2017 Syllabus Pol Pil

Notes and CasesPOLITICAL LAW AND PUBLIC INTERNATIONAL LAW Attorney EDWIN REY SANDOVAL January 16 – July 28, 2017 POLITICAL LAW THE CONSTITUTION The Doctrine of Constitutional Supremacy Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the Constitution, that law or contract, whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes, is null and void and without any force and effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contract. (Manila Prince Hotel v. GSIS, 267 SCRA 408 [1997] [Bellosillo]) Self-executing and Non-self-executing Provisions of the Constitution A provision which lays down a general principle, such as those found in Article II of the 1987 Constitution, is usually not self-executing. But a provision which is complete in itself and becomes operative without the aid of supplementary or enabling legislation, or that which supplies sufficient rule by means of which the right it grants may be enjoyed or protected, is self- executing. Thus a constitutional provision is self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the Constitution itself, so that they can be determined by an examination and construction of its terms, and there is no language indicating that the subject is referred to the legislature for action. (Manila Prince Hotel v. GSIS, 267 SCRA 408 [1997] [Bellosillo]) Provisions of the Constitution are presumed to be Self-executing Unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the presumption now is that all provisions are self-executing. If the constitutional provisions are treated as requiring legislation instead of self-executing, the legislature would have the power to ignore and practically nullify the mandate of the fundamental law. This can be cataclysmic. (Manila Prince Hotel v. GSIS, 267 SCRA 408 [1997] [Bellosillo]) The Effect of Declaration of Unconstitutionality of a Legislative or Executive Act A legislative or executive act that is declared void for being unconstitutional cannot give rise to any right or obligation. (Commissioner of Internal Revenue v. San Roque Power Corporation, G.R. No. 187485, October 8, 2013 cited in Maria Carolina P. Araullo, et al. v. Benigno Simeon C. Aquino III, et al. G.R. No., 209287, 728 SCRA 1, July 1, 2014, En Banc [Bersamin]) The Operative Fact Doctrine The doctrine of operative fact recognizes the existence of the law or executive act prior to the determination of its unconstitutionality as an operative fact that produced consequences that cannot always be erased, ignored or disregarded. In short, it nullifies the void law or executive act but sustains its effects. It provides an exception to the general rule that a void or unconstitutional law produces no effect. But its use must be subjected to great scrutiny and 1 circumspection, and it cannot be invoked to validate an unconstitutional law or executive act, but is resorted to only as a matter of equity and fair play. It applies only to cases where extraordinary circumstances exist, and only when the extraordinary circumstances have met the stringent conditions that will permit its application. (Maria Carolina P. Araullo, et al. v. Benigno Simeon C. Aquino III, et al. G.R. No., 209287, 728 SCRA 1, July 1, 2014, En Banc [Bersamin]) Operative Fact Doctrine Applied in the DAP (Disbursement Acceleration Program) Case We find the doctrine of operative fact applicable to the adoption and implementation of the DAP. Its application to the DAP proceeds from equity and fair play. The consequences resulting from the DAP and its related issuances could not be ignored or could no longer be undone. As already mentioned, the implementation of the DAP resulted into the use of savings pooled by the Executive to finance the PAPs that were not covered in the GAA, or that did not have proper appropriation covers, as well as to augment items pertaining to other departments of the Government in clear violation of the Constitution. To declare the implementation of the DAP unconstitutional without recognizing that its prior implementation constituted an operative fact that produced consequences in the real as well as juristic worlds of the Government and the Nation is to be impractical and unfair. Unless the doctrine is held to apply, the Executive as the disburser and the offices under it and elsewhere as the recipients could be required to undo everything that they had implemented in good faith under the DAP. That scenario would be enormously burdensome for the Government. Equity alleviates such burden. The other side of the coin is that it has been adequately shown as to be beyond debate that the implementation of the DAP yielded undeniably positive results that enhanced the economic welfare of the country. To count the positive results may be impossible, but the visible ones, like public infrastructure, could easily include roads, bridges, homes for the homeless, hospitals, classrooms and the like. Not to apply the doctrine of operative fact to the DAP could literally cause the physical undoing of such worthy results by destruction, and would result in most undesirable wastefulness. (Maria Carolina P. Araullo, et al. v. Benigno Simeon C. Aquino III, et al. G.R. No., 209287, 728 SCRA 1, July 1, 2014, En Banc [Bersamin]) The Doctrine of Operative Fact Extends as well to a Void or Unconstitutional Executive Act The term executive act is broad enough to include any and all acts of the Executive, including those that are quasi-legislative and quasi-judicial in nature. In Commissioner of Internal Revenue v. San Roque Power Corporation (G.R. No. 187485, October 8, 2013), the Court likewise declared that “for the operative act doctrine to apply, there must be a ‘legislative or executive measure,’ meaning a law or executive issuance.” Thus, the Court opined there that the operative fact doctrine did not apply to a mere administrative practice of the Bureau of Internal Revenue, x x x. It is clear from the foregoing that the adoption and the implementation of the DAP and its related issuances were executive acts. The DAP itself, as a policy, transcended a merely administrative practice especially after the Executive, through the DBM, implemented it by issuing various memoranda and circulars. (Maria Carolina P. Araullo, et al. v. Benigno Simeon C. Aquino III, et al. G.R. No., 209287, 728 SCRA 1, July 1, 2014, En Banc [Bersamin]) 2 The Presumption of Good Faith Stands in the DAP Case despite the Obiter Pronouncement The quoted text of paragraphs 3 and 4 shows that the Court has neither thrown out the presumption of good faith nor imputed bad faith to the authors, proponents and implementers of the DAP. The contrary is true, because the Court has still presumed their good faith by pointing out that “the doctrine of operative fact x x x cannot apply to the authors, proponents and implementers of the DAP, unless there are concrete findings of good faith in their favor by the proper tribunals determining their criminal, civil, administrative and other liabilities.” X x x It is equally important to stress that the ascertainment of good faith, or the lack of it, and the determination of whether or not due diligence and prudence were exercised, are questions of fact. The want of good faith is thus better determined by tribunals other than this Court, which is not a trier of facts. For sure, the Court cannot jettison the presumption of good faith in this or in any other case. The presumption is a matter of law. It has had a long history. Indeed, good faith has long been established as a legal principle even in the heydays of the Roman Empire. X x x Relevantly the authors, proponents and implementers of the DAP, being public officers, further enjoy the presumption of regularity in the performance of their functions. This presumption is necessary because they are clothed with some part of the sovereignty of the State, and because they act in the interest of the public as required by law. However, the presumption may be disputed. At any rate, the Court has agreed during its deliberations to extend to the proponents and the implementers of the DAP the benefit of the doctrine of operative fact. This is because they had nothing to do at all with the adoption of the invalid acts and practices. (Maria Carolina P. Araullo, et al. v. Benigno Simeon C. Aquino III, et al., G.R. No. 209287, February 3, 2015, En Banc [Bersamin], Resolution of the Motion for Reconsideration) THE NATIONAL TERRITORY The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. (Article I, 1987 Constitution) The Maritime Baselines Law (R.A. No. 9522) In 1961, Congress passed Republic Act No. 3046 (RA 3046) demarcating the maritime baselines of the Philippines as an archipelagic State. This law followed the framing of the Convention on the Territorial Sea and the Contiguous Zone in 1958 (UNCLOS I), codifying, among others, the sovereign right of States parties over their “territorial sea,” the breadth of which, however, was left undetermined. Attempts to fill this void during the second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus, domestically, RA 3046 remained unchanged for nearly five decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA 5446]) correcting typographical errors and reserving the drawing of baselines around Sabah in North Borneo. 3 No. optimized the location of some basepoints around the Philippine archipelago and classified adjacent territories. August 16. et al. sea-use rights over maritime zones (i. cession and prescription. Eduardo Ermita. 187167. either straight or contoured.. Magallona. which the Philippines ratified on 27 February 1984. Eduardo Ermita. In turn. and contour of baselines of archipelagic states like the Philippines and sets the deadline for the filing of application for the extended continental shelf. et al. Congress amended RA 3046 by enacting RA 9522.. Magallona. Territorial claims to land features are outside UNCLOS IIII. immigration and sanitation laws in the contiguous zone (Article 33). et al. fiscal. recognizing coastal and archipelagic States’ graduated authority over a limited span of waters and submarine lands along their coasts.. The change was prompted by the need to make RA 3046 compliant with the terms of the United Nations Convention on the Law of the Sea (UNCLOS III). August 16. et al. Thus. contiguous zone [24 nautical miles from the baselines]. RA 9522 shortened one baseline. the territorial waters [12 nautical miles from the baselines]. 2011. baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit with precision the extent of their maritime zones and continental shelves. Complying with these requirements.e. not by executing multilateral treaties on the regulation of sea-use rights or enacting statutes to comply with the treaty’s terms to delimit maritime zones and continental shelves. v. states acquire (or conversely. 655 SCRA 476. (Professor Merlin M.R. to serve as geographic starting points to measure the breadth of the maritime zones and continental shelf. exclusive economic zone [200 nautical miles from the baselines]). (Professor Merlin M. this gives notice to the rest of the international community of the scope of the maritime space and submarine areas within which States parties exercise treaty-based rights. 2011. It is a statutory tool to demarcate the country’s maritime zones and continental shelf under UNCLOS III. En Banc [Carpio]) RA 9522’s use of the framework of Regime of Islands to determine the maritime zones of the Kalayaan Island Group (KIG) and the Scarborough Shoal is not inconsistent with the Philippines’ claim of sovereignty over these areas. No. UNCLOS III prescribes the water-land ratio. save for at least nine basepoints that 4 . accretion. Eduardo Ermita. Hon. UNCLOS III has nothing to do with the acquisition (or loss) of territory. No. Among others. length. and the right to exploit the living and non-living resources in the exclusive economic zone (Article 56) and continental shelf (Article 77). 2011.R. and are instead governed by the rules on general international law. among others. 655 SCRA 476. not to delineate Philippine territory. In March 2009. It is a multilateral treaty regulating. 655 SCRA 476. namely. En Banc [Carpio]) RA 9522 is not unconstitutional. the Kalayaan Island Group (KIG) and the Scarborough Shoal. et al. 187167. August 16. enlargement or diminution of territory. En Banc [Carpio]) UNCLOS III and its ancillary baselines laws play no role in the acquisition. v. G. Under traditional international law typology. Magallona. baselines laws such as RA 9522 are enacted by UNCLOS III States parties to work-out specific basepoints along their coasts from which baselines are drawn. namely: the exercise of sovereignty over territorial waters (Article 2). (Professor Merlin M.. as “regimes of islands” whose islands generate their own applicable maritime zones. G. The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522 merely followed the basepoints mapped by RA 3046. v. On the other hand. Hon. Hon. G. 187167. et al.R. UNCLOS III was the culmination of decades-long negotiations among United Nations members to codify norms regulating the conduct of States in the world’s oceans and submarine areas. lose) territory through occupation. the jurisdiction to enforce customs. and continental shelves that UNCLOS III delimits. 216 square nautical miles x x x.” Xxx [T]he amendment of the baselines law was necessary to enable the Philippines to draw the outer limits of its maritime zones including the extended continental shelf provided by Article 47 of [UNCLOS III]. En Banc [Carpio]) THE DOCTRINE OF STATE IMMUNITY FROM SUIT The State may not be sued without its consent. The Philippines would have committed a breach of two provisions of UNCLOS III. any “naturally formed area of land. G. qualifies under the category of “regime of islands. Eduardo Ermita. which is above water at high tide. Under RA 3046. Petitioners’ assertion of loss of “about 15.RA 9522 skipped to optimize the location of basepoints and adjust the length of one baseline (and thus comply with UNCLOS III’s limitation on the maximum length of baselines).. Hence.” whose islands generate their own applicable maritime zones. territorial sea and exclusive economic zone) by 154. X x x Although the Philippines has consistently claimed sovereignty over the KIG and the Scarborough Shoal for several decades. the KIG and the Scarborough Shoal lie outside of the baselines drawn around the Philippine archipelago. et al. petitioners’ argument that the KIG now lies outside Philippine territory because the baselines that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. surrounded by water. as under RA 9522.R. No. far from surrendering the Philippines’ claim over the KIG and the Scarborough Shoal. Magallona. et al. 1987 Constitution) Discuss the basis of the Doctrine of State Immunity from Suit The basic postulate enshrined in the Constitution that “[t]he State may not be sued without its consent. (Professor Merlin M. adverse legal effects would have ensued.” reflects nothing less than a recognition of the sovereign character of the 5 . 187167. Further. 2011. by optimizing the location of basepoints. v. Article XVI. 655 SCRA 476. (Section 3. Under Article 121 of UNCLOS III. these outlying areas are located at an appreciable distance from the nearest shoreline of the Philippine archipelago. Congress’ decision to classify the KIG and the Scarborough Shoal as “’Regime[s] of Islands’ under the Republic of the Philippines consistent with Article 121” of UNCLOS III manifests the Philippine State’s responsible observance of its pacta sunt servanda obligation under UNCLOS III.000 square nautical miles of territorial waters” under RA 9522 is similarly unfounded both in fact and law. Hon. assuming that baselines are relevant for this purpose.” such as portions of the KIG. such that any straight baseline loped around them from the nearest basepoint will inevitably “depart to an appreciable extent from the general configuration of our archipelago. On the contrary. This undeniable cartographic fact takes the wind out of petitioners’ argument branding RA 9522 as a statutory renunciation of the Philippines’ claim over the KIG. RA 9522. Section 2 of the law commits to text the Philippines’ continued claim of sovereignty and jurisdiction over the KIG and the Scarborough Shoal x x x Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine archipelago. increased the Philippines’ total maritime space (covering its internal waters. August 16. express or implied. It is based on the very essence of sovereignty. Express consent may be made through a general law (i. 1445 [Sections 49-50]. however. (Department of Agriculture v. sue the State thereby) or a special law. Commonwealth Act No. for the loss of governmental efficiency and the obstacle to the performance of its multifarious functions would be far greater in severity than the inconvenience that may be caused private parties. i. Not all contracts entered into by the government operate as a waiver of its non-suability. is derisively called “the royal prerogative of dishonesty” because it grants the state the prerogative to defeat any legitimate claim against it by simply invoking its non-suability. In United States of America v. 227 SCRA 693. Rejection of the claim will authorize the claimant to elevate the matter to the Supreme Court on certiorari and. not because of any formal conception or obsolete theory. 