of confinement can ensure that the accused will not flee the jurisdiction of the requested state in order to thwart their extradition to the requesting state. The present extradition case further validates the premise that persons sought to be extradited have a propensity to flee. Indeed, extradition hearings would not even begin, if only the accused were willing to submit to trial in the requesting country (Persily, International Extradition and the Right to Bail, 34 Stan. J. Int l L. 407 [Summer 1988]). Prior acts of herein respondent (1) leaving the requesting state right before the conclusion of his indictment proceedings there; and (2) remaining in the requested state despite learning that the requesting state is seeking his return and that the crimes he is charged with are bailable eloquently speak of his aversion to the processes in the requesting state, as well as his predisposition to avoid them at all cost. These circumstances point to an ever-present, underlying high risk of flight. He has demonstrated that he has the capacity and the will to flee. Having fled once, what is there to stop him, given sufficient opportunity, from fleeing a second time? (Government of the United States of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban]) 399. Discuss the Ten Points to consider in Extradition Proceedings?

Held: 1. The ultimate purpose of extradition proceedings is to determine whether the request expressed in the petition, supported by its annexes and the evidence that may be adduced during the hearing of the petition, complies with the Extradition Treaty and Law; and whether the person sought is extraditable. The proceedings are intended merely to assist the requesting state in bringing the accused or the fugitive who has illegally escaped back to its territory, so that the criminal process may proceed therein.

2. By entering into an extradition treaty, the Philippines is deemed to have reposed its trust in the reliability or soundness of the legal and judicial system of its treaty partner; as well as in the ability and the willingness of the latter to grant basic rights to the accused in the pending criminal case therein. 3. By nature then, extradition proceedings are not equivalent to a criminal case in which guilt or innocence is determined. Consequently, an extradition case is not one in which the constitutional rights of the accused are necessarily available. It is more akin, if at all, to a court s request to police authorities for the arrest of the accused who is at large or has escaped detention or jumped bail. Having once escaped the jurisdiction of the requesting state, the reasonable prima facie presumption is that the person would escape again if given the opportunity. 4. Immediately upon receipt of the petition for extradition and its supporting documents, the judge shall make a prima facie finding whether the petition is sufficient in form and substance, whether it complies with the Extradition Treaty and Law, and whether the person sought is extraditable. The magistrate has discretion to require the petitioner to submit further documentation, or to personally examine the affiants or witnesses. If convinced that a prima facie case exists, the judge immediately issues a warrant for the arrest of the potential extraditee and summons him or her to answer and to appear at scheduled hearings on the petition. 5. After being taken into custody, potential extraditees may apply for bail. Since the applicants have a history of absconding, they have the burden of showing that (a) there is no flight risk and no danger to the community; and (b) there exist special, humanitarian or compelling circumstances. The grounds used by the highest court in the requesting state for the grant of bail therein may be considered, under the principle of reciprocity as a special circumstance. In extradition cases, bail is not a matter of right; it is subject to judicial discretion in the context of the peculiar facts of each case. 6. Potential extraditees are entitled to the rights to due process and to fundamental fairness. Due process does not always call for a prior opportunity to be heard. A subsequent opportunity is sufficient due to the flight risk involved. Indeed, available during the hearings on the petition and the answer is the full chance to be heard and to enjoy fundamental fairness that is compatible with the summary nature of extradition. 7. This Court will always remain a protector of human rights, a bastion of liberty, a bulwark of democracy and the conscience of society. But it is also well aware of the limitations of its authority and of the need for respect for the prerogatives of the other co-equal and co-independent organs of government. 8. We realize that extradition is essentially an executive, not a judicial, responsibility arising out of the presidential power to conduct foreign relations and to implement treaties. Thus, the Executive Department of government has broad discretion in its duty and power of implementation. 9. On the other hand, courts merely perform oversight functions and exercise review authority to prevent or excise grave abuse and tyranny. They should not allow contortions, delays and over-due process every little step of the way, lest these summary extradition proceedings become not only inutile but also sources of international embarrassment due to our inability to comply in good faith with a treaty partner s simple request to return a fugitive. Worse, our country should not be converted into a dubious haven where fugitives and escapees can unreasonably delay, mummify, mock, frustrate, checkmate and defeat the quest for bilateral justice and international cooperation. 10. At bottom, extradition proceedings should be conducted with all deliberate speed to determine compliance with the Extradition Treaty and Law; and, while safeguarding basic individual rights, to avoid the legalistic contortions, delays and technicalities that may negate that purpose. (Government of the

United States of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban])

400.

What is a Treaty? Discuss.

Held: A treaty, as defined by the Vienna Convention on the Law of Treaties, is an international instrument concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments, and whatever its particular designation. There are many other terms used for a treaty or international agreement, some of which are: act, protocol, agreement, compromis d' arbitrage, concordat, convention, declaration, exchange of notes, pact, statute, charter and modus vivendi. All writers, from Hugo Grotius onward, have pointed out that the names or titles of international agreements included under the general term treaty have little or no significance. Certain terms are useful, but they furnish little more than mere description Article 2(2) of the Vienna Convention provides that the provisions of paragraph 1 regarding the use of terms in the present Convention are without prejudice to the use of those terms, or to the meanings which may be given to them in the internal law of the State. (BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc [Buena]) 401. Discuss the binding effect of treaties and executive agreements in international law.

Held: [I]n international law, there is no difference between treaties and executive agreements in their binding effect upon states concerned, as long as the functionaries have remained within their powers. International law continues to make no distinction between treaties and executive agreements: they are equally binding obligations upon nations. (BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc [Buena]) 402. Does the Philippines recognize the binding effect of executive agreements even without the concurrence of the Senate or Congress? Held: In our jurisdiction, we have recognized the binding effect of executive agreements even without the concurrence of the Senate or Congress. In Commissioner of Customs v. Eastern Sea Trading (3 SCRA 351, 356-357 [1961]), we had occasion to pronounce: x x x the right of the Executive to enter into binding agreements without the necessity of subsequent Congressional approval has been confirmed by long usage. From the earliest days of our history we have entered into executive agreements covering such subjects as commercial and consular relations, mostfavored-nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of these has never been seriously questioned by our courts. " (BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc [Buena]) 403. What is a "protocol de cloture"? Will it require concurrence by the Senate?

Held: A final act, sometimes called protocol de cloture, is an instrument which records the winding up of the proceedings of a diplomatic conference and usually includes a reproduction of the texts of treaties, conventions, recommendations and other acts agreed upon and signed by the plenipotentiaries attending the conference. It is not the treaty itself. It is rather a summary of the proceedings of a protracted conference which may have taken place over several years. It will not require the concurrence of the

Senate. The documents contained therein are deemed adopted without need for ratification. (Tanada v. Angara, 272 SCRA 18, May 2, 1997 [Panganiban]) 404. What is the most-favored-nation clause? What is its purpose?

Answer: 1. The most-favored-nation clause may be defined, in general, as a pledge by a contracting party to a treaty to grant to the other party treatment not less favorable than that which has been or may be granted to the most favored among other countries. The clause has been commonly included in treaties of commercial nature. There are generally two types of most-favored-nation clause, namely, conditional and unconditional. According to the clause in its unconditional form, any advantage of whatever kind which has been or may in future be granted by either of the contracting parties to a third State shall simultaneously and unconditionally be extended to the other under the same or equivalent conditions as those under which it has been granted to the third State. (Salonga & Yap, Public International Law, 5th Edition, 1992, pp. 141-142) 2. The purpose of a most favored nation clause is to grant to the contracting party treatment not less favorable than that which has been or may be granted to the "most favored" among other countries. The most favored nation clause is intended to establish the principle of equality of international treatment by providing that the citizens or subjects of the contracting nations may enjoy the privileges accorded by either party to those of the most favored nation (Commissioner of Internal Revenue v. S.C. Johnson and Son, Inc., 309 SCRA 87, 107-108, June 25, 1999, 3rd Div. [Gonzaga-Reyes]) 405. What is the essence of the principle behind the "most-favored-nation" clause as applied to tax treaties? Held: The essence of the principle is to allow the taxpayer in one state to avail of more liberal provisions granted in another tax treaty to which the country of residence of such taxpayer is also a party provided that the subject matter of taxation x x x is the same as that in the tax treaty under which the taxpayer is liable. In Commissioner of Internal Revenue v. S.C. Johnson and Son, Inc., 309 SCRA 87, June 25, 1999, the SC did not grant the claim filed by S.C. Johnson and Son, Inc., a non-resident foreign corporation based in the USA, with the BIR for refund of overpaid withholding tax on royalties pursuant to the most-favored-nation clause of the RP-US Tax Treaty in relation to the RP-West Germany Tax Treaty. It held: Given the purpose underlying tax treaties and the rationale for the most favored nation clause, the concessional tax rate of 10 percent provided for in the RP-Germany Tax Treaty should apply only if the taxes imposed upon royalties in the RP-US Tax Treaty and in the RP-Germany Tax Treaty are paid under similar circumstances. This would mean that private respondent (S.C. Johnson and Son, Inc.) must prove that the RP-US Tax Treaty grants similar tax reliefs to residents of the United States in respect of the taxes imposable upon royalties earned from sources within the Philippines as those allowed to their German counterparts under the RP-Germany Tax Treaty. The RP-US and the RP-West Germany Tax Treaties do not contain similar provisions on tax crediting. Article 24 of the RP-Germany Tax Treaty x x x expressly allows crediting against German income and corporation tax of 20% of the gross amount of royalties paid under the law of the Philippines. On the other hand, Article 23 of the RP-US Tax Treaty, which is the counterpart provision with respect to relief for double taxation, does not provide for similar crediting of 20% of the gross amount of royalties paid. Xxx

X x x The entitlement of the 10% rate by U.S. firms despite the absence of matching credit (20% for royalties) would derogate from the design behind the most favored nation clause to grant equality of international treatment since the tax burden laid upon the income of the investor is not the same in the two countries. The similarity in the circumstances of payment of taxes is a condition for the enjoyment of most favored nation treatment precisely to underscore the need for equality of treatment. 406. What is ratification? Discuss its function in the treaty-making process.

Held: Ratification is generally held to be an executive act, undertaken by the head of state or of the government, as the case may be, through which the formal acceptance of the treaty is proclaimed. A State may provide in its domestic legislation the process of ratification of a treaty. The consent of the State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such ratification, (b) it is otherwise established that the negotiating States agreed that ratification should be required, (c) the representative of the State has signed the treaty subject to ratification, or (d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative, or was expressed during the negotiation. (BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc [Buena]) 407. Explain the pacta sunt servanda rule.

Held: One of the oldest and most fundamental rules in international law is pacta sunt servanda international agreements must be performed in good faith. A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the parties x x x. 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 undertaken. (Tanada v. Angara, 272 SCRA 18, May 2, 1997 [Panganiban]) 408. Explain the "rebus sic stantibus" rule (i.e., things remaining as they are). automatically to render a treaty inoperative? Does it operate

Held: According to Jessup, the doctrine constitutes an attempt to formulate a legal principle which would justify non-performance of a treaty obligation if the conditions with relation to which the parties contracted have changed so materially and so unexpectedly as to create a situation in which the exaction of performance would be unreasonable. The key element of this doctrine is the vital change in the condition of the contracting parties that they could not have foreseen at the time the treaty was concluded. The doctrine of rebus sic stantibus does not operate automatically to render the treaty inoperative. There is a necessity for a formal act of rejection, usually made by the head of state, with a statement of the reasons why compliance with the treaty is no longer required. (Santos III v. Northwest Orient Airlines, 210 SCRA 256, June 23, 1992) 409. What is the doctrine of effective nationality (genuine link doctrine)?

Held: This principle is expressed in Article 5 of the Hague Convention of 1930 on the Conflict of Nationality Laws as follows: Art. 5. Within a third State a person having more than one nationality shall be treated as if he had only one. Without prejudice to the application of its law in matters of personal status and of any convention in force, a third State shall, of the nationalities which any such person possesses, recognize exclusively in its territory either the nationality of the country in which he is habitually and principally resident or the nationality of the country with which in the circumstances he appears to be in fact most closely connected. (Frivaldo v. COMELEC, 174 SCRA 245, June 23, 1989)

410. What are the conditions before foreign military bases, troops, or facilities may be allowed in the Philippines? Ans.: 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. (Sec. 25, Art. XVIII, 1987 Constitution) 411. Which provision of the Constitution applies with regard to the exercise by the Senate of its constitutional power to concur with the Visiting Forces Agreement (VFA)? Held: One focal point of inquiry in this controversy is the determination of which provision of the Constitution applies, with regard to the exercise by the Senate of its constitutional power to concur with the VFA. Petitioners argue that Section 25, Article XVIII is applicable considering that the VFA has for its subject the presence of foreign military troops in the Philippines. Respondents, on the contrary, maintain that Section 21, Article VII should apply inasmuch as the VFA is not a basing arrangement but an agreement which involves merely the temporary visits of United States personnel engaged in joint military exercises. The 1987 Philippine contains two provisions requiring the concurrence of the Senate on treaties or international agreements. Section 21, Article VII x x x reads: "No treaty or international agreement shall be valid and effective unless concurred in by at least twothirds of all the Members of the Senate." Section 25, Article XVIII, provides: "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 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.