1993 [Vitug]) The rule that when the State enters into a contract with a private individual or entity. where the Philippine government “consents and submits to be sued upon any money claim involving liability arising from contract. it is deemed to have descended to the level of that private individual or entity and. is conceded when the State itself commences litigation.” its clear import then is that the State may at times be sued. commercial and proprietary 6 . In this situation.. (Department of Agriculture v. the government is deemed to have descended to the level of the other contracting party and to have divested itself of its sovereign immunity. the doctrine. if such fundamental principle is to be abandoned and the availability of judicial remedy is not to be accordingly restricted.State and an express affirmation of the unwritten rule effectively insulating it from the jurisdiction of courts. On the contrary x x x the doctrine only conveys. And because the activities of states have multiplied. a sovereign is exempt from suit. NLRC. the general law waiving the immunity of the state from suit is found in Act No. NLRC..e. Nov.” Implied consent. we held: “The traditional rule of immunity exempts a State from being sued in the courts of another State without its consent or waiver. in any case. in effect. it has been necessary to distinguish them . therefore. the rules of International Law are not petrified. that a continued adherence to the doctrine of non-suability cannot be deplored. which requires that all money claims against the government must first be filed with the Commission on Audit which must act upon it within sixty days. not too infrequently. In this jurisdiction. This rule is a necessary consequence of the principle of independence and equality of States. where the questioned transaction dealt with the improvements on the wharves in the naval installation at Subic Bay. 327. Nov. as amended by Presidential Decree No.between sovereign and governmental acts (jure imperii) and private. but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends. on the other hand. 1993 [Vitug]) Is the rule absolute. However. is not really absolute for it does not say that the state may not be sued under any circumstances. We have had occasion to explain in its defense.e. “the state may not be sued without its consent. 227 SCRA 693. True. 3083. 11. is that without any qualification? What is the Restrictive Doctrine of State Immunity from Suit? This rule is not without qualification. The State's consent may be given either expressly or impliedly. As has been aptly observed by Justice Holmes. 11. Ruiz (136 SCRA 487). that the State may not be sued at all? How may consent of the State to be sued given? The rule. which could serve as a basis of civil action between the private parties. thus opening itself to a counterclaim or when it enters into a contract. is deemed to have tacitly given its consent to be sued. they are constantly developing and evolving. distinction must still be made between one which is executed in the exercise of its sovereign function and another which is done in its proprietary capacity. (Amado J.R. this Court has pronounced that an officer cannot shelter himself by the plea that he is a public agent acting under the color of his office when his acts are wholly without authority. 2000. 7 .” (Department of Agriculture v. acts (jure gestionis). 1993. the United Kingdom and other states in Western Europe. its commercial activities or economic affairs. the suit is a suit against the US government and. Swift. this doctrine still found application. will not prosper for lack of jurisdiction following the doctrine of sovereign equality of all States. Public officials are not exempt.]) Arigo v. therefore. The restrictive application of State immunity is now the rule in the United States. Japan. Lansang v. an American naval vessel when it ran aground there in the course of its voyage to Indonesia from its base in Okinawa. although the acts complained of may have been committed while he occupied a public position. NLRC. indisputably a function of the government of the highest order. [Quisumbing]) As early as 1954. such as appropriation of the amount necessary to pay the damages awarded to the plaintiff. 11. from liability arising from acts committed in bad faith. The result is that State immunity now extends only to acts jure imperii. In effect. (Republic v. The doctrine of state immunity from suit applies to complaints filed against public officials for acts done in the performance of their duties. March 19. Sandiganbayan. in their personal capacity. Jr. Stated differently. G. Sandoval. 227 SCRA 693. Xxx The restrictive application of State immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign. No. 1993 [Vitug]) When is a suit against a public official deemed to be a suit against the State? Discuss. Nov. It does not apply where the contracts relate to the exercise of its sovereign functions. The rule is that the suit must be regarded as one against the State where the satisfaction of the judgment against the public official concerned will require the State itself to perform a positive act. this Court saying that immunity from suit cannot institutionalize irresponsibility and non-accountability nor grant a privileged status not claimed by any other official of the Republic. CA. should be dismissed. 220 SCRA 124. Until recently in 1991 (Chavez v. Feb. 102667. 193 SCRA 282 [1991]). The rule does not apply where the public official is charged in his official capacity for acts that are unlawful and injurious to the rights of others. In this case the projects are an integral part of the naval base which is devoted to the defense of both the United States and the Philippines. a State may be said to have descended to the level of an individual and can thus be deemed to have tacitly given its consent to be sued only when it enters into business contracts. Neither does it apply where the public official is clearly being sued not in his official capacity but in his personal capacity. 23. En Banc [Campos. 2nd Div. 735 SCRA 102 (2014) A petition filed for the issuance of a Writ of Kalikasan directed against the Commander of the US Pacific Fleet for the destruction of our corrals in Tubbataha reef (a protected area system under the NIPAS [National Integrated Protected Areas System] and a UN declared World Heritage Site because of its rich marine bio-diversity) in the Sulu Sea caused by the USS Guardian. they are not utilized for nor dedicated to commercial or business purposes. The adverse judgment rendered against the UP in a suit to which it had impliedly consented was not immediately enforceable by execution against the UP. No. Government Funds may not be subject to Garnishment The funds of the UP are government funds that are public in character. the only request is that a panel of experts composed of scientists be constituted to assess the total damage caused to our corrals there. 23 August 2012. reiterating our decree in the landmark case of Ministerio v. which request is not unreasonable. They include the income accruing from the use of real property ceded to the UP that may be spent only for the attainment of its institutional objectives. the demand for compensation for the destruction of our corrals in Tubbataha reef has been rendered moot and academic. Dizon. that there be fidelity to legal norms on the part of officialdom if the rule of law were to be maintained. respondent may not validly invoke the Royal Prerogative of Dishonesty and conveniently hide under the State’s cloak of invincibility against suit. the rule. as expressed by the US embassy officials in the Philippines. After all. is not absolute for it does not say that the state may not be sued under any circumstances. the US already signified its intention to pay damages. Thus. he shall be tried by Philippine courts under Philippine laws. The waiver of immunity from suit of the US under the Visiting Forces Agreement (VFA) applies only to waiver from criminal jurisdiction. otherwise known as the Royal Prerogative of Dishonesty.R. in Amigable v. because suability of the State did not necessarily mean its liability. shred the protective shroud which shields the state from suit. To be sure. 679 SCRA 54.” It is just as important. 171182. and allow itself to be an instrument in the perpetration thereof. Incidentally. in effect. invoking the constitutional doctrine of Non-suability of the State. in this particular instance. (UP v. True enough. Although the Amigable and Ministerio cases generously tackled the issue of the State’s immunity from suit vis a vis the payment of just compensation for expropriated property. the funds subject of this action could not be validly made the subject of writ of execution or garnishment. this Court nonetheless finds the doctrine enunciated in the aforementioned cases applicable to the instant controversy. this Court – as the staunch guardian of the citizens’ rights and welfare – cannot sanction an injustice so patent on its face. G. Respondent’s argument is misplaced inasmuch as the principle of State immunity finds no application in the case before us. Hence. received and accepted benefits from said housing project and reaped the fruits of petitioners-contractors’ honest toil and labor. [Bersamin]) The Doctrine should not be used to perpetrate an Injustice on a Citizen To our mind. 1 st Div. where both the government and the public have. Also. so that if an American soldier commits an offense in the Philippines. Justice and equity sternly demand that the State’s cloak of invincibility against suit be shred in this particular instance. Under these circumstances. for years. Cuenca. considering that the ends of justice would be subverted if we were to uphold. in any case. The waiver did not include the special civil action for the issuance of a Writ of Kalikasan. it would be the apex of injustice and highly inequitable for us to defeat petitioners-contractors’ right to be duly compensated for actual work performed and services rendered. considering that this principle yields to certain settled exceptions. the State’s immunity from suit. and that petitioners-contractors be duly compensated – on the basis of quantum meruit – for construction done on the public works 8 . if not more so. CFI of Cebu that “the doctrine of governmental immunity from suit cannot serve as an instrument for perpetrating an injustice on a citizen. respondent likewise argues that the State may not be sued in the instant case. this Court. No. and embodied in the due process and equal protection clauses of the Bill of Rights.” and the “general principles against discrimination” which is embodied in the “Universal Declaration of Human Rights. Poe-Llamanzares v.e. The transformation method requires that an international law be transformed into a domestic law through a constitutional mechanism such as local legislation. the International Covenant on Economic. On the other hand. and a psychological element known as the opinion juris sive necessitates (opinion as to law or necessity).housing project. [Buena]) FUNDAMENTAL PRINCIPLES AND STATE POLICIES (Article II. At this time. G R. the International Convention on the Elimination of All Forms of Racial Discrimination. Mar. the general principles of fairness and justice. i. Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it. Article II of the 1987 Constitution provides that the Philippines adopts the generally accepted principles of international as part of the laws of the land. 2008.. 1987 Constitution) The Philippines Adherence to the Doctrine of Incorporation Section 2. an international law can become part of the sphere of domestic law either by transformation or incorporation. which petitioner declares to reflect binding principles of international law. March 8. 183591.16.” These are the same core principles which underlie the Philippine Constitution itself. we are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory on the Philippines. form part of the laws of the land even if they do not derive from treaty stipulations. binding upon the Philippines? We refer now to the petitioner’s invocation of the Yogyakarta Principles (the Application of International Human Rights Law In Relation to Sexual Orientation and Gender Identity). therefore. in fact. There are declarations and obligations outlined in 9 . widespread. Under the 1987 Constitution. Generally accepted principles of international law include international customs as evidence of a general practice accepted as law. and consistent practice on the part of States. G. En Banc [Perez]) The Right to Self-Determination of Peoples This right to self-determination of peoples has gone beyond mere treaty or convention. 2016. October 14. v. (The Province of North Cotabato v. 2 nd Div. Social and Cultural Rights. generally accepted principles of international law. 221697. by virtue of the incorporation clause of the Constitution. 2001. International customary rules are accepted as binding as a result from the combination of two elements: the established. 354 SCRA 566. it has now been elevated into the status of a generally accepted principle of international law. No. “General principles of law recognized by civilized nations” are principles “established by a process of reasoning” or judicial logic. (Mary Grace Natividad S. En Banc [Carpio-Morales]) The Yogyakarta Principles: Have they evolved into a generally accepted principle of international law and. This provision is an affirmation of our adherence to the doctrine of incorporation in international law. the Convention Against Discrimination in Education. The Government of the Republic of the Philippines Peace Panel.R.” such as “general principles of equity. (EPG Construction Co. 111) Concerning Discrimination in Respect of Employment and Occupation. 568 SCRA 402. Vigilar. COMELEC. and general principles of law recognized by civilized nations. the Convention (No. based on principles which are “basic to legal systems generally. 2nd par. No. without proper hearing and evidence. these Yogyakarta Principles. the SC ruled that this provision is self-executing. This is undisputable because before conception.. rather than non-self-executing. the Constitution affords protection to the unborn from conception. April 8. the whole Constitution shall remain dormant and be captives of Congress. G. privileges and concessions covering the national economy and patrimony. it was agreed upon that the individual members of the Court could express their own views on this matter. which could have disastrous consequences. 10 . the issue of when life begins. The problem has arisen because. there is no unborn to speak of. 190582. En Banc [Del Castillo]) The Filipino First Policy In the grant of rights.R. For said reason. COMELEC. originates from the constitutional protection which expressly provided to afford protection to life and guarantee religious freedom. Art. but rather. GSIS. there are quarters who have conveniently disregarded the scientific fact that conception is reckoned from fertilization. They are waving the view that life begins at implantation. When Does Life Begin? Majority of Members of the Court are of the position that the question of when life begins is a scientific and medical issue that should not be decided. the ponente. 618 SCRA 32.” we refer not only to the natural resources of the Philippines but as well as the cultural heritage of the Filipino people. 2010.” Thus. Also. During the deliberations. it is no surprise that the Constitution is mute as to any proscription prior to conception or when life begins. 267 SCRA 408 (1997) (Bellosillo) In this case. In this regard. Hence.said Principles which are not reflective of the current state of international law. X x x Xxx Using even the most liberal of lenses. amazingly. when we speak of “national patrimony. the State shall give preference to qualified Filipinos (Sec. consisting of a declaration formulated by various international law professors. however. Xxx Textually. The Right to Life of the Unborn from Conception The Philippine national population program has always been grounded on two cornerstone principles: “principle of no-abortion” and the “principle of non-coercion. is of the strong view that life begins at fertilization. at this stage. in this case the SC held that “patrimony” simply means “heritage.” These principles are not merely grounded on administrative policy. It was also in this case where the Court clarified that the rule now is that all provisions of the Constitution are presumed to be self-executing. 10. XII of the Constitution) Manila Prince Hotel v. and do not find basis in any of the sources of international law enumerated under Article 38(1) of the Statute of the International Court of Justice. are – at best – de lege refenda – and do not constitute binding obligations on the Philippines. the Court explained that if a contrary presumption is adopted. Elaborating. X x x (Ang LADLAD LGBT Party v. and the responsibilities of human beings to safeguard the common environment. defines the rights of the people to be involved in the development of their economies. Paquito N. v. Ochoa. et al. Greenpeace Southeast Asia (Philippines). the precautionary principle has served as the normative guideline for policymaking by many national governments. upon fertilization or upon the union of the male sperm and the female ovum. G. Conversely. as described and defined by all reliable and reputable sources. however. En Banc [Mendoza]) The Right to Health and to a Balanced and Healthful Ecology in Accord with the Rhythm and Harmony of Nature International Service for the Acquisition of Agri-Biotech Applications. X x x Equally apparent. The Cartagena Protocol on Biosafety to the Convention on Biological Diversity. which indicates that lack of scientific certainty is no reason to postpone action to avoid potentially serious or irreversible harm to the environment. et al. 2015. which reads: In order to protect the environment. contraceptives that actually prevent the union of the male sperm and the female ovum. 2014. et al. GR No. Hon. No. establishes an international regime primarily aimed at regulating trade in GMOs intended for release into the 11 . From the discussions above. Xxx From the deliberations above-quoted. Principle 15 codified for the first time at the global level the precautionary approach. Inc. that is. it is apparent that the framers of the Constitution emphasized that the State shall provide equal protection to both the mother and the unborn child from the earliest opportunity of life. (James M. the outcome of the 1992 United Nations Conference on Environment and Development held in Rio de Janeiro. The Rio Declaration on Environment and Development. It states that the long term economic progress is only ensured if it s linked with the protection of the environment. lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. and those that similarly take action prior to fertilization should be deemed non-abortive. Imbong. the precautionary approach was codified under Principle 15. In the following decades. is that the Framers of the Constitution did not intend to ban all contraceptives for being unconstitutional. finalized and adopted in Montreal on January 29. Jr.. 209271. 2000. En Banc (Villarama. and thus. the traditional meaning of the word “conception” which. Xxx In conformity with the above principle.. Jr. the precautionary approach shall be widely applied by States according to their capabilities.) The Precautionary Principle The precautionary principle originated in Germany in the 1960s. v.R. December 8. April 8. means that life begins at fertilization. contraceptives that kill or destroy the fertilized ovum should be deemed an abortive and thus prohibited. 204819. It has been incorporated in various international legal instruments. constitutionally permissible. expressing the normative idea that governments are obligated to “foresee and forestall” harm to the environment.. Where there are threats of serious or irreversible damage. For the first time. environment, in accordance with Principle 15 of the Rio Declaration on Environment and Development. X x x The precautionary principle applies when the following conditions are met: 1. There exist considerable scientific uncertainties; 2. There exist scenarios (or models) of possible harm that are scientifically reasonable (that is based on some scientifically plausible reasoning); 3. Uncertainties cannot be reduced in the short term without at the same time increasing ignorance of other relevant factors by higher levels of abstraction and idealization; 4. The potential harm is sufficiently serious or even irreversible for present or future generations or otherwise morally unacceptable; 5. There is a need to act now, since effective counteraction later will be made significantly more difficult or costly at any later time. The Rules (of Procedure for Environmental Cases) likewise incorporated the principle in Part V, Rule 20, which states: PRECAUTIONARY PRINCIPLE Sec. 1. Applicability. – When there is a lack of full scientific certainty in establishing a causal link between human activity and environmental effect, the court shall apply the precautionary principle in resolving the case before it. The constitutional right of the people to a balanced and healthful ecology shall be given the benefit of the doubt. SEC. 2. Standards for application. – In applying the precautionary principle, the following factors, among others, may be considered: (1) threats to human life or health; (2) inequity to preset or future generations; or (3) prejudice to the environment without legal consideration of the environmental rights of those affected. Under this Rule, the precautionary principle finds direct application in the evaluation of evidence in cases before the courts. The precautionary principle bridges the gap in cases where scientific certainty in factual findings cannot be achieved. By applying the precautionary principle, the court may construe a set of facts as warranting either judicial action or inaction, with the goal of preserving and protecting the environment. This may be further evinced from the second paragraph where bias is created in favor of the constitutional right of the people to a balanced and healthful ecology. In effect, the precautionary principle shifts the burden of evidence of harm away from those likely to suffer harm and onto those desiring to change the status quo. An application of the precautionary principle to the rules on evidence will enable courts to tackle future environmental problems before ironclad scientific consensus emerges. (Annotation to the Rules of Procedure for Environmental Cases) For purposes of evidence, the precautionary principle should be treated as a principle of last resort, where application of the regular Rules of Evidence would cause in an inequitable result for the environmental plaintiff – (a) settings in which the risks of harm are uncertain; (b) settings in which harm might be irreversible and what is lost is irreplaceable; and (c) settings in which the harm that might result would be serious. When these features – uncertainty, the possibility of irreversible harm, and the possibility of serious harm – coincide, the case for the precautionary principle is strongest. When in doubt, cases must be resolved in favor of the constitutional right to a balanced and healthful ecology. Parenthetically, judicial adjudication is one of the strongest fora in which the precautionary principle may find applicability. 12 (International Service for the Acquisition of Agri-biotech Applications, Inc. v. Greenpeace Southeast Asia [Philippines], et al., GR No. 209271, December 8, 2015, En Banc [Villarama]) Application of the Precautionary Principle to the Bt talong Field Trials in the Philippines Assessing the evidence on record, as well as the current state of GMO research worldwide, the Court finds all the three conditions present in this case – uncertainty, the possibility of irreversible harm and the possibility of serious harm. Xxx Alongside the aforesaid uncertainties, the non-implementation of the NBF (National Biosafety Framework) in the crucial stages of risk assessment and public consultation, including the determination of the applicability of the EIS (Environmental Impact Statement) requirements to GMO field testing, are compelling reasons for the application of the precautionary principle. There exists a preponderance of evidence that the release of GMOs into the environment threatens to damage our ecosystems and not just the field trial sites, and eventually the health of our people once the Bt eggplant are consumed as food. Adopting the precautionary approach, the Court rules that the principles of the NBF need to be operationalized first by the coordinated actions of the concerned departments and agencies before allowing the release into the environment of genetically modified eggplant. The more prudent course is to immediately enjoin the Bt talong field trials and approval for its propagation or commercialization until the said government offices shall have performed their respective mandates to implement the NBF. We have found the experience of India in the Bt brinjal field trials – for which an indefinite moratorium was recommended by a Supreme Court-appointed committee till the government fixes regulatory and safety aspects – as relevant because majority of Filipino farmers are also small-scale farmers. Further, the precautionary approach entailed inputs from all stakeholders, including the marginalized farmers, not just the scientific community. This proceeds from the realization that acceptance of uncertainty is not only a scientific issue, but is related to public policy and involves an ethical dimension. For scientific research alone will not resolve all the problems, but participation of different stakeholders from scientists to industry, NGOs, farmers and the public will provide a needed variety of perspective foci, and knowledge. (International Service for the Acquisition of Agri-biotech Applications, Inc. v. Greenpeace Southeast Asia (Philippines), et al., GR No. 209271, December 8, 2015, En Banc [Villarama]) Field Trial Proposal of Bt (Bacillus thuringiensis) Talong The crystal toxin genes from the soil bacterium Bacillus thuringiensis (Bt) were incorporated into the eggplant (talong) genome to produce the protein CrylAc which is toxic to the target insect pests. CrylAc protein is said to be highly specific to lepidopteran larvae such as the fruit and shoot borer (FSB), the most destructive insect pest of eggplant. (International Service for the Acquisition of Agri-biotech Applications, Inc. v. Greenpeace Southeast Asia (Philippines), et al., GR No. 209271, December 8, 2015, En Banc [Villarama]) Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al., G.R. No. 189185, August 16, 2016, En Banc (Bersamin) The Precautionary Principle The principle of precaution originated as a social planning principle in Germany. In the 1980’s, the Federal Republic of Germany used the Vorsogeprinzip (“foresight principle”) to 13 justify the implementation of vigorous policies to tackle acid rain, global warming and pollution of the North Sea. It has since emerged from a need to protect humans and the environment from increasingly unpredictable, uncertain, and unquantifiable but possibly catastrophic risks such as those associated with Genetically Modified Organisms and climate change. The oft-cited Principle 15 of the 1992 Rio Declaration on Environment and Development (1992 Rio Agenda) first embodied this principle x x x. In this jurisdiction, the principle of precaution appearing in the Rules of Procedure for Environmental Cases (A.M. No. 09-6-8-SC) involves matters of evidence in cases where there is lack of full scientific certainty in establishing a causal link between human activity and environmental effect. In such an event, the courts may construe a set of facts as warranting either judicial action or inaction with the goal of preserving and protecting the environment. Application of the Precautionary Principle It is notable x x x that the precautionary principle shall only be relevant if there is concurrence of three elements, namely: uncertainty, threat of environmental damage and serious or irreversible harm. In situations where the threat is relatively certain, or that the causal link between an action and environmental damage can be established, or the probability of occurrence can be calculated, only preventive, not precautionary measures, may be taken. Neither will the precautionary principle apply if there is no indication of a threat of environmental harm, or if the threatened harm is trivial or easily reversible. In Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al., (G.R. No. 189185, August 16, 2016, En Banc [Bersamin]), it was argued that the Ordinance enacted by the City of Davao prohibiting aerial spraying of pesticides is justified since it will protect the health of residents and the environment against the risks posed by aerial drift of chemicals applying the precautionary principle. The Court did not find the presence of the elements for this principle to apply, thus, it held: We cannot see the presence of all the elements. To begin with, there has been no scientific study. Although the precautionary principle allows lack of full scientific certainty in establishing a connection between the serious or irreversible harm and the human activity, its application is still premised on empirical studies. Scientific analysis is still a necessary basis for effective policy choices under the precautionary principle. Precaution is a risk management principle invoked after scientific inquiry takes place. This scientific stage is often considered synonymous with risk assessment. As such, resort to the principle shall not be based on anxiety or emotion, but from a rational decision rule, based on ethics. As much as possible, a complete and objective scientific evaluation of the risk to the environment or health should be conducted and made available to decision-makers for them to choose the most appropriate course of action. Furthermore, the positive and negative effects of an activity are also important in the application of the principle. The potential harm resulting from certain activities should always be judged in view of the potential benefits they offer, while the positive and negative effects of potential precautionary measures should be considered. The only study conducted to validate the effects of aerial spraying appears to be the Summary Report on the Assessment and Fact-Finding Activities on the Issue of Aerial Spraying in Banana Plantations. Yet, the fact-finding team that generated the report was not a scientific study that could justify the resort to the precautionary principle. In fact, the Sangguniang Bayan ignored the findings and conclusions of the fact-finding team x x x. 14 “claim” that they have the legal standing to file this action since they stand to be benefited or injured by the judgment in this suit. 46. under the concept of stipulation pour autrui. the need to give the Resident Marine Mammals legal standing has been eliminated by our Rules. Article XII. Resident Marine Mammals of the Protected Seascape Tanon Strait. Procedural Issue The Resident Marine Mammals. 2015. In this regard. En Banc (Leonardo-De Castro) In these consolidated petitions. 1987 Constitution) Resident Marine Mammals of the Protected Seascape Tanon Strait. as a steward of nature. v. The Stewards x x x having shown in their petition that there may be possible violations 15 . Rules for the Enforcement of Environmental Laws. and Main Issue: Legality of Service Contract No. through the Stewards. It is worth noting here that the Stewards are joined as real parties in the Petition and not just in representation of the named cetacean species. Secretary Angelo Reyes. Xxx In light of the foregoing. Accordingly. They also assert their right to sue for the faithful performance of international and municipal environment laws created in their favor and for their benefit.. The Court ruled instead that the issue of whether these marine mammals have locus standi to file the petition had been eliminated because of Section 5. We should not apply the precautionary approach in sustaining the ban against aerial spraying if little or nothing is known of the exact or potential dangers that aerial spraying may bring to the health of the residents within and near the plantations and to the integrity and balance of the environment. and other cetacean species) but were joined by human beings as “stewards of nature. GR Nos. Secretary Angelo Reyes. v. No. for lack of scientific data supporting a ban on aerial spraying. actually the SC did not rule squarely on this issue. et al. Ordinance No. which allow any Filipino citizen. they propound that they have a right to demand that they be accorded the benefits granted to them in multilateral international instruments that the Philippine Government had signed. to bring to suit to enforce our environmental laws. dolphins.” Service Contracts with Foreign Corporations for Exploration of Oil and Petroleum Products (Paragraph 4. April 21. Factoran. Are these marine mammals the proper parties to file the petition? In this case. these marine mammals were joined by human beings as “stewards of nature. 180771 and 181527. G. 0309-07 should be struck down for being unreasonable. in their petition. April 21. En Banc (Leonardo-De Castro) Petitioners in this case were marine mammals (toothed whales. Jr. 180771.R. which allows any citizen to file a petition for the enforcement of environmental laws (Citizen’s Suit) and. et al. citing Oposa v.. et al. 2015. this Court has determined that the various issues raised by the petitioners may be condensed into two primary issues: Procedural Issue: Locus standi of the Resident Marine Mammals and Stewards x x x. Section 2. It is dangerous to quickly presume that the effects of aerial spraying would be adverse even in the absence of evidence. et al. portions of the deliberations of the members of the Constitutional Commission (ConCom) to show that in deliberating on paragraph 4. the foreign contractors provide capital. actively exercises control and supervision over the entire operation. 46 vis-à-vis Section 2. we established that paragraph 4. But unlike those of the 1973 variety. presumably to attain a certain uniformity in provisions to avoid the possible insertion of terms disadvantageous to the country. it will have been vetted several times over at different levels to ensure that it conforms to law and can withstand public scrutiny. Article XII. 1. In La Bugal. and managerial expertise in the creation and operation of large-scale mining/extractive enterprises. and the government. the President shall report it to Congress to give that branch of government an opportunity to look over the agreement and interpose timely objections. Section 2 of Article XII. Section 2. conditions and requirements.of laws concerning the habitat of the Resident Marine Mammals. we held that the deletion of the words “service contracts” in the 1987 Constitution did not amount to a ban on them per se. the new ones are between foreign corporations acting as contractors on the one hand. The grant thereof is subject to several safeguards. Agreements involving Technical or Financial Assistance are Service Contracts with Safeguards From the foregoing. referred to in paragraph 4. technology and technical know-how. this Court finds that SC-46 is indeed null and void for noncompliance with the requirements of the 1987 Constitution. MGB). development. ` Adhering to the aforementioned guidelines. X x x 16 . and utilization of indigenous petroleum in the Philippines are governed by Presidential Decree No. In summarizing the matters discussed in the ConCom. (3) Within thirty days of the executed agreement. In fact. petroleum and other mineral oils. the government as principal or “owner” of the works. through its agencies (DENR. supposedly before an agreement is presented to the President for signature. Article XII of the 1987 Constitution This Court has previously settled the issue of whether service contracts are still allowed under the 1987 Constitution. 87 or the Oil Exploration and Development Act of 1972. we quoted in length. if any. The General Law on Oil Exploration The disposition. are therefore declared to possess the legal standing to file this petition. and on the other. On the Legality of Service Contract No. is the exception to paragraph 1. exploration. exploitation. we are impelled to conclude that the phrase agreements involving either technical or financial assistance. with the safeguards in place. among which are these requirements: (1) The service contract shall be crafted in accordance with a general law that will set standard or uniform terms. In the new service contacts. (2) The President shall be the signatory of the government because. The following are the safeguards this Court enumerated in La Bugal: Such service contracts may be entered into only with respect to minerals. in that decision. they were actually referring to service contracts as understood in the 1973 Constitution. are in fact service contracts. albeit with safety measures to eliminate or minimize the abuses prevalent during the martial law regime. which will render a contract unenforceable but not void. X x x Consequently. President was not the signatory to SC-46 and the same was not submitted to Congress While the Court finds that Presidential Decree No. 915 [1998]). While the requirements in executing service contracts in paragraph 4. unless disapproved or reprobated by the Chief Executive presumably the acts of the Chief Executive. and that Congress be notified of such contract. X x x 17 . x x x the exploitation and utilization of this energy resource in the present case may be allowed only through a law passed by Congress. Section 2 of Article XII of the 1987 Constitution seem like mere formalities. not just in an ordinary statute. conditions. Perez. performed and promulgated in the regular course of business. Article XII of the 1987 Constitution requires that the President himself enter into any service contract for the exploration of petroleum. we find no merit in petitioners’ contention that SC-46 is prohibited on the ground that there is no general law prescribing the standard or uniform terms. But note must be made at this point that while Presidential Decree No. before the adoption of the 1987 Constitution. 87 may serve as the general law upon which a service contract for petroleum exploration and extraction may be authorized. Vicente S. Contrary to the petitioners’ argument. 87. As SC-46 was executed in 2004.” Thus. Presidential Decree No. its terms should have conformed not only to the provisions of Presidential Decree No. 87 is sufficient to satisfy the requirement of a general law. all executive and administrative organizations are adjuncts of the Executive Department. although enacted in 1972. In Joson v. 888. Torres (352 Phil. are. Under this doctrine. 2.. but also those of the 1987 Constitution. we explained the concept of the alter ego principle or the doctrine of qualified political agency and its limits x x x. cannot apply in this case. the heads of the various executive departments are assistants and agents of the Chief Executive. that the President be a signatory to SC-46. and requirements for service contracts involving oil exploration and extraction. This Court could not simply assume that while Presidential Decree No. public respondents have neither shown nor alleged that Congress was subsequently notified of the execution of such contract. they. remains to be a valid law unless otherwise repealed x x x. in reality.” their acts are also that of then President Macapagal-Arroyo’s. Moreover. 87. Jr. and. take on a much bigger role. if not complied with. Public respondents’ implied argument that based on the “alter ego principle. As we have explained in La Bugal. the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments. but in the fundamental law. the absence of the two other conditions. it had been impliedly repealed. since the Tanon Strait is a NIPAS (National Integrated Protected Areas System) area. they are the safeguards put in place by the framers of the Constitution to “eliminate or minimize the abuses prevalent during the martial law regime. contrary to the said constitutional requirement. Section 2. the non-observance of which will nullify the contract. SC-46 appeared to have been entered into and signed only by the DOE (Department of Energy) through its then Secretary. except in cases where the Chief Executive is required by the Constitution or law to act in person or the exigencies of the situation demand that he act personally. and the acts of the Secretaries of such departments. they are not just mere formalities. renders it null and void. They are requirements placed. 87 had not yet been expressly repealed. which recognizes the establishment of a single executive. X x x Paragraph 4. These service contracts involving the exploitation. absent proof of her disapproval. petroleum. Art. its aims and objectives. the public respondents have failed to show that the President had any participation in SC-46. and how best to attain them . XIV. development. development. On the legality of Service Contract No. must fail as the requirement that the President herself enter into these kinds of contracts are embodied not just in any ordinary statute. and utilization of our natural resources are of paramount interest to the present and future generations. SC-46 was not executed for the mere purpose of gathering information on the possible energy resources in the Tanon Strait as it also provides for the parties’ rights and obligations relating to extraction and petroleum production should oil in commercial quantities be found to exist in the area. no energy resource exploitation and utilization may be done in said protected seascape. None of these circumstances is evident in the case at bar. but in the Constitution itself. and utilization of our minerals. 5[2]. Said constitutional provision is not to be construed in a niggardly manner or in a grudging fashion. 87 may serve as the general law upon which a service contract for petroleum exploration and extraction may be authorized. While Presidential Decree No. obtain the President’s approval for the execution of any contract under said statute x x x. safeguards were put in place to insure that the guidelines set by law are meticulously observed and likewise to eradicate the corruption that may easily penetrate departments and agencies by ensuring that the President has authorized or approved of these service contracts herself. our Constitution requires that the President himself be the signatory of service agreements with foreign-owned corporations involving the exploration. This power cannot be taken lightly. Their argument that their acts are actually the acts of then President Macapagal-Arroyo. it must be shown that the government agency or subordinate official has been authorized by the President to enter into such service contract for the government. and other mineral oils. Even under the provisions of Presidential Decree No. Otherwise.free from outside coercion or interference save possibly when the overriding public welfare calls for some restraint. As this Court has held in La Bugal. since the Tanon Strait is a NIPAS (National Integrated Protected Areas System) area. Academic Freedom Academic freedom shall be enjoyed in all institutions of higher learning. In this case. now the DOE (Department of Energy). (Sec. the exploitation and utilization of this energy resource in the present case may be allowed only through a law passed by Congress. 18 . 46 vis-à-vis Other Laws Xxx Moreover. it should be at least shown that the President subsequently approved of such contract explicitly. 87. 87. it is required that the Petroleum Board. It has a wide sphere of autonomy certainly extending to the choice of students. Since there is no such law specifically allowing oil exploration and/or extraction in the Tanon Strait. 1987 Constitution) Academic freedom of educational institutions has been defined as the right of the school or college to decide for itself. Hence. Even if we were inclined to relax the requirement in La Bugal to harmonize the 1987 Constitution with the aforementioned provision of Presidential Decree No. No. 27 May 1993). 227 SCRA 595-597.” but likewise “who may be admitted to study. G.” (Isabelo. Article VI. the law must be complete in all its terms and conditions when it leaves the legislature such that when it reaches the delegate. Inc. or students violating “School Rules on Discipline.A. this Court cited with approval the formulation made by Justice Felix Frankfurter of the essential freedoms subsumed in the term “academic freedom” encompassing not only “the freedom to determine x x x on academic grounds who may teach. The second test mandates adequate guidelines or limitations in the law to determine the boundaries of the delegate’s authority and prevent the delegation from running riot. 99327. 1994 [Nocon]) What are the essential freedoms subsumed in the term “academic freedom”? In Ateneo de Manila University v. (Jose Jesus M.. In a presidential form of government. Court of Appeals. Under the first test. Capulong (G. Jr. (Section 1. in a parliamentary government. Disini.That would be to frustrate its purpose and nullify its intent. the only thing he will have to do is to enforce it. 2014. et al. v. a Bicameral Conference Committee is capable of producing unexpected results – results which sometimes may even go beyond its own mandate. The Secretary of Justice. what may be taught (and) how it shall be taught. 1987 Constitution) The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives. there is the observance of the doctrine of separation of powers..R. 774-775. Perpetual Help College of Rizal. En Banc [Vitug]) THE STRUCTURE OF GOVERNMENT The main distinction between a presidential form of government and a parliamentary form of government In a presidential form of government. Inc. except to the extent reserved to the people by the provision on initiative and referendum. 6735 (The Initiative and Referendum Law) The Principle of Bicameralism The Bicameral Conference Committee It is a mechanism for compromising differences between the Senate and the House of Representatives. Tests of a Valid Delegation of Power In order to determine whether there is undue delegation of legislative power. or a laywoman seeking admission to a seminary. By the nature of its function. instead of separation of powers. the Prime Minister is elected not by the people at large but by members of Parliament. the President is elected by the people at large.R. et al. 230 SCRA 761. Jr. Nov. (University of San Agustin. No. 1987 Constitution) Is legislative power exclusively vested in the Congress? R. there is the union of the executive and legislative branches. En Banc [Abad]) The Legislative Department (Article VI. 11. Secretary of Finance) 19 . Feb.” We have thus sanctioned its invocation by a school in rejecting students who are academically delinquent. March 7. the Court has adopted two tests: the completeness test and the sufficient standard test... in a parliamentary government. (Tolentino v. v. 8. v. 1993. No. 203335. and sectoral parties or organizations shall not be disqualified if some of their nominees are disqualified. 2013. v. and (3) sectoral parties or organizations. and another for his or her party-list group or organization of choice. the party-list system is intended to democratize political power by giving political parties that cannot win in legislative district elections a chance to win seats in the House of Representatives. The nominees of national and regional parties or organizations must be bona fide members of such parties or organizations.R. et al. handicapped. Inc. v. En Banc [Carpio]) 20 .R. veterans. Inc. Political parties can participate in party-list elections provided they register under the party-list system and do not field candidates in legislative district elections. G. the COMELEC shall adhere to the following parameters: 1. indigenous cultural communities. The sectors that lack “well-defined political constituencies” include professionals. peasant. A majority of the members of sectoral parties or organizations that represent the “marginalized and underrepresented” must belong to the “marginalized and underrepresented” sector they represent. The voter elects two representatives in the House of Representatives: one for his or her legislative district. a majority of the members of sectoral parties or organizations that lack “well-defined political constituencies” must belong to the sector they represent. the elderly.. No. 2013. 2. Simply put. 3. National. COMELEC. 694 SCRA 477. Similarly. fisherfolk. 203766. 694 SCRA 477. (2) regional parties or organizations. Article VI of the 1987 Constitution) The Party-List System The 1987 Constitution provides the basis for the party-list system of representation. COMELEC. April 2. whether major or not. provided that they have at least one nominee who remains qualified. regional. or must have a track record of advocacy for their respective sectors. 4. No.The Bills That Are Required to Originate Exclusively in the House of Representatives (Section 24. Sectoral parties or organizations may either be “marginalized and underrepresented” or lacking in “well-defined political constituencies. and overseas workers. (Atong Paglaum.” or that represent those who lack “well-defined political constituencies. The sectors that are “marginalized and underrepresented” include labor. women and the youth. 5. The nominees of sectoral parties or organizations that represent the “marginalized and underrepresented. April 2.” either must belong to their respective sectors. National parties or organizations and regional parties or organizations do not need to organize along sectoral lines and do not need to represent any “marginalized and underrepresented” sector. En Banc [Carpio]) Parameters to Determine Who May Participate in Party-List Elections In determining who may participate in the coming 13 May 2013 and subsequent party-list elections.. (Atong Paglaum. et al. and is linked to a political party through a coalition. G. Three different groups may participate in the party-list system: (1) national parties or organizations.” It is enough that their principal advocacy pertains to the special interest and concerns of their sector. 6. 203766. that fields candidates in legislative district elections can participate in party-list elections through its sectoral wing that can separately register under the party-list system. urban poor. A political party. The sectoral wing is by itself an independent sectoral party. 5. will violate the Constitution. fractional representation is not allowed is it will exceed the twenty (20) allocated seats for party- list representatives and. COMELEC. VI. the party-list representatives shall constitute twenty (20) percent of the total number of representatives.R. 694 SCRA 477. nd 5. 2010. therefore. they may still participate through their sectoral wing. 1987 Constitution). Art. v. Art. 2. The Inviolable Parameters to Determine the Winners in Party-list Elections are: 1. the twenty (20) percent allocation.” citing verses from the Bible and the Koran. However. that what is prohibited is the registration of a religious sect as a political party. i. 2nd par. 3. Based on this. based on the intent of the framers of the 1987 Constitution. is tainted with grave abuse of discretion as it violated the non-establishment clause of freedom of religion and. the three (3) . 190582.. In such a case. provided that the sectoral wing is registered separately as a political party in the COMELEC and is linked to the dominant political party through a coalition. COMELEC The religious sector is expressly prohibited from participating in party-list elections (Sec. Although. G. the Supreme Court clarified. for every four (4) district representatives..e.R. No. 1987 Constitution). No. Veterans Federation Party v. it can be inferred that although the party-list system is a social justice tool designed to have the marginalized and underrepresented sectors of society represented in the House of Representatives. 618 SCRA 32. 2 par. should be nullified. the ratio is 4:1. there is no prohibition against a priest running as a candidate. et al. Based on the foregoing. (Atong Paglaum. as an agency of the government.seat limit. including those under the party-list. Art. VI of the Constitution. and 4.. nonetheless. the COMELEC. therefore. they may not participate in party-list elections if they field candidates in district elections. Religious denominations and sects are even prohibited from being registered as political parties in the COMELEC (Sec. Commission on Elections.. however. the dominant political parties are not totally prohibited from participating in party-list elections. En Banc [Carpio]) Ang Bagong Bayani – OFW Labor Party v. as a rule. is not supposed to use religious standards in its decisions and actions. there should be one (1) party-list representative. April 8. April 2. G. IX-C. by way of an exception. COMELEC Under Sec. proportional representation 21 . In the computation of the number of seats allocated to party-list representatives. what should be done is simply to disregard the fraction. Under this non-establishment clause of freedom of religion. Ang Ladlad-LGBT Party v. Inc. 5. 203766. par. En Banc (Del Castillo) The act of the COMELEC of not allowing the registration of Ang Ladlad-LGBT Party as a political party to participate in party-list elections on the ground that its members are “immoral. 2013. the two (2) percent threshold. 2. No. Salaries. the continued operation of the two percent threshold for the distribution of the additional seats as found in the second clause of Section 11(b) of R. Legislative Supervision What is a Legislative Veto? 22 . They are also subject to the same term limitation of three years for a maximum of three consecutive terms. En Banc (Carpio) What was declared unconstitutional in this case was not the two (2) percent threshold itself.R.Barangay Association for National Advancement and Transparency (BANAT) v. The continued operation of the two percent threshold in the distribution of the additional seats frustrates the attainment of the permissive ceiling that 20% of the members of the House of Representatives shall consist of party-list representatives. No. July 2. 612 SCRA 375. 7941 is unconstitutional.A. the SC clarified: “We rule that. Legislative Scrutiny 2. et al.” Party-list Representatives and District Representatives have the same Rights. COMELEC. in computing the allocation of additional seats. 179271. Abayon v. They can participate in the making of laws that will directly benefit their legislative districts or sectors. ABAKADA Guro Party List v. G. and influence over. Nos. Categories of Oversight Powers and Functions 1. 189466 and 189506. Thus. G. This is intrinsic in the grant of legislative power itself to Congress. the continued application of the two (2) percent threshold in determining the additional seats that will be allocated to winners in party-list elections. No.. They have the same deliberative rights. Secretary Purisima) Post-enactment measures undertaken by Congress to enhance its understanding of. and integral to the system of checks and balances inherent in a democratic system of government. 11 February 2010. and emoluments. This Court finds that the two percent threshold makes it mathematically impossible to achieve the maximum number of available party list seats when the number of available party list seats exceeds 50. Legislative Investigation 3. 2009. “X x x “We therefore strike down the two percent threshold only in relation to the distribution of the additional seats as found in the second clause of Section 11(b) of R. COMELEC (Justice Reynato S. and Emoluments Once elected.R. Puno’s Separate Concurring Opinion. salaries.A. En Banc [Abad]) Oversight Powers and Functions of Congress MakalIntal v. 586 SCRA 210. but rather. (Daryl Grace J. the legislation it has enacted. The two percent threshold presents an unwarranted obstacle to the full implementation of Section 5(2). both the district representatives and the party-list representatives are treated in like manner. sectoral or group interests in the House of Representatives. Article VI of the Constitution and prevents the attainment of “the broadest possible representation of party. The Honorable House of Representatives Electoral Tribunal. 7941. The Pork Barrel System involves two (2) kinds of lump-sum. The DBM (Department of Budget and Management) lays down the guidelines for the disbursement of the fund. from the regulation of fund releases. In the final analysis. 24. either individually or collectively organized into committees. the Court defines the Pork Barrel System as the collective body of rules and practices that govern the manner by which lump-sum. based on its own judgment. discretionary funds from which they are able to fund specific projects which they themselves determine. including its members. 19. A disapproval by Congress. it has similarly violated the principle of non-delegability of 23 . 105-106. are utilized through the respective participations of the Legislative and Executive branches of government. (Section 29 [1]. insofar as it has conferred unto legislators the power of appropriation by giving them personal. budget execution comes under the domain of the Executive branch which deals with the operational aspects of the cycle including the allocation and release of funds earmarked for various projects.R. post- enactment authority in vital areas of budget execution. The Secretary of Budget and Management. the system has violated the principle of separation of powers. discretionary fund wherein legislators. and Second. Nov. Ochoa. G. to exercise the spending per se of the budget. Apr. non-oversight. there is the Presidential Pork Barrel which is herein defined as a kind of lump-sum. the Executive takes the wheel. discretionary fund which allows the President to determine the manner of its utilization. there is the Congressional Pork Barrel which is herein defined as a kind of lump-sum. (Belgica v. X x x the Court shall delimit the use of such term to refer only to the Malampaya Funds and the Presidential Social Fund. of an administrative regulation promulgated by an administrative body or agency. 2012. discretionary funds: First. (Lawyers against Monopoly and Poverty [LAMP] v. 2013. in varying gradations. insofar as it has allowed legislators to wield. The Power of Appropriation No money shall be paid out of the Treasury except in pursuance of an appropriations made by law. En Banc [Perlas-Bernabe]) The “Pork Barrel” System Declared Unconstitutional: Reasons The Court renders this Decision to rectify an error which has persisted in the chronicles of our history. 164987. No. 1987 Constitution) Under the Constitution. the appropriation act may then be susceptible to objection from the branch tasked to implement it. G. While the budgetary process commences from the proposal submitted by the President to Congress. No.R. by way of a Presidential veto. subject to the requirement that appropriations bills originate exclusively in the House of Representatives with the option of the Senate to propose or concur with amendments. 208566. the Court must strike down the Pork Barrel System as unconstitutional in view of the inherent defects in the rules within which it operates. discretionary funds. Article VI. the power of appropriation is vested in the Legislature. it is the latter which concludes the exercise by crafting an appropriation act it may deem beneficial to the nation. Thereafter. primarily intended for local projects. En Banc [Mendoza]) The “Pork Barrel” System Considering petitioners’ submission and in reference to its local concept and legal history. the implementation of payment schedules and up to the actual spending of the funds specified in the law. or by an oversight committee of Congress. 710 SCRA 1. This demonstrates the power given to the President to execute appropriation laws and therefore. are able to effectively control certain aspects of the fund’s utilization through various post-enactment measures and/or practices. Like any other piece of legislation. wisdom and purposes. To recount. Simply put. (2) The funds to be transferred are savings generated from the appropriations of their respective offices. it has flouted the prescribed procedure of presentment and. be authorized to augment any item in the general appropriations law for their respective offices from savings in other items in their respective appropriations. Araullo. the President of the Senate.R. however. denied the President the power to veto items.. 208566. (Section 25 [5]. On this score. 19. by law. and again. No. 312. G. must be made upon a concurrence of the following requisites.R. and (3) The purpose of the transfer is to augment an item in the general appropriations law for their respective offices. insofar as it has created a system of budgeting wherein items are not textualized into the appropriations bill. Exec. 2012 En Banc [Perlas-Bernabe]) The Senate Committees’ power of inquiry relative to PSR No. et al. The Court explained that such conferral of the legislative power of inquiry upon any committee of Congress must carry with it all powers necessary and proper for its effective discharge. et al. 710 SCRA 1. Ochoa.” it has once more transgressed the principle of non-delegability. et al. 2014. v. 728 SCRA 1. No. 455 has been passed upon and upheld in the consolidated cases of In the Matter of the Petition for Habeas Corpus of Camilo L. the Senate Committee cannot be said to have acted with grave abuse of discretion amounting to lack or in excess of jurisdiction when it submitted Committee Resolution No. Sabio which cited Article VI. et al. namely: (1) There is a law authorizing the President. Senate. the Speaker of the House of Representatives. Benigno Simeon C. Article VI. June 19. the Chief Justice of the Supreme Court. in the process. to intervene in affairs of purely local nature. Article VI of the 1987 Constitution The transfer of appropriated funds. an aspect of governance which they may be called to monitor and scrutinize. July 1. the Chief Justice of the Supreme Court. Sec. G. G. insofar as it has diluted the effectiveness of congressional oversight by giving legislators a stake in the affairs of budget execution. the Speaker of the House of Representatives. En Banc [Perlas- Bernabe]) The Power of Augmentation No law shall be passed authorizing any transfer of appropriations. v. (Maria Carolina P. the system has equally impaired public accountability. Nor can the Senate Committee be faulted for doing so on the very same day that the assailed resolution 24 . despite the existence of capable local institutions. it has likewise subverted genuine local autonomy. 160-161. given its constitutional mandate to conduct legislative inquiries. 1987 Constitution) Requisites for the valid transfer of appropriated funds under Section 25(5). Section 21 of the Constitution. insofar as it has conferred to the President the power to appropriate funds intended by law for energy- related purposes only to other purposes he may deem fit as well as other public funds under the broad classification of “priority infrastructure development projects. and the heads of Constitutional Commissions may. to be valid under Section 25(5). No.legislative power. insofar as it has authorized legislators. (Belgica. and the heads of the Constitutional Commissions to transfer funds within their respective offices. the President of the Senate. Paquito N. En Banc [Bersamin]) Congressional Investigations (PHILCOMSAT Holdings Corporation v. Nov. the President. 2013. Aquino III. 180308. Article VI of the Constitution.. who are national officers.R. 209287. Jr. the doctrine of executive privilege was recognized by this Court in Almonte v. Ermita Neri v. Moreover x x x the Decision in this present case hews closely to the ruling in Senate v. 2(b) of E. and that “the right to information does not extend to matters recognized as ‘privileged information’ under the separation of powers. otherwise. Thus. which was the subject of the three (3) questions propounded to petitioner Neri in the course of the Senate Committees’ investigation.was submitted. Chavez v. The wide latitude given to Congress with respect to these legislative inquiries has long been settled. Section 21 would be rendered pointless. it is best understood in light of how it has been defined and used in the legal literature of the United States. and discussions in closed-door Cabinet meetings.O. the courts. who invoked executive privilege on a specific matter involving an executive agreement between the Philippines and China. It has been used even prior to the promulgation of the 1986 Constitution. to wit: Executive Privilege The phrase “executive privilege is not new in this jurisdiction.” Similarly. Ermita reiterated this concept.” X x x In this jurisdiction. Presidential Commission on Good Government (PCGG). Article VI. Chavez. 564 SCRA 152. the courts. Even Senate v. The Court articulated in these cases that “there are certain types of information which the government may withhold from the public. En Banc (Leonardo-De Castro) There is a Recognized Presumptive Presidential Communications Privilege The Court. 4. Schwartz defines executive privilege as “the power of the Government to withhold information from the public. PEA. Ermita. Bengzon. Almonte used the term in reference to the same privilege subject of Nixon. diplomatic and other national security matters”. Vasquez. v. It quoted the following portion of the Nixon decision which explains the basis for the privilege: 25 . No. In this case.” that there is a “government privilege against public disclosure with respect to state secrets regarding military. There. the factual setting of this case markedly differs from that passed upon in Senate v. and the Congress. 464 does not obtain in this case. it was the President herself. Senate Committee on Accountability of Public Officers and Investigations. correspondences. by which the Court meant Presidential conversations. Senate Blue Ribbon Committee Senate v. and Chavez v. Ermita. 2008. among them Almonte v. Rozell defines it as “the right of the President and high-level executive branch officers to withhold information from Congress. and ultimately the public. Xxx The constitutional infirmity found in the blanket authorization to invoke executive privilege granted by the President to executive officials in Sec. through Executive Secretary Ermita. affirmed that the presidential communications privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution. Sept. the Court enumerated the cases in which the claims of executive privilege was recognized. Vasquez. in the earlier case of Almonte v. Being of American origin. is the necessity for protection of the public interest in candid. “The expectation of a President to the confidentiality of his conversations and correspondences. To construe the passage in Senate v. and the marginalized and underrepresented interests that they presumably embody. among other things. They are not exempt by the mere fact that they are department heads.” The Electoral Tribunals in Congress The House of Representatives Electoral Tribunal (HRET) has Jurisdiction over Election Contests involving Party-List Representatives It is for the HRET to interpret the meaning of this particular qualification of a nominee – the need for him or her to be a bona fide member or a representative of his party-list organization – in the context of the facts that characterize Abayon and Palparan’s relation to Aangat Tayo and Bantay. Senate v. Section 17. Vasquez.” which was recognized early in Almonte v. and even blunt or harsh opinions in Presidential decision-making. as follows: “When Congress exercises its power of inquiry. Only one executive official may be exempted from this power – the President on whom executive power is vested. hence. In fact. beyond the reach of Congress except through the power of impeachment. added to those values. Ermita reiterates jurisprudence citing “the considerations justifying a presumptive privilege for Presidential communications. respectively. and the due respect accorded to a co-equal branch of government which is sanctioned by a long-standing custom. objective. if what is involved is the presumptive privilege of presidential communications when invoked by the President on a matter clearly within the domain of the Executive. he has all the values to which we accord deference for the privacy of all citizens and. Ermita to x x x referring to the non-existence of a “presumptive authorization” of an executive official. to mean that the “presumption” in favor of executive privilege “inclines heavily against executive secrecy and in favor of disclosure” is to distort the ruling in the Senate v. like the claim of confidentiality of judicial deliberations. Ermita adverts to “a presumptive privilege for Presidential communication. Ermita expounds on the constitutional underpinning of the relationship between the Executive Department and the Legislative Department to explain why there should be no implied authorization or presumptive authorization to invoke executive privilege by the President’s subordinate officials. The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution x x x.” Thus. in the absence of proof of a compelling or critical need for disclosure by the one assailing such presumption. These are the considerations justifying s presumptive privilege for Presidential communications. the only way for department heads to exempt themselves therefrom is by a valid claim of privilege. Senate v. Ermita and make the same engage in self-contradiction. therefore. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. Any construction to the contrary will render meaningless the presumption accorded by settled jurisprudence in favor of executive privilege. for example. even Senate v. the qualifications of the members of the House of 26 . Article VI of the Constitution provides that the HRET shall be the sole judge of all contests relating to.” Clearly. It is based on he being the highest official of the executive branch. the said presumption dictates that the same be recognized and be given preference or priority. 1987 Constitution) The executive power shall be vested in the President of the Philippines. 2015. G. 612 SCRA 375. July 3.. invoked the doctrine of qualified political agency since the Secretary of Energy is an alter-ego of the President. the HRET has jurisdiction to hear and pass upon their qualifications.. v. 4 th par. En Banc [Sereno. which recognizes the establishment of a single executive. (Jamar Kulayan v. in trying to justify their action. et al. et al. Gov. however. By analogy with the cases of district representatives. 180771. 11 February 2010. especially since what are involved are natural resources. 180771 and 181527. No. Article VII of the Constitution speaks of executive power. of the Constitution. April 21. 1987 Constitution) It has already been established that there is one repository of executive powers. Article XII of the Constitution (National Economy and Patrimony) which states that it is the President who should enter into that kind of contract with foreign corporations. Abdusakur Tan. are. development and utilization of oil and petroleum gasses in Tanon Strait entered into between a Japanese petroleum corporation and the Philippine Government was challenged in this case. The Appointing Power of the President 27 . CJ]). once the party or organization of the party-list nominee has been proclaimed and the nominee has taken his oath and assumed office as member of the House of Representatives. as well as what became known as the calling- out powers under Section 18. and that is the President of the Republic. Was the Agreement valid? The SC said “No. who is authorized to exercise emergency powers as provided under Section 23. et al. unless disapproved or reprobated by the Chief Executive presumably the acts of the Chief Executive. except in cases where the Chief Executive is required by the Constitution or law to act in person or the exigencies of the situation demand that he act personally. the COMELEC’s jurisdiction over election contests relating to his qualification ends and the HRET’s own jurisdiction begins. 187298. En Banc [Abad]) The Executive Department (Article VII. Public respondents. et al. v. Nos. the heads of the various executive departments are assistants and agents of the Chief Executive. April 21.R. as Chief Executive. The SC clarified that this doctrine of qualified political agency may not be validly invoked if it is the Constitution itself that provides that the act should be performed by the President no less. The Doctrine of Qualified Political Agency Under this doctrine. No. (Section 1. 189466 and 189506. G. En Banc (Leonardo-De Castro) The constitutionality of the Service Contract Agreement for the large-scale exploration.R. the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments. G.R.. 2012.” It violated Section 2. En Banc [Leonardo-De Castro]) Resident Marine Mammals of the Protected Seascape Tanon Strait. et al. performed and promulgated in the regular course of business. 2015. Article VII. Article VII thereof. and the acts of the Secretaries of such departments.Representatives. and. Corollarily. (Daryl Grace J. This means that when Section 1. it is only the President.. (Resident Marine Mammals of the Protected Seascape Tanon Strait. Abayon v. Article VI. The one who signed this Agreement on behalf of the Philippine government was the Secretary of Energy. GR Nos. all executive and administrative organizations are adjuncts of the Executive Department. Secretary Angelo Reyes. it is granted to the President and no one else. Since party-list nominees are “elected members” of the House of Representatives. Secretary Angelo Reyes. The Honorable House of Representatives Electoral Tribunal. Not All Officers Appointed by the President under Section 16, Article VII of the 1987 Constitution Shall Require Confirmation by the Commission on Appointments Conformably, as consistently interpreted and ruled in the leading case of Sarmiento III v. Mison, and in the subsequent cases of Bautista v. Salonga, Quintos-Deles v. Constitutional Commission, and Calderon v. Carale, under Section 16, Article VII, of the Constitution, there are four groups of officers of the government to be appointed by the President: First, the heads of the executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution; Second, all other officers of the Government whose appointments are not otherwise provided for by law; Third, those whom the President may be authorized by law to appoint; Fourth, officers lower in rank whose appointments the Congress may by law vest in the President alone. It is well-settled that only presidential appointees belonging to the first group require the confirmation by the Commission on Appointments. (Manalo v. Sistoza, 312 SCRA 239, Aug. 11, 1999, En Banc [Purisima]) The Nature of an Ad Interim Appointment An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. The Constitution itself makes an ad interim appointment permanent in character by making it effective until disapproved by the Commission on Appointments or until the next adjournment of Congress. X x x Thus, the ad interim appointment remains effective until such disapproval or next adjournment, signifying that it can no longer be withdrawn or revoked by the President. Xxx More than half a century ago, this Court had already ruled that an ad interim appointment is permanent in character. In Summers v. Ozaeta, decided on October 25, 1948, we held that: “x x x an ad interim appointment is one made in pursuance of paragraph (4), Section 10, Article VII of the Constitution, which provides that the ‘President shall have the power to make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.’ It is an appointment permanent in nature, and the circumstance that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. An ad interim appointment is disapproved certainly for a reason other than that its provisional period has expired. Said appointment is of course distinguishable from an ‘acting’ appointment which is merely temporary, good until another permanent appointment is issued.” The Constitution imposes no condition on the effectivity of an ad interim appointment, and thus an ad interim appointment takes effect immediately. The appointee can at once assume office and exercise, as a de jure officer, all the powers pertaining to the office. X x x 28 Thus, the term “ad interim appointment”, as used in letters of appointment signed by the President, means a permanent appointment made by the President in the meantime that Congress is in recess. It does not mean a temporary appointment that can be withdrawn or revoked at any time. The term, although not found in the text of the Constitution, has acquired a definite legal meaning under Philippine jurisprudence. The Court had again occasion to explain the nature of an ad interim appointment in the more recent case of Marohombsar v. Court of Appeals, where the Court stated: “We have already mentioned that an ad interim appointment is not descriptive of the nature of the appointment, that is, it is not indicative of whether the appointment is temporary or in an acting capacity, rather it denotes the manner in which the appointment was made. In the instant case, the appointment extended to private respondent by then MSU President Alonto, Jr. was issued without condition nor limitation as to tenure. The permanent status of private respondent’s appointment as Executive Assistant II was recognized and attested to by the Civil Service Commission Regional Office No. 12. Petitioner’s submission that private respondent’s ad interim appointment is synonymous with a temporary appointment which could be validly terminated at any time is clearly untenable. Ad interim appointments are permanent appointment but their terms are only until the Board disapproves them.” An ad interim appointee who has qualified and assumed office becomes at that moment a government employee and therefore part of the civil service. He enjoys the constitutional protection that “[n]o officer or employee in the civil service shall be removed or suspended except for cause provided by law.” (Section 2[3], Article IX-B of the Constitution) Thus, an ad interim appointment becomes complete and irrevocable once the appointee has qualified into office. X x x Once an appointee has qualified, he acquires a legal right to the office which is protected not only by statute but also by the Constitution. He can only be removed for cause, after notice and hearing, consistent with the requirements of due process. (Matibag v. Benipayo, 380 SCRA 49, April 2, 2002, En Banc [Carpio]) Limitations on the Appointing Power of the President Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. (Section 15, Article VII, 1987 Constitution) In Re: Honorable Mateo Valenzuela and Placido Vallarta De Castro v. Judicial and Bar Council The Calling-out Power of the President as Commander-in-Chief of the Armed Forces While the President is still a civilian, Article II, Section 3 of the Constitution mandates that civilian authority is, at all times, supreme over the military, making the civilian president the nation’s supreme military leader. The net effect of Article II, Section 3, when read with Article VII, Section 18, is that a civilian President is the ceremonial, legal and administrative head of the armed forces. The Constitution does not require that the President must be possessed of military training and talents, but as Commander-in-Chief, he has the power to direct military operations and to determine military strategy. Normally, he would be expected to delegate the actual command of the armed forces to military experts, but the ultimate power is his. (Jamar Kulayan v. Gov. Abdusakur Tan, G.R. No. 187298, July 3, 2012, En Banc [Sereno, CJ]) The Calling out Power is exclusive to the President In Jamar Kulayan v. Gov. Abdusakur Tan, G.R. No. 187298, July 3, 2012, En Banc (Sereno, CJ), the Court held: 29 Given the foregoing, Governor Tan is not endowed with the power to call upon the armed forces at his own bidding. In issuing the assailed proclamation, Governor Tan exceeded his authority when he declared a state of emergency and called upon the Armed Forces, the police, and his own civilian Emergency Force. The calling-out powers contemplated under the Constitution is exclusive to the President. An exercise by another official, even if he is the local chief executive, is ultra vires, and may not be justified by the invocation of Section 465 of the Local Government Code. IBP v. Zamora Professor Randolph David v. GMA The Pardoning Power of the President Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment. He shall also have the power to grant amnesty with the concurrence of all the Members of the Congress. (Section 19, 1987 Constitution) Was the Pardon granted to former President Estrada an Absolute Pardon? Former President Estrada was granted an absolute pardon that fully restored all his civil and political rights, which naturally includes the right to seek public office. The wording of the pardon extended to former President Estrada is complete, unambiguous, and unqualified. It is likewise unfettered by Articles 36 and 41 of the Revised Penal Code. The only reasonable, objective, and constitutional interpretation of the language of the pardon is that the same in fact conforms to Articles 36 and 41 of the Revised Penal Code. (Atty. Alicia Risos-Vidal v. COMELEC, G.R. No. 206666, January 21, 2015, En Banc [Leonardo-De Castro]) The 1987 Constitution specifically Section 19 of Article VII and Section 5 of Article IX-C, provides that the President of the Philippines possesses the power to grant pardons, along with other acts of executive clemency. It is apparent that the only instances in which the President may not extend pardon remain to be: (1) impeachment cases; (2) cases that have not yet resulted in a final conviction; and (3) cases involving violations of election laws, rules and regulations in which there was no favorable recommendation coming from the COMELEC. Therefore, it can be argued that any act of Congress by way of statute cannot operate to delimit the pardoning power of the President. It is unmistakably the long-standing position of this Court that the exercise of the pardoning power is discretionary in the President and may not be interfered with by Congress or the Court, except only when it exceeds the limits provided for by the Constitution. This doctrine of non-diminution or non-impairment of the President’s power of pardon by acts of Congress, specifically through legislation, was strongly adhered to by an overwhelming majority of the framers of the 1987 Constitution when they finally rejected a proposal to carve out an exception from the pardoning power of the President in the form of “offenses involving graft and corruption” that would be enumerated and defined by Congress through the enactment of a law. (Atty. Alicia Risos-Vidal v. COMELEC, G.R. No. 206666, January 21, 2015, En Banc [Leonardo-De Castro]) The foregoing pronouncements solidify the thesis that Articles 36 and 41 of the Revised 30 X x x Recently. from both law and jurisprudence. August 10. No. in any way. 185604. Hence. The first sentence refers to the executive clemency extended to former President Estrada who was convicted by the Sandiganbayan of plunder and imposed a penalty of reclusion perpetua. The said codal provisions must be construed to harmonize the power of Congress to define crimes and prescribe penalties for such crimes and the power of the President to grant executive clemency. Xxx A rigid and inflexible reading of the above provisions of law is unwarranted. The sentence that followed. Thus. 2012. the Court reiterates its earlier statement 31 . plain. Thus. the right to seek public elective office is unequivocally considered as a political right. June 13. Hence. instead of indulging in an overly strict interpretation that may serve to impair or diminish the import of the pardon which emanated from the Office of the President and duly signed by the Chief Executive himself/herself. The latter is the principal penalty pardoned which relieved him of imprisonment. It is well-entrenched in this jurisdiction that where the words of a statute are clear. which states that “(h)e is hereby restored to his civil and political rights. 198742. Xxx No less than the International Covenant on Civil and Political Rights. From the words of a statute there should be no departure (Republic v. No. It still recognizes the Presidential prerogative to grant executive clemency and. 678 SCRA 267. Camacho. especially so if it will defeat or unduly restrict the power of the President to grant executive clemency. Verba legis non est recedendum. 698 SCRA 380. 292). Commission on Elections (G. Articles 36 and 41 of the Revised Penal Code should be construed in a way that will give full effect to the executive clemency granted by the President.R. A close scrutiny of the text of the pardon to former President Estrada shows that both the principal penalty of reclusion perpetua and its accessory penalties are included in the pardon. 2013. it is indubitable from the text of the pardon that the accessory penalties of civil interdiction and perpetual absolute disqualification were expressly remitted together with the principal penalty of reclusion perpetua. serve to abridge or diminish the exclusive power and prerogative of the President to pardon persons convicted of violating penal laws. acknowledges the existence of said rights. Xxx For this reason. the right to seek public elective office is recognized by law as falling under the whole gamut of civil and political rights.Penal Code cannot. and free from ambiguity. It is this Court’s firm view that the phrase in the presidential pardon at issue which declares that former President Estrada “is hereby restored to his civil and political rights” substantially complies with the requirement of express restoration. it must be given its literal meaning and applied without attempted interpretation. 398). to which the Philippines is a signatory.” expressly remitted the accessory penalties that attached to the principal penalty of reclusion perpetua. G. even if we apply Articles 36 and 41 of the Revised Penal Code. to decide to pardon the principal penalty while excluding its accessory penalties or to pardon both. in Sobejana-Condon v. specifically. In this jurisdiction. Articles 36 and 41 only clarify the effect of the pardon so decided upon by the President on the penalties imposed in accordance with law.R. the Court unequivocally referred to the right to seek public elective office as a political right x x x. All that said provisions impart is that the pardon of the principal penalty does not carry with it the remission of the accessory penalties unless the President expressly includes said accessory penalties in the pardon. 1987 Constitution) Who has the power to ratify a treaty? In our jurisdiction. Court of Appeals. usually introduced by the word “whereas. No. January 21. he regained his FULL civil and political rights – including the right to seek elective office. i. G. the power to ratify is vested in the President and not. All treaties or international agreements entered into by the Philippines. Oct. requires the concurrence of the Senate to be valid and effective.” neither makes the pardon conditional. (Section 21. foreign military bases. 138570. upon acceptance of the pardon granted to him. or concurrence. in the legislature. valid and binding on the part of the Philippines. the whereas clause at issue is not an integral part of the decree of the pardon. does not by itself alone operate to make the pardon conditional or to make its effectivity contingent upon the fulfillment of the aforementioned commitment nor to limit the scope of the pardon.R. Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or office. In this case. 396 [1998]) Whereas clauses do not form part of a statute because. Article XVIII of the Constitution applies. 339 [1989]). extradition or tax treaties or those economic in nature. G. the third preambular clause of the pardon. when the Congress so requires. it being a special provision Section 21. 2015. 356 Phil. 256 Phil. Article VII. in which case. 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. and therefore. G. COMELEC. “[w]hereas. No. This is especially true as the pardon itself does not explicitly impose a condition or limitation. Alicia Risos-Vidal v. Balasa. strictly speaking. The role of the Senate is limited only to giving or withholding its consent. the concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the subject treaty. or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and. or international agreement. Executive Secretary Ronaldo Zamora. 362. coverage.e. 32 . (BAYAN [Bagong Alyansang Makabayan] v. 328. 2015. 206666. ratified by a majority of the votes cast by the people in a national referendum held for that purpose.” (People v. Section 25. or particular designation or appellation. Jurisprudence educates that a preamble is not an essential part of an act as it is an introduction or preparatory clause that explains the reasons for the enactment.R. Article XVIII. (Atty. 2000. En Banc [Leonardo-De Castro]) Contrary to Risos-Vidal’s declaration. to the ratification. Alicia Risos-Vidal v. such as. (Atty. 1987 Constitution) After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases. (Section 25. COMELEC. nor militates against the conclusion that former President Estrada’s rights to suffrage and to seek public elective office have been restored.that the pardon granted to former President Estrada admits no other interpretation other than to mean that. 10. as commonly believed. January 21. regardless of subject matter. No. Article VII deals with treaties or international agreements in general. and recognized as a treaty by the other contracting State. considering the unqualified use of the term “civil and political rights” as being restored.R. En Banc [Leonardo-De Castro]) The Diplomatic and Treaty-Making Power of the President No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate. troops. but not limited to. 206666. En Banc [Buena]) With respect to the Visiting Forces Agreement (VFA) entered into between the Philippines and the USA in 1998.. they are not part of the operative language of the statute (Llamado v. CJ) Powers relative to Appropriation measures The President shall submit to the Congress within thirty days from the opening of every regular session. content. 10. 2000. as the basis of the general appropriations bill. (Sec. It is a finely-imbedded principle in statutory construction that a special provision or law prevails over a general one. Section 25. Undoubtedly. 25[1]. however. January 12. importation and exportation of equipment.V. Ochoa.R. VII. (Sec. troops or facilities in the Philippines. the VFA is an agreement which defines the treatment of United States troops and personnel visiting the Philippines. En Banc [Buena]) Rene A. et al.R. No. Section 25.R. Article XVIII is a special provision that applies to treaties which involve the presence of foreign military bases. v. G. and recognized as such by the other contracting State. troops. should apply in the instant case. there is no difference between treaties and executive agreements in their binding effect upon states concerned. 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. It provides for the guidelines to govern such visits of military personnel. Oct. ratified by a majority of the votes cast in a national referendum held for that purpose if so required by Congress. as long as the functionaries have remained within their powers. Art. Jr. (BAYAN [Bagong Alyansang Makabayan] v. or facilities” may be allowed in the Philippines only by virtue of a treaty duly concurred in by the Senate. Executive Secretary Ronaldo Zamora. 212426. movement of vessels and aircraft. International law continues to make no distinction between treaties and executive agreements: they are equally binding obligations upon nations. 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. 138570 and Companion Cases. or facilities. a budget of expenditures and sources of financing. No. Under this provision. materials and supplies. which specifically deals with treaties involving foreign military bases. and manner of preparation of the budget shall be prescribed by law. Oct. Xxx On the whole. Executive Secretary Paquito N. The form. G. Art. To a certain extent and in a limited sense. Article XVIII further requires that “foreign military bases. 1987 Constitution) The Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget. 481-492. Executive Secretary Ronaldo Zamora. In contrast. (BAYAN [Bagong Alyansang Makabayan] v. 1987 Constitution) Emergency Power 33 . Article XVIII. 2000. Section 25. 138570. Saguisag. G.. Lex specialis derogat generali. and further defines the rights of the United States and the Philippine government in the matter of criminal jurisdiction. In international law. En Banc (Sereno. including receipts from existing and proposed revenue measures. No. the provisions of Section 21. 22. troops. 10. VI. 342 SCRA 449. 2016. En Banc [Buena]) Discuss the binding effect of treaties and executive agreements in international law. authorizing the President. 209287. In Tanada v. Article VI. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable. 1987 Constitution) The Judicial Department (Article VIII. by law. under the Constitution. (Section 23[2]. et al. Romulo. are to be decided by the people in their sovereign capacity. No. the rest being created by Congress in its exercise of the legislative power. En Banc [Bersamin]) Judicial Power and the Political Question Doctrine The Political Question Doctrine Baker v. which up to then was confined to its traditional ambit of settling actual controversies involving rights that were legally demandable and enforceable. In times of war or other national emergency. becomes by operation of the Constitution one of the repositories of judicial power. G... the Constitution vests judicial power in the Court and in such lower courts as may be established by law. 1987 Constitution) Thus. 2014. we held that political questions refer “to those questions which. and that court. Congress concomitantly determines the jurisdiction of that court. The background and rationale of the expansion of judicial power under the 1987 Constitution were laid out during the deliberations of the 1986 Constitutional Commission by Commissioner Roberto R. (Section 1. 162230. April 28. Benigno Simeon C. Carr remains the starting point for analysis under the political question doctrine. et al. It is concerned with issues dependent upon the wisdom. G. only the Court is a constitutionally created court. In creating a lower court. Unless sooner withdrawn by resolution of the Congress. En Banc [Del Castillo]) 34 . and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. July 1.” It has thereby expanded the concept of judicial power. Our previous Constitutions equally recognized the extent of the power of judicial review and the great responsibility of the Judiciary in maintaining the allocation of powers among the three great branches of the Government. upon its creation. The Constitution states that judicial power includes the duty of the courts of justice not only “to settle actual controversies involving rights which are legally demandable and enforceable” but also “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. 1987 Constitution) The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. for a limited period and subject to such restrictions as it may prescribe. (Maria Carolina P. Cuenco.R.” (Vinuya. v. Araullo. However. Concepcion (a former Chief Justice of the Philippines) in his sponsorship of the proposed provisions on the Judiciary. et al. or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. et al. the Congress may. not legality of a particular measure. 2010.R. Aquino III. v. to exercise powers necessary and proper to carry out a declared national policy. The Honorable Executive Secretary Alberto G. Article VIII. such powers shall cease upon the next adjournment thereof. No. and courts certainly possess the authority to construe or invalidate treaties and executive agreements. 2010. v. Truly. No. Beyond that. as the sovereign. G. the authority for which is demonstrably committed by our Constitution not to the courts but to the political branches. al. Ocampo. X x x. and its sole representative with foreign relations. The most that the SC may do is to exhort her. it is ultimately for the people themselves. et al. 2016. “In the seminal case of US v. not all cases implicating foreign relations present political questions.Saturnino C. Elaborating. For even the Framers of our Constitution intend that full respect for human rights is available at any stage of a person’s development. Romulo. Notwithstanding the call of human rights advocate. Marcos at the “Libingan ng mga Bayani (LNMB). a task that may require the better perspective that the passage of time provides.. And that is not to deny Marcos of his rightful place at the LNMB. Rear Admiral Ernesto C. et. Vinuya. That will violate the doctrine of separation of powers for that is a political question – a question in regard to which full discretionary authority has been delegated by the Constitution to the President as the chief architect of our foreign policy and as the spokesman of the nation in matters of foreign relations. the US Supreme Court held that ‘[t]he President is the sole organ of the nation in its external relations. However. the Court held: “To be sure. There are certain things that are better left for history – not this Court – to adjudge.’ 35 . November 8. the President’s discretion is not totally unfettered. The Honorable Executive Secretary Alberto G. 225973. The wisdom of such decision is not for the courts to question. Enriquez. G. The Court could only do so much in accordance with clearly established rules and principles. En Banc (Del Castillo) The SC may not compel the President to take up the cause of the petitioners (comfort women during World War II) against Japan. April 28.. 162230.R. to decide. President Duterte x x x acted within the bounds of the law and jurisprudence. v. the Executive and the Judiciary must speak with just one voice to avoid serious embarrassments and strained relations with foreign countries. In this case.. there is no clear constitutional or legal basis to hold that there was a grave abuse of discretion amounting to lack or excess of jurisdiction which would justify the Court to interpose its authority to check and override an act entrusted to the judgment of another branch. from the time he or she becomes a person to the time he or she leaves this earth. to urge her to take up petitioners cause – but not to compel her. the Executive Department has already decided that it is to the best interest of the country to waive all claims of its nationals for reparations against Japan in the Treaty of Peace of 1951. No. Curtiss-Wright Export Corp. In matters of foreign policy. the Court must uphold what is legal and just. At bar. the question whether the Philippine government should espouse claims of its nationals against a foreign government is a foreign relations matter.R. et al.” Held: In sum. al. En Banc (Peralta) The petitioners failed to show that President Duterte committed grave abuse of discretion when he allowed the burial of former President Ferdinand E. et. Paquito N. There must be contrariety of legal rights that can be interpreted and enforced on the basis of existing law or jurisprudence. consular and other officials. No. He has his agents in the form of diplomatic. an assertion of opposite legal claims. and (d) the issue of constitutionality must be the very lis mota of the case. v. which are the most essential. Rear Admiral Ernesto C. susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute. Moreover. Related to the requisite of an actual case or controversy is the requisite of “ripeness. “X x x “The Executive Department has determined that taking up petitioners’ cause would be inimical to our country’s foreign policy interests. (b) the person challenging the act must have the standing to question the validity of the subject act or issuance. (b) the person challenging the act must have the standing to question the validity of the subject or issuance. 208566. He has his confidential sources of information. not Congress. in the maintenance of our international relations. Ocampo. 2013. v. embarrassment – perhaps serious embarrassment – is to be avoided and success for our aims achieved. Of these requisites. the limitation on the power of judicial review to actual cases and controversies carries the assurance that the courts will not intrude into areas committed to the other branches of the government. the absence of the first two.R. namely: (a) there must be an actual case or controversy calling for the exercise of judicial power. G. En Banc [Peralta]) The Meaning of an “Actual Case or Controversy” An “actual case or controversy” is one which involves a conflict of legal rights. has the better opportunity of knowing the conditions which prevail in foreign countries. Exec. Enriquez. November 8. et al. renders the discussion of the last two superfluous. No. En Banc [Perlas-Bernabe]) It is well-settled that no question involving the constitutionality or validity of a law or governmental act may be heard and decided by the Court unless the following requisites for judicial inquiry are present: (a) there must be an actual case of controversy calling for the exercise of judicial power. In this case... Those areas pertain to questions which. (Belgica. under the Constitution. Moreover. 2016. 710 SCRA 1. he.R. congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible where domestic affairs alone involved. et al. 19. (c) the question of constitutionality must be raised at the earliest opportunity. et al. “It is quite apparent that if. et al. case law states that the first two are the most important. and could disrupt our relations with Japan. thereby creating serious implications for stability in this region. Requisites for a Proper Exercise by the Court of its Power of Judicial Review The prevailing rule in constitutional litigation is that no question involving the constitutionality or validity of a law or governmental act may be heard and decided by the Court unless there is compliance with the legal requisites for judicial inquiry.” which means that something had been accomplished or performed by either branch before a court may come into the picture. are to be decided by the people in their sovereign 36 . 89. G. and especially is this true in times of war. Sec. For us to overturn the Executive Department’s determination would mean an assessment of the foreign policy judgments by a coordinate political branch to which authority to make that judgment has been constitutionally committed. Ochoa. Nov. and the petitioner must allege the existence of an immediate or threatened injury to itself as a result of the challenged action. (Saturnino C. and (d) the issue of constitutionality must be the very lis mota of the case. 225973. (c) the question of constitutionality must be raised at the earliest opportunity. touching on the legal relations of parties having adverse legal interests. courts have refrained from even expressing an opinion in a case where the issues have become moot and academic. As they are concerned with questions of policy and issues dependent upon the wisdom. (Saturnino C. 387. The Government of the Republic of the Philippines. November 8. En Banc [Peralta]) An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination. Paquito N. The controversy must be justiciable – definite and concrete. April 8. v. (International Service for the Acquisition of Agri-biotech Applications. Inc. No. v. not conjectural or anticipatory. April 24. 83. GR No. December 8. The Moot and Academic Principle An action is considered “moot” when it no longer presents a justiciable controversy because the issued involved have become academic or dead. 2016. October 30. He must show that he has sustained or is immediately in danger of sustaining some direct injury as a result of the act complained of (The Province of North Cotabato v. lest the decision of the court would amount to an advisory opinion. there being no more justiciable controversy to speak of.. 800 [1998]). Imbong. Enriquez. 2012. or when the matter in dispute has already been resolved and hence. if first. 209271. 164987. v. 556 Phil. 348 Phil. Court of Appeals. Commission on Elections.capacity. 304-305 [2005]) Corollary to the requirement of an actual case or controversy is the requirement of ripeness (Lawyers against Monopoly and Poverty [LAMP] v. Greenpeace Southeast Asia (Philippines). Hon. tangible and not merely a theoretical question or issue. G.” The Court will decide cases. or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. However. A question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. 604 SCRA 825. Ochoa. 225973. jurisprudence dictates that “the ‘moot and academic’ principle is not a magical formula that can automatically dissuade the Court in resolving a case. there is a grave violation of the Constitution. the scope of the political question doctrine has been limited by Section 1 of Article VIII of the 1987 Constitution when it vested in the judiciary the power to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Information Technology Foundation of the Philippines v. it must concern a real. as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. 840). otherwise moot. (James M. Ocampo.. et al. et al. 499 Phil. Jr. Court of Appeals. 2014. on the one hand. 2015. GR No. et al.R. Rear Admiral Ernesto C. En Banc [Villarama]) Exceptions to the Moot and Academic Principle Even on the assumption of mootness. 184646. 281. In other words. 2009. and the petitioner must allege the existence of an immediate or threatened injury to himself as a result of the challenged action. GR No. (Republic Telecommunications Holding. however intellectually challenging. and a denial thereof. For a case to be considered ripe for adjudication. 204819. one is not entitled to judicial intervention unless the issue is likely to be raised again between the parties (Santiago v. 481 [2008]). Time and again.. it is a prerequisite that something has then been accomplished or performed by either branch before a court may come into the picture. that is. not legality of a particular measure. GR No. 589 Phil. so that a determination thereof would be of no practical use or value (Barbieto v. second. 91-92 [2001]) The rule is that courts do not sit to adjudicate mere academic questions to satisfy scholarly interest. 792. 383). 670 SCRA 373. et al. The Secretary of Budget and Management. the exceptional character of the situation and the 37 . Santiago. Inc. political questions used to be beyond the ambit of judicial review. on the other. et al.. v. There ought to be an actual and substantial controversy admitting of specific relief through a decree conclusive in nature. the pleadings must show an active antagonistic assertion of a legal right. 101083. (Id. 393404 [2008]. 2013. November 8. 225973. 455. et al. No. or of paramount public interest. G. 208 SCRA 420. or of paramount public interest. En Banc [Peralta]) 38 . 637 SCRA 78. G. to exist from the inception of mankind and it is an issue of transcendental importance with intergenerational implications. En Banc [Peralta]) Suits Filed by Concerned Citizens As concerned citizens. November 8. COMELEC.) In the landmark case of Oposa v. 632-633 [2000]) However.]) Taxpayers’ Suit Taxpayers have been allowed to sue where there is a claim that public funds are illegally disbursed or that public money is being deflected to any improper purpose. 2016. Nov. Paquito N. 93. (Saturnino C. Secretary of the Department of Energy. En Banc [Perlas-Bernabe]) Locus Standi Defined as a right of appearance in a court of justice on a given question. No.R. et al. et al. 2011.. Ochoa. Unless a person has sustained or is in imminent danger of sustaining an injury as a result of an act complained of. and “calls for more than just a generalized grievance. 1992. 1993. and the public. February 1. Swift.R. Ocampo. 19. Ocampo. (Saturnino C. Such right carries with it the correlative duty to refrain from impairing the environment. (Saturnino C. Nos. At 804-805) (Most Rev. 321 [1997] and De Guia v. 507 Phil. v. v. v. Specifically.” (Id. taxpayers and legislators when the public interest so requires. petitioners are also required to substantiate that the issues are of transcendental significance. citing Jumamil v. July 30. 705. 151 citing Social Justice Society [SJS] v. Romulo. G. 346 Phil. G. Scott H. Sec. Pedro D. the bar. 104712. Enriquez. 2010. et al. we recognized the “public right” of citizens to “a balanced and healthful ecology which. et al. when the constitutional issue raised requires formulation of controlling principles to guide the bench. 710 SCRA 1.R. Jr. et al. Dangerous Drugs Board.R. December 7. No. like other civil and political rights guaranteed in the Bill of Rights. Café. 392 Phil..R. and fourth. the rule on standing is a procedural matter which this Court has relaxed for non-traditional plaintiffs like ordinary citizens. 224 SCRA 792. Rear Admiral Ernesto C. In cases involving such issues. No. (Belgica. En Banc [Villarama. it is “a party’s personal and substantial interest in a case where he has sustained or will sustain direct injury as a result” of the act being challenged. et al. or that public funds are wasted through the enforcement of an invalid or unconstitutional law. third. (Biraogo v. is solemnly incorporated in the fundamental law.. et al. 618. 465 [2005]. 254. Arigo.R. v. Factoran.. citing David v. Tatad v. No. 192935 & 193036. G. 206510. Philippine Truth Commission of 2010. G.R. Ocampo. Rear Admiral Ernesto C. 591 Phil. 225973.paramount public interest is involved. 2016. September 16.. of overreaching significance to society. No. citing Integrated Bar of the Philippines v. En Banc [Peralta]) Locus standi is “a right of appearance in a court of justice on a given question (Bayan Muna v. Exec. Jr. such party has no standing. November 8. 159618.. Enriquez. locus standi requires that a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions. for the first time in our constitutional history. 2014. G.R..” We declared that the right to a balanced and healthful ecology need not be written in the Constitution for it is assumed. the imminence and clarity of the threat to fundamental constitutional rights outweigh the necessity for prudence. Enriquez.. et al. No. 641 SCRA 244. 755 [2006]). 522 Phil. et al. Rear Admiral Ernesto C. the case is capable of repetition yet evading review. v. such as when the subject matter of the controversy is of transcendental importance. May 6. 225973. G. 2016. Zamora. 208566. et al. G. No. 422. Macapagal-Arroyo.R. ” (See ANNOTATION TO THE RULES OF PROCEDURE FOR ENVIRONMENTAL CASES) (Most Rev. and the right of the people to peaceably assemble. speech and religion and other fundamental rights mentioned above have been violated by the assailed legislation. albeit with some modifications. Romualdez v.. 206510. Sandiganbayan. Verily.]) Facial Challenge James M. freedom of the press. is now enshrined in the Rules which allows the filing of a citizen suit in environmental cases. has been generally maintained. but also all other rights in the First Amendment (See United States v. on the principle that humans are stewards of nature. These include religious freedom. it has expanded its scope to cover statutes not only regulating free speech. et al. and to petition the Government for a redress of grievances. Paquito N.. While this Court has withheld the application of facial challenges to strictly penal statutes (Romualdez v. but also those involving religious freedom. Swift. the fundamental right to religious freedom. No. v. considering that the foregoing petitions have seriously alleged that the constitutional human rights to life.R. as they are modes which one’s thoughts are externalized. insofar as it refers to minors and generations yet unborn. The provision on citizen suits in the Rules “collapses the traditional rule on personal and direct interest. (GR No. 290 [2001]). For unlike its counterpart in the U. freedom of the press and peaceful assembly are but component rights of the right to one’s freedom of expression. Imbong. Romualdez v. November 8. Estradfa v. (Saturnino C. Pedro D. 316 [2008]). is on that is launched to assail the validity of statutes concerning not only protected speech. 39 .R. Commission on Elections. 204819. would diminish this Court as a reactive branch of government.. To dismiss these petitions on the simple expedient that there exist no actual case or controversy. the framers of Our Constitution envisioned a proactive Judiciary. 265 [2004]. Arigo. Enriquez. but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. acting only when the Fundamental Law has been transgressed. In this jurisdiction. a facial challenge. 305. 2014. 357 [2008]. the Court has authority to take cognizance of these kindred petitions and to determine if the RH (Reproductive Health) Law can indeed pass constitutional scrutiny. 2016. Consequently. En Banc [Peralta]) The Liberalization of the Rules on Legal Standing The liberalization of standing first enunciated in Oposa. Scott H. their standing as members of the Congress cannot be upheld. 576 Phil.Suits Filed by Members of Congress In the absence of a clear showing of any direct injury to their person or the institution to which they belong. v. 739 [1987]).. 225973. April 8. et al. et al.S. En Banc [Villarama. under its expanded jurisdiction. ever vigilant with its duty to maintain the supremacy of the Constitution. 421 Phil. Rear Admiral Ernesto C. 594 Phil. Sandiganbayan. 481 U. Ochoa. to the detriment of the Filipino people. the application of doctrines originating from the U. et al. No. September 16. 2014. Jr.S. The underlying reason for this modification is simple. also known as a First Amendment Challenge. En Banc [Mendoza]) In United States (US) constitutional law. et al. this Court. et al. and other fundamental rights (Resolution. G. After all. 479 Phil. Commission on Elections. G. Salerno. Jr. Hon. Ocampo. v.. is mandated by the Fundamental Law not only to settle actual controversies involving rights which are legally demandable and enforceable.S. Jr. et al. if facial challenge is allowed for this reason alone. 178890. et al. and other fundamental rights may be facially challenged. 203335. one can challenge the constitutionality of a statute only if he asserts a violation of his own rights. but also on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or activities. or vagueness. the law cannot take chances as in the area of free speech. & 179461. En Banc (Carpio- Morales) In addition. En Banc (Abad) When a penal statute encroaches upon the freedom of speech. Ordinarily. a statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application. a particular litigant claims that a statute is unconstitutional as applied to him or her. 178552. pinpointing its flaws and defects. overbreadth. The Secretary of Justice. The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual rules of constitutional litigation. Feb. Commission on Elections. In overbreadth analysis. 11.. “we must view these statements of the Court on the inapplicability of the overbreadth and vagueness doctrines to penal statutes as appropriate only insofar as these doctrines are used to mount “facial” challenges to penal statutes not involving free speech. G.” In an “as applied” challenge. v. Anti-Terrorism Council. 178581. only statutes on free speech. (G. The Void-for-vagueness Doctrine and the Doctrine of Overbeadth Southern Hemisphere Engagement Network. The inapplicability of the doctrine must be carefully delineated. challenges are permitted to raise the rights of third parties. It prohibits one from assailing the constitutionality of the statute based solely on the violation of the rights of third persons not before the court. No.” An overbreadth ruling is designed to remove that deterrent effect on the speech of those third parties.Jose Jesus M. lack of ascertainable standards. decrees that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. The rule established in our jurisdiction is. Carpio explained in his dissent in Romualdez v. This rule is also known as the prohibition against third-party standing. meanwhile. Moreover. The Court assumes that an overbreadth law’s “very existence may cause others not before the court to refrain from constitutionally protected speech or expression. Disini. In the area of criminal law. a facial challenge grounded on the void-for-vagueness doctrine is acceptable. challengers to a law are not permitted to raise the rights of third parties and can only assert their own interests. not only on the basis of its actual operation to the parties. Under no case may ordinary penal statutes be subjected to a facial challenge. Distinguished from an as-applied challenge which considers only extant facts affecting real litigants. Criminal statutes have general in terrorem effect resulting from their very existence. v.R. Inc. The factor that motivates courts to depart from the normal adjudicatory rules is the concern with the “chilling” deterrent effect of the overbreadth statute on third parties not courageous enough to bring suit. 40 . the petitioner who claims a violation of his constitutional right can raise any constitutional ground – absence of due process. 5 October 2010. et al. a facial invalidation is an examination of the entire law...” not merely “as applied for” so that the overbreadth law becomes unenforceable until a properly authorized court construes it more narrowly. 179157. Nos. those rules give way.. et al. The overbreadth doctrine. lack of fair notice. As Justice Antonio T.R. Here. and the court invalidates the entire statute “on its fact. and. religious freedom. the State may well be prevented from enacting laws against socially harmful conduct. 2014. ” The provision is the most important protection of property rights in the Constitution. April 12. in all fairness and justice. [Peralta]) CONSTITUTIONAL LAW Police Power The Power of Eminent Domain The Constitution expressly provides in Article III. Section 9 that “private property shall not be taken for public use without just compensation. 632 SCRA 5.e. the society should pay. G. 158090. 2010. initiated. The constitutional provision is about ensuring that the government does not confiscate the property of some to give it to others. or printed. No. the Integrated Bar. Caballero. The Court ruled that the provision in the Charter of the GSIS. shall be uniform for all courts of the same grade. The Rule-Making Power of the Supreme Court The Supreme Court shall have the following powers: Xxx (5) Promulgate rules concerning the protection and enforcement of constitutional rights. assessments. This was because. But it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because that conduct was. Xxx Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter neither the intent of the law to punish socially harmful conduct nor the essence of the whole act as conduct and not free speech. Such an expansive interpretation of the constitutional guarantees of speech and press would make it practically impossible ever to enforce laws against agreements in restraint of trade as well as many other agreements and conspiracies deemed injurious to society. 8291. fees. and legal assistance to the underprivileged. 118127. In part too.. unlike the 1935 and 1973 Constitutions. evidenced. in part. Oct. which exempts it from “all taxes.R. practice and procedure. should be borne by the public as a whole. 1987 Constitution) In In Re: Petition for Recognition of the Exemption of the Government Service Insurance System from Payment of Legal Fees.” (City of Manila v. 4. If the government takes away a person’s property to benefit society. No. or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. it is about loss spreading. or carried out by means of language. practice and procedure in all courts.. cited 41 . i. pleading. the Supreme Court now has the sole authority to promulgate rules concerning pleading. Heirs of Fernando F. and procedure in all courts. which empowered Congress to repeal. (Section 5[5]. and shall not diminish. Hence. alter or supplement the rules of the Supreme Court concerning pleading. (GSIS v. The principal purpose of the guarantee is “to bar the Government from forcing some people alone to bear public burdens which. 2nd Div. Section 39 of Republic Act No. G. 2005.” cannot operate to exempt it from the payment of legal fees.R. This is a restriction on the general power of the government to take property. the 1987 Constitution removed this power from Congress. the admission to the practice of law. 14-15. charges or duties of all kinds. either spoken. Jr. practice. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases. Laguio. written. It is true that the agreements and course of conduct were in most instances brought about through speaking or writing. increase. . and their having been designed from earliest time to the present to meet the exigencies of an undefined and expanding future. United Harbor Pilots Association of the Phils. namely. A “possessory” taking occurs when the government confiscates or physically occupies property. v. Pilipino Banana Growers & Exporters Association. (City of Manila v.. their dynamic and resilient character which make them capable of meeting every modern problem. No. Jr.. THE BILL OF RIGHTS The Right to Due Process of Law Section 1 of the Bill of Rights lays down what is known as the “due process clause” of the Constitution.in Mosqueda.” while substantive due