It is our considered view that both constitutional provisions, far from contradicting each other, actually share some common ground. These constitutional provisions both embody phrases in the negative and thus, are deemed prohibitory in mandate and character. In particular, Section 21 opens with the clause "No treaty x x x," and Section 25 contains the phrase "shall not be allowed." Additionally, in both instances, the concurrence of the Senate is indispensable to render the treaty or international agreement valid and effective. To our mind, the fact that the President referred the VFA to the Senate under Section 21, Article VII, and that the Senate extended its concurrence under the same provision, is immaterial. For in either case, whether under Section 21, Article VII or Section 25, Article XVIII, the fundamental law is crystalline that the concurrence of the Senate is mandatory to comply with the strict constitutional requirements. On the whole, the VFA is an agreement which defines the treatment of United States troops and personnel visiting the Philippines. It provides for the guidelines to govern such visits of military personnel, and further defines the rights of the United States and the Philippine government in the matter of criminal jurisdiction, movement of vessels and aircraft, importation and exportation of equipment, materials and supplies. Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops, or facilities, should apply in the instant case. To a certain extent and in a limited sense, however, the provisions of Section 21, Article VII will find applicability with regard to the issue and for the sole purpose of determining the number of votes required to obtain the valid concurrence of the Senate x x x. It is a finely-imbedded principle in statutory construction that a special provision or law prevails over a general one. Lex specialis derogat generali. Thus, where there is in the same statute a particular enactment and also a general one which, in its most comprehensive sense, would include what is embraced in the former, the particular enactment must be operative, and the general enactment must be taken to affect only such cases within its general language which are not within the provision of the particular enactment (Manila Railroad Co. v. Collector of Customs, 52 Phil. 950). (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]) 412. Should the contention that since the VFA merely involved the temporary visits of United States personnel engaged in joint military exercises and not a basing agreement, therefore, Sec. 21, Art. VII of the 1987 Constitution, and not Sec. 25, Art. XVIII, should apply to the VFA, be upheld? Held: It is specious to argue that Section 25, Article XVIII is inapplicable to mere transient agreements for the reason that there is no permanent placing of structure for the establishment of a military base. On this score, the Constitution makes no distinction between "transient" and "permanent". Certainly, we find nothing in Section 25, Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in the Philippines. It is a rudiment in legal hermeneutics that when no distinction is made by law, the Court should not distinguish - Ubi lex non distinguit nec nos distinguire debemos. In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not controlling since no foreign military bases, but merely foreign troops and facilities, are involved in the VFA. Notably, a perusal of said constitutional provision revels that the proscription covers "foreign military bases, troops, or facilities." Stated differently, this prohibition is not limited to the entry of troops and facilities without any foreign bases being established. The clause does not refer to foreign military bases, troops, or facilities" collectively but treats them as separate and independent subjects. The use of

comma and disjunctive word "or" clearly signifies disassociation and independence of one thing from the others included in the enumeration (Castillo-Co v. Barbers, 290 SCRA 717, 723 [1998]), such that, the provision contemplates three different situations - a military treaty the subject of which could be either (a) foreign bases (b) foreign troops, or (c) foreign facilities - any of the three standing alone places it under the coverage of Section 25, Article XVIII. To this end, the intention of the framers of the Charter, as manifested during the deliberations of the 1986 Constitutional Commission, is consistent with this interpretation x x x. Moreover, military bases established within the territory of another state is no longer viable because of the alternatives offered by new means and weapons of warfare such as nuclear weapons, guided missiles as well as huge sea vessels that can stay afloat in the sea even for months and years without returning to their home country. These military warships are actually used as substitutes for a land-home base not only of military aircraft but also of military personnel and facilities. Besides, vessels are mobile as compared to a land-based military headquarters. (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]) 413. Were the requirements of Sec. 25, Art. XVIII of the 1987 Constitution complied with when the Senate gave its concurrence to the VFA? Held: Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must be duly concurred in by the Senate and, when so required by Congress, ratified by a majority of the votes cast by the people in a national referendum; and (c) recognized as a treaty by the other contracting state. There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence handed by the Senate through Resolution No. 18 is in accordance with the provisions of the Constitution, whether under the general requirement in Section 21, Article VII, or the specific mandate mentioned in Section 25, Article XVIII, the provision in the latter article requiring ratification by a majority of the votes cast in a national referendum being unnecessary since Congress has not required it. As to the matter of voting, Section 21, Article VII particularly requires that a treaty or international agreement, to be valid and effective, must be concurred in by at least two-thirds of all the members of the Senate. On the other hand, Section 25, Article XVIII simply provides that the treaty be "duly concurred in by the Senate." Applying the foregoing constitutional provisions, a two-thirds vote of all the members of the Senate is clearly required so that the concurrence contemplated by law may be validly obtained and deemed present. While it is true that Section 25, Article XVIII requires, among other things, that the treaty - the VFA, in the instant case - be "duly concurred in by the Senate," it is very true however that said provision must be related and viewed in light of the clear mandate embodied in Section 21, Article VII, which in more specific terms, requires that the concurrence of a treaty, or international agreement, be made by a two-thirds vote of all the members of the Senate. Indeed, Section 25, Article XVIII must not be treated in isolation to Section 21, Article VII. As noted, the "concurrence requirement" under Section 25, Article XVIII must be construed in relation to the provisions of Section 21, Article VII. In a more particular language, the concurrence of the Senate contemplated under Section 25, Article XVIII means that at least two-thirds of all the members of the Senate favorably vote to concur with the treaty - the VFA in the instant case. xxx

Having resolved that the first two requisites prescribed in Section 25, Article XVIII are present, we shall now pass upon and delve on the requirement that the VFA should be recognized as a treaty by the United States of America. xxx This Court is of the firm view that the phrase "recognized as a treaty" means that the other contracting party accepts or acknowledges the agreement as a treaty (Ballantine's Legal Dictionary, 1995). To require the other contracting state, The United States of America in this case, to submit the VFA to the United States Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase. Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary meaning except where technical terms are employed, in which case the significance thus attached to them prevails. Its language should be understood in the sense they have in common use (J.M. Tuason & Co., Inc. v. Land Tenure Association, 31 SCRA 413 [1970]) Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty (Altman Co. v. United States, 224 US 263 [1942], cited in Coquia and Defensor-Santiago, International Law, 1998 Ed. P. 497). To be sure, as long as the VFA possesses the elements of an agreement under international law, the said agreement is to be taken equally as a treaty. xxx The records reveal that the United States Government, through Ambassador Thomas C. Hubbard, has stated that the United States government has fully committed to living up to the terms of the VFA. For as long as the United States of America accepts or acknowledges the VFA as a treaty, and binds itself further to comply with its obligations under the treaty, there is indeed marked compliance with the mandate of the Constitution. Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence of the Senate should be taken as a clear and unequivocal expression of our nation's consent to be bound by said treaty, with the concomitant duty to uphold the obligations and responsibilities embodied thereunder. xxx With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of notes between the Philippines and the United States of America, it now becomes obligatory and incumbent on our part, under the principles of international law, to be bound by the terms of the agreement. Thus, no less than Section 2, Article II of the Constitution, declares that the Philippines adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations. (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]) 414. Are the Balikatan exercises covered by the Visiting Forces Agreement?

Held: The holding of Balikatan 02-1 must be studied in the framework of the treaty antecedents to which the Philippines bound itself. The first of these is the Mutual Defense Treaty (MDT, for brevity). The MDT has been described as the core of the defense relationship between the Philippines and its traditional ally, the United States. Its aim is to enhance the strategic and technological

capabilities of our armed forces through joint training with its American counterparts; the Balikatan is the largest such training exercise directly supporting the MDT s objectives. It is this treaty to which the VFA adverts and the obligations thereunder which it seeks to reaffirm. The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it created a vacuum in US-Philippine defense relations, that is, until it was replaced by the Visiting Forces Agreement. It should be recalled that on October 10, 2000, by a vote of eleven to three, this Court upheld the validity of the VFA (BAYAN, et. Al. v. Zamora, et. al., 342 SCRA 449 [2000]). The VFA provides the regulatory mechanism by which United States military and civilian personnel [may visit] temporarily in the Philippines in connection with activities approved by the Philippine Government. It contains provisions relative to entry and departure of American personnel, driving and vehicle registration, criminal jurisdiction, claims, importation and exportation, movement of vessels and aircraft, as well as the duration of the agreement and its termination. It is the VFA which gives continued relevance to the MDT despite the passage of years. Its primary goal is to facilitate the promotion of optimal cooperation between American and Philippine military forces in the event of an attack by a common foe. The first question that should be addressed is whether Balikatan 02-1 is covered by the Visiting Forces Agreement. To resolve this, it is necessary to refer to the VFA itself. Not much help can be had therefrom, unfortunately, since the terminology employed is itself the source of the problem. The VFA permits United States personnel to engage, on an impermanent basis, in activities, the exact meaning of which was left undefined. The expression is ambiguous, permitting a wide scope of undertakings subject only to the approval of the Philippine government. The sole encumbrance placed on its definition is couched in the negative, in that United States personnel must abstain from any activity inconsistent with the spirit of this agreement, and in particular, from any political activity. All other activities, in other words, are fair game. We are not completely unaided, however. The Vienna Convention on the Law of Treaties, which contains provisos governing interpretations of international agreements, state x x x. It is clear from the foregoing that the cardinal rule of interpretation must involve an examination of the text, which is presumed to verbalize the parties intentions. The Convention likewise dictates what may be used as aids to deduce the meaning of terms, which it refers to as the context of the treaty, as well as other elements may be taken into account alongside the aforesaid context. X x x The Terms of Reference rightly fall within the context of the VFA. After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the word activities arose from accident. In our view, it was deliberately made that way to give both parties a certain leeway in negotiation. In this manner, visiting US forces may sojourn in Philippine territory for purposes other than military. As conceived, the joint exercises may include training on new techniques of patrol and surveillance to protect the nation s marine resources, sea search-and-destroy operations to assist vessels in distress, disaster relief operations, civic action projects such as the building of school houses, medical and humanitarian missions, and the like. Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to assume that Balikatan 02-1, a mutual anti-terrorism advising, assisting and training exercise, falls under the umbrella of sanctioned or allowable activities in the context of the agreement. Both the history and intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-related activities as opposed to combat itself such as the one subject of the instant petition, are indeed authorized. (Arthur D. Lim and Paulino R. Ersando v. Honorable Executive Secretary, G.R. No. 151445, April 11, 2002, En Banc [De Leon])

415. With the ratification of the Visiting Forces Agreement (VFA), has it now become obligatory and incumbent on our part to be bound by its terms even if it is asserted that said agreement contravenes the Constitution? Held: With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of notes between the Philippines and the United States of America, it now becomes obligatory and incumbent on our part, under the principles of international law, to be bound by the terms of the agreement. Thus, no less than Section 2, Article II of the Constitution, declares that the Philippines adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations. As a member of the family of nations, the Philippines agrees to be bound by generally accepted rules for the conduct of its international relations. While the international obligation devolves upon the state and not upon any particular branch, institution, or individual member of its government, the Philippines is nonetheless responsible for violations committed by any branch or subdivision of its government or any official thereof. As an integral part of the community of nations, we are responsible to assure that our government, Constitution and laws will carry out our international obligation (Louis Henkin, Richard C. Pugh, Oscar Schachter, Hans Smit, International Law, Cases and Materials, 2nd Ed., American Casebook Series, p. 136). Hence, we cannot readily plead the Constitution as a convenient excuse for noncompliance with our obligations, duties and responsibilities under international law. Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the International Law Commission in 1949 provides: Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty. (Gerhard von Glahn, supra, p. 487) Equally important is Article 26 of the Convention which provides that Every treaty in force is binding upon the parties to it and must be performed by them in good faith. This is known as the principle of pacta sunt servanda which preserves the sanctity of treaties and have been one of the most fundamental principles of positive international law, supported by the jurisprudence of international tribunals (Harris, p. 634 cited in Coquia, International Law, supra, p. 512). (BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, 342 SCRA 449, 492493, En Banc [Buena])

416. What must a person who feels aggrieved by the acts of a foreign sovereign do to espouse his cause? Held: Private respondent is not left without any legal remedy for the redress of its grievances. Under both Public International Law and Transnational Law, a person who feels aggrieved by the acts of a foreign sovereign can ask his own government to espouse his cause through diplomatic channels. Private respondent can ask the Philippine government, through the Foreign Office, to espouse its claims against the Holy See. Its first task is to persuade the Philippine government to take up with the Holy See the validity of its claim. Of course, the Foreign Office shall first make a determination of the impact of its espousal on the relations between the Philippine government and the Holy See (Young, Remedies of Private Claimants Against Foreign States, Selected Readings on Protection by Law of Private Foreign Investments 905, 919 [1964]). Once the Philippine government decides to espouse the claim, the latter ceases to be a private cause. According to the Permanent Court of International Justice, the forerunner of the International Court of Justice:

By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights - its right to ensure, in the person of its subjects, respect for the rules of international law (The Mavrommatis Palestine Concessions, 1 Hudson, World Court Reports 293, 302 [1924]). (Holy See, The v. Rosario, Jr., 238 SCRA 524, 538-539, Dec. 1, 1994, En Banc [Quiason]) 417. What are the conditions before the rights of belligerency may be accorded the rebels?

Ans.: As a matter of legal theory, the rebels have to fulfill certain conditions before the rights of belligerency are accorded them, namely: 1) An organized civil government that has control and direction over the armed struggle launched by the rebels; 2) Occupation of a substantial portion of the national territory; 3) Seriousness of the struggle, which must be so widespread thereby leaving no doubt as to the outcome; 4) Willingness on the part of the rebels to observe the rules and customs of war. 418. Discuss the legal consequences that follow recognition of belligerency. Ans.: 1) Before recognition as such, it is the legitimate government that is responsible for the acts of the rebels affecting foreign nationals and their properties. Once recognition is given, the legitimate government may no longer be held responsible for their acts; responsibility is shifted to the rebel government; 2) The legitimate government, once it recognizes the rebels as belligerents, is bound to observe the laws and customs of war in conducting the hostilities; 3) From the point of view of third States, the effect of recognition of belligerency is to put them under obligation to observe strict neutrality and abide by the consequences arising from that position; 4) On the side of the rebels, recognition of belligerency puts them under responsibility to third States and to the legitimate government for all their acts which do not conform to the laws and customs of war. (Salonga & Yap, Public International Law, 5th Ed. [1992], p. 33) 419. Should Courts blindly adhere and take on its face the communication from the Department of Foreign Affairs (DFA) that a person is covered by any immunity? Held: Courts cannot blindly adhere and take on its face the communication from the DFA that petitioner is covered by any immunity. The DFA s determination that a certain person is covered by immunity is only preliminary which has no binding effect in courts. In receiving ex parte the DFA s advice and in motu proprio dismissing the two criminal cases without notice to the prosecution, the latter s right to due process was violated. It should be noted that due process is a right of the accused as much as it is of the prosecution. The needed inquiry in what capacity petitioner was acting at the time of the alleged utterances requires for its resolution evidentiary basis that has yet to be presented at the proper time (See United States v. Guinto, 182 SCRA 644 [1990]). At any rate, it has been ruled that the mere invocation of the immunity clause does not ipso facto result in the dropping of the charges (Chavez v. Sandiganbayan, 193 SCRA 282 [1991]). (Liang v. People, 323 SCRA 692, Jan. 28, 2000, 1st Div. [Ynares-Santiago]) 420. Discuss the basis of the argument that a determination by the DFA that a person is entitled to diplomatic immunity is a political question binding on the courts. Held: Petitioner s argument that a determination by the Department of Foreign Affairs that he is entitled to diplomatic immunity is a political question binding on the courts, is anchored on the ruling enunciated in the case of WHO, et al. v. Aquino, et al. (48 SCRA 242 [1972]), viz:

It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch of the government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government as in the case at bar, it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law officer of the government, the Solicitor General in this case, or other officer acting under his direction. Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction by seizure and detention of property, as to embarrass the executive arm of the government in conducting foreign relations, it is accepted doctrine that in such cases the judicial department of the government follows the action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction. This ruling was reiterated in the subsequent cases of International Catholic Migration Commission v. Calleja (190 SCRA 130 [1990]); The Holy See v. Rosario, Jr. (238 SCRA 524 [1994]); Lasco v. United Nations (241 SCRA 681 [1995]); and DFA v. NLRC (262 SCRA 38 [1996]). The case of WHO v. Aquino involved the search and seizure of personal effects of petitioner Leonce Verstuyft, an official of the WHO. Verstuyft was certified to be entitled to diplomatic immunity pursuant to the Host Agreement executed between the Philippines and the WHO. ICMC v. Calleja concerned a petition for certification election filed against ICMC and IRRI. As international organizations, ICMC and IRRI were declared to possess diplomatic immunity. It was held that they are not subject to local jurisdictions. It was ruled that the exercise of jurisdiction by the Department of Labor over the case would defeat the very purpose of immunity, which is to shield the affairs of international organizations from political pressure or control by the host country and to ensure the unhampered performance of their functions. Holy See v. Rosario, Jr. involved an action for annulment of sale of land against the Holy See, as represented by the Papal Nuncio. The Court upheld the petitioner s defense of sovereign immunity. It ruled that where a diplomatic envoy is granted immunity from the civil and administrative jurisdiction of the receiving state over any real action relating to private immovable property situated in the territory of the receiving state, which the envoy holds on behalf of the sending state for the purposes of the mission, with all the more reason should immunity be recognized as regards the sovereign itself, which in that case is the Holy See. In Lasco v. United Nations, the United Nations Revolving Fund for Natural Resources Exploration was sued before the NLRC for illegal dismissal. The Court again upheld the doctrine of diplomatic immunity invoked by the Fund. Finally, DFA v. NLRC involved an illegal dismissal case filed against the Asian Development Bank. Pursuant to its Charter and the Headquarters Agreement, the diplomatic immunity of the Asian Development Bank was recognized by the Court. It bears to stress that all of these cases pertain to the diplomatic immunity enjoyed by international organizations. Petitioner asserts that he is entitled to the same diplomatic immunity and he cannot be prosecuted for acts allegedly done in the exercise of his official functions. The term international organizations is generally used to describe an organization set up by agreement between two or more states. Under contemporary international law, such organizations are endowed with some degree of international legal personality such that they are capable of exercising specific rights, duties and powers. They are

organized mainly as a means for conducting general international business in which the member states have an interest. (ICMC v. Calleja, supra note 2) International public officials have been defined as: x x x persons who, on the basis of an international treaty constituting a particular international community, are appointed by this international community, or by an organ of it, and are under its control to exercise, in a continuous way, functions in the interest of this particular international community, and who are subject to a particular personal status. (John Kerry King, The Privileges and Immunities of the Personnel of International Organizations xiii [1949], citing: Suzanne Basdevant, Les Functionnaires Internationaux [Paris: 1931], Chapter I) Specialized agencies are international organizations having functions in particular fields, such as posts, telecommunications, railways, canals, rivers, sea transport, civil aviation, meteorology, atomic energy, finance, trade, education and culture, health and refugees (ICMC v. Calleja, et al., citing Articles 57 and 63 of the United Nations Charter). (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1st Div. [Motion for Reconsideration]) 421. What are the differences between Diplomatic and International Immunities? Discuss.

Held: There are three major differences between diplomatic and international immunities. Firstly, one of the recognized limitations of diplomatic immunity is that members of the diplomatic staff of a mission may be appointed from among the nationals of the receiving State only with the express consent of that State; apart from inviolability and immunity from jurisdiction in respect of official acts performed in the exercise of their functions, nationals enjoy only such privileges and immunities as may be granted by the receiving State. International immunities may be specially important in relation to the State of which the official is a national. Secondly, the immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State; in the case of international immunities there is no sending State and an equivalent for the jurisdiction of the Sending State therefore has to be found either in waiver of immunity or in some international disciplinary or judicial procedure. Thirdly, the effective sanctions which secure respect for diplomatic immunity are the principle of reciprocity and the danger of retaliation by the aggrieved State; international immunities enjoy no similar protection (C. Wilfred Jenks, Contemporary Development in International Immunities xxxvii [1961]) (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1st Div. [Motion for Reconsideration]) 422. Discuss the immunity of International Officials.

Held: The generally accepted principles which are now regarded as the foundation of international immunities are contained in the ILO Memorandum, which reduced them in three basic propositions, namely: (1) that international institutions should have a status which protects them against control or interference by any one government in the performance of functions for the effective discharge of which they are responsible to democratically constituted international bodies in which all the nations concerned are represented; (2) that no country should derive any financial advantage by levying fiscal charges on common international funds; and (3) that the international organization should, as a collectivity of States Members, be accorded the facilities for the conduct of its official business customarily extended to each other by its individual member States. The thinking underlying these propositions is essentially institutional in character. It is not concerned with the status, dignity or privileges of individuals, but with the elements of functional independence necessary to free international institutions from national control and to enable them to discharge their responsibilities impartially on behalf of all their members (Id. at 17). (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1st Div. [Motion for Reconsideration])

423. What are the three methods of granting privileges and immunities to the personnel of international organizations? Under what category does the Asian Development Bank and its Personnel fall? Held: Positive international law has devised three methods of granting privileges and immunities to the personnel of international organizations. The first is by simple conventional stipulation, as was the case in the Hague Conventions of 1899 and 1907. The second is by internal legislation whereby the government of a state, upon whose territory the international organization is to carry out its functions, recognizes the international character of the organization and grants, by unilateral measures, certain privileges and immunities to better assure the successful functioning of the organization and its personnel. In this situation, treaty obligation for the state in question to grant concessions is lacking. Such was the case with the Central Commission of the Rhine at Strasbourg and the International Institute of Agriculture at Rome. The third is a combination of the first two. In this third method, one finds a conventional obligation to recognize a certain status of an international organization and its personnel, but the status is described in broad and general terms. The specific definition and application of those general terms are determined by an accord between the organization itself and the state wherein it is located. This is the case with the League of Nations, the Permanent Court of Justice, and the United Nations (J.K. King, supra note 12, at 81). The Asian Development Bank and its Personnel fall under this third category. There is a connection between diplomatic privileges and immunities and those extended to international officials. The connection consists in the granting, by contractual provisions, of the relatively well-established body of diplomatic privileges and immunities to international functionaries. This connection is purely historical. Both types of officials find the basis of their special status in the necessity of retaining functional independence and freedom from interference by the state of residence. However, the legal relationship between an ambassador and the state to which he is accredited is entirely different from the relationship between the international official and those states upon whose territory he might carry out its functions (See Id. at 255). The privileges and immunities of diplomats and those of international officials rest upon different legal foundations. Whereas those immunities awarded to diplomatic agents are a right of the sending state based on customary international law, those granted to international officials are based on treaty or conventional law. Customary international law places no obligation on a state to recognize a special status of an international official or to grant him jurisdictional immunities. Such an obligation can only result from specific treaty provisions (Id. at 25-26). The special status of the diplomatic envoy is regulated by the principle of reciprocity by which a state is free to treat the envoy of another state as its envoys are treated by that state. The juridical basis of the diplomat s position is firmly established in customary international law. The diplomatic envoy is appointed by the sending State but it has to make certain that the agreement of the receiving State has been given for the person it proposes to accredit as head of the mission to that State (Article 4, Vienna Convention on Diplomatic Relations). The staff personnel of an international organization the international officials assume a different position as regards their special status. They are appointed or elected to their position by the organization itself, or by a competent organ of it; they are responsible to the organization and their official acts are imputed to it. The juridical basis of their special position is found in conventional law (J.K. King, supra note 12, at xiii), since there is no established basis of usage or custom in the case of the international official. Moreover, the relationship between an international organization and a memberstate does not admit of the principle of reciprocity (Id. at 27), for it is contradictory to the basic principle of equality of states. An international organization carries out functions in the interest of every member state equally. The international official does not carry out his functions in the interest of any state, but in

serving the organization he serves, indirectly, each state equally. He cannot be, legally, the object of the operation of the principle of reciprocity between states under such circumstances. It is contrary to the principle of equality of states for one state member of an international organization to assert a capacity to extract special privileges for its nationals from other member states on the basis of a status awarded by it to an international organization. It is upon this principle of sovereign equality that international organizations are built. It follows from this same legal circumstance that a state called upon to admit an official of an international organization does not have a capacity to declare him persona non grata. The functions of the diplomat and those of the international official are quite different. Those of the diplomat are functions in the national interest. The task of the ambassador is to represent his state, and its specific interest, at the capital of another state. The functions of the international official are carried out in the international interest. He does not represent a state or the interest of any specific state. He does not usually represent the organization in the true sense of that term. His functions normally are administrative, although they may be judicial or executive, but they are rarely political or functions of representation, such as those of the diplomat. There is a difference of degree as well as of kind. The interruption of the activities of a diplomatic agent is likely to produce serious harm to the purposes for which his immunities were granted. But the interruption of the activities of the international official does not, usually, cause serious dislocation of the functions of an international secretariat (id. at 254-257). On the other hand, they are similar in the sense that acts performed in an official capacity by either a diplomatic envoy or an international official are not attributable to him as an individual but are imputed to the entity he represents, the state in the case of the diplomat, and the organization in the case of the international official (Id. at 103). ). (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1st Div. [Motion for Reconsideration]) 424. What is the reason behind the current tendency of reducing privileges and immunities of personnel of international organizations to a minimum? Held: Looking back over 150 years of privileges and immunities granted to the personnel of international organizations, it is clear that they were accorded a wide scope of protection in the exercise of their functions The Rhine Treaty of 1804 between the German Empire and France which provided all the rights of neutrality to persons employed in regulating navigation in the international interest; The Treaty of Berlin of 1878 which granted the European Commission of the Danube complete independence of territorial authorities in the exercise of its functions; The Convention of the League which granted diplomatic immunities and privileges. Today, the age of the United Nations finds the scope of protection narrowed. The current tendency is to reduce privileges and immunities of personnel of international organizations to a minimum. The tendency cannot be considered as a lowering of the standard but rather as a recognition that the problem on the privileges and immunities of international officials is new. The solution to the problem presented by the extension of diplomatic prerogatives to international functionaries lies in the general reduction of the special position of both types of agents in that the special status of each agent is granted in the interest of function. The wide grant of diplomatic prerogatives was curtailed because of practical necessity and because the proper functioning of the organization did not require such extensive immunity for its officials. While the current direction of the law seems to be to narrow the prerogatives of the personnel of international organizations, the reverse is true with respect to the prerogatives of the organizations themselves, considered as legal entities. Historically, states have been more generous in granting privileges and immunities to organizations than they have to the personnel of these organizations (J.K. King, supra note 12, at 253-268).

Thus, Section 2 of the General Convention on the Privileges and Immunities of the United Nations states that the UN shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity. Section 4 of the Convention on the Privileges and Immunities of the Specialized Agencies likewise provides that the specialized agencies shall enjoy immunity from every form of legal process subject to the same exception. Finally, Article 50[1] of the ADB Charter and Section 5 of the Headquarters Agreement similarly provide that the bank shall enjoy immunity from every form of legal process, except in cases arising out of or in connection with the exercise of its powers to borrow money, to guarantee obligations, or to buy and sell or underwrite the sale of securities. The phrase immunity from every form of legal process as used in the UN General Convention has been interpreted to mean absolute immunity from a state s jurisdiction to adjudicate or enforce its law by legal process, and it is said that states have not sought to restrict that immunity of the United Nations by interpretation or amendment. Similar provisions are contained in the Special Agencies Convention as well as in the ADB Charter and Headquarters Agreement. These organizations were accorded privileges and immunities in their charters by language similar to that applicable to the United Nations. It is clear therefore that these organizations were intended to have similar privileges and immunities (1 Restatement of the Law Third 498-501). From this, it can be easily deduced that international organizations enjoy absolute immunity similar to the diplomatic prerogatives granted to diplomatic envoys. Even in the United States this seems to be the prevailing rule x x x. On the other hand, international officials are governed by a different rule. Section 18[a] of the General Convention on Privileges and Immunities of the United Nations states that officials of the United Nations shall be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity. The Convention on Specialized Agencies carries exactly the same provision. The Charter of the ADB provides under Article 55[i] that officers and employees of the bank shall be immune from legal process with respect to acts performed by them in their official capacity except when the Bank waives immunity. Section 45 [a] of the ADB Headquarters Agreement accords the same immunity to the officers and staff of the bank. There can be no dispute that international officials are entitled to immunity only with respect to acts performed in their official capacity, unlike international organizations which enjoy absolute immunity. Clearly, the most important immunity to an international official, in the discharge of his international functions, is immunity from local jurisdiction. There is no argument in doctrine or practice with the principle that an international official is independent of the jurisdiction of the local authorities for his official acts. Those acts are not his, but are imputed to the organization, and without waiver the local courts cannot hold him liable for them. In strict law, it would seem that even the organization itself could have no right to waive an official s immunity for his official acts. This permits local authorities to assume jurisdiction over an individual for an act which is not, in the wider sense of the term, his act al all. It is the organization itself, as a juristic person, which should waive its own immunity and appear in court, not the individual, except insofar as he appears in the name of the organization. Provisions for immunity from jurisdiction for official acts appear, aside from the aforementioned treatises, in the constitution of most modern international organizations. The acceptance of the principle is sufficiently widespread to be regarded as declaratory of international law (J.K. King, supra note 12, at 258-259) (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1st Div. [Motion for Reconsideration]) 425. What is the status of the international official with respect to his private acts?

Held: Section 18 [a] of the General Convention has been interpreted to mean that officials of the specified categories are denied immunity from local jurisdiction for acts of their private life and empowers local courts to assume jurisdiction in such cases without the necessity of waiver (Id. at 186).

It has earlier been mentioned that historically, international officials were granted diplomatic privileges and immunities and were thus considered immune for both private and official acts. In practice, this wide grant of diplomatic prerogatives was curtailed because of practical necessity and because the proper functioning of the organization did not require such exclusive immunity for its officials. Thus, the current status of the law does not maintain that states grant jurisdictional immunity to international officials for acts of their private lives (But see id. at 259. It is important to note that the submission of international officials to local jurisdiction for private acts is not completely accepted in doctrine and theory. Jenks, in particular, has argued for complete jurisdictional immunity, as has Hammarskjold.). This much is explicit from the charter and Headquarters Agreement of the ADB which contain substantially similar provisions to that of the General convention. (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1st Div. [Motion for Reconsideration]) 426. Who is competent to determine whether a given act of international officials and representatives is private or official? Held: In connection with this question, the current tendency to narrow the scope of privileges ad immunities of international officials and representatives is most apparent. Prior to the regime of the United Nations, the determination of this question rested with the organization and its decision was final. By the new formula, the state itself tends to assume this competence. If the organization is dissatisfied with the decision, under the provisions of the General Convention of the United Nations, or the Special Convention for Specialized Agencies, the Swiss Arrangement, and other current dominant instruments, it may appeal to an international tribunal by procedures outlined in these instruments. Thus, the state assumes this competence in the first instance. It means that, if a local court assumes jurisdiction over an act without the necessity of waiver from the organization, the determination of the nature of the act is made at the national level (Id. at 260-261). It appears that the inclination is to place the competence to determine the nature of an act as private or official in the courts of the state concerned. That the practical notion seems to be to leave to the local courts determination of whether or not a given act is official or private does not necessarily mean that such determination is final. If the United Nations questions the decision of the Court, it may invoke proceedings for settlement of disputes between the organization and the member states as provided in Section 30 of the General Convention. Thus, the decision as to whether a given act is official or private is made by the national courts in the first instance, but it may be subjected to review in the international level if questioned by the United Nations (Id. at 189). xxx Under the Third Restatement of the Law, it is suggested that since an international official does not enjoy personal inviolability from arrest or detention and has immunity only with respect to official acts, he is subject to judicial or administrative process and must claim his immunity in the proceedings by showing that the act in question was an official act. Whether an act was performed in the individual s official capacity is a question for the court in which a proceeding is brought, but if the international organization disputes the court s finding, the dispute between that organization and the state of the forum is to be resolved by negotiation, by an agreed mode of settlement or by advisory opinion of the International Court of Justice (Restatement of the Law Third 512). Recognizing the difficulty that by reason of the right of a national court to assume jurisdiction over private acts without a waiver of immunity, the determination of the official or private character of a particular act may pass from international to national, Jenks proposes three ways of avoiding difficulty in the matter. The first would be for a municipal court before which a question of the official or private character of a particular act arose to accept as conclusive in the matter any claim by the international organization that the act was official in character, such a claim being regarded as equivalent to a governmental claim that a particular act is an act of State. Such a claim would be in effect a claim by the

organization that the proceedings against the official were a violation of the jurisdictional immunity of the organization itself which is unqualified and therefore not subject to delimitation in the discretion of the municipal court. The second would be for a court to accept as conclusive in the matter a statement by the executive government of the country where the matter arises certifying the official character of the act. The third would be to have recourse to the procedure of international arbitration. Jenks opines that it is possible that none of these three solutions would be applicable in all cases; the first might be readily acceptable only in the clearest cases and the second is available only if the executive government of the country where the matter arises concurs in the view of the international organization concerning the official character of the act. However, he surmises that taken in combination, these various possibilities may afford the elements of a solution to the problem (Jenks, supra note 14, at 117-118). (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1st Div. [Motion for Reconsideration]) 427. Discuss the extent of the international official s immunity for official acts.

Held: One final point. The international official s immunity for official acts may be likened to a consular official s immunity from arrest, detention, and criminal or civil process which is not absolute but applies only to acts or omissions in the performance of his official functions, in the absence of special agreement. Since a consular officer is not immune from all legal processes, he must respond to any process and plead and prove immunity on the ground that the act or omission underlying the process was in the performance of his official functions. The issue has not been authoritatively determined, but apparently the burden is on the consular official to prove his status as well as his exemption in the circumstances. In the United States, the US Department of State generally has left it to the courts to determine whether a particular act was within a consular officer s official duties (1 Restatement of the Law Third 475-477). (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1st Div. [Motion for Reconsideration]) 428. State the occasions when the use of force may be allowed under the UN Charter.

Ans.: There are only two occasions when the use of force is allowed under the UN Charter. The first is when it is authorized in pursuance of the enforcement action that may be decreed by the Security Council under Art. 42. The second is when it is employed in the exercise of the inherent right of self-defense under conditions prescribed in Art. 51. (Justice Isagani A. Cruz, in an article entitled A New World Order written in his column Separate Opinion published in the March 30, 2003 issue of the Philippines Daily Inquirer) 429. Is the United States justified in invading Iraq invoking its right to defend itself against an expected attack by Iraq with the use of its biological and chemical weapons of mass destruction? Ans.: The United States is invoking its right to defend itself against an expected attack by Iraq with the use of its biological and chemical weapons of mass destruction. There is no evidence of such a threat, but Bush is probably invoking the modern view that a state does not have to wait until the potential enemy fires first. The cowboy from Texas says that outdrawing the foe who is about to shoot is an act of self-defense. Art. 51 says, however, that there must first be an armed attack before a state can exercise its inherent right of self-defense, and only until the Security Council, to which the aggression should be reported, shall have taken the necessary measures to maintain international peace and security. It was the United States that made the armed attack first, thus becoming the aggressor, not Iraq. Iraq is now not only exercising its inherent right of self-defense as recognized by the UN Charter. (Justice Isagani A. Cruz, in an article entitled A New World Order written in his column Separate Opinion published in the March 30, 2003 issue of the Philippines Daily Inquirer)

430. Will the subsequent discovery of weapons of mass destruction in Iraq after its invasion by the US justify the attack initiated by the latter? Ans.: Even if Iraq s hidden arsenal is discovered or actually used and the United States is justified in its suspicions, that circumstance will not validate the procedure taken against Iraq. It is like searching a person without warrant and curing the irregularity with the discovery of prohibited drugs in his possession. The process cannot be reversed. The warrant must first be issued before the search and seizure can be made. The American invasion was made without permission from the Security Council as required by the UN Charter. Any subsequent discovery of the prohibited biological and chemical weapons will not retroactively legalize that invasion, which was, legally speaking, null and void ab initio. (Justice Isagani A. Cruz, in an article entitled A New World Order written in his column Separate Opinion published in the March 30, 2003 issue of the Philippines Daily Inquirer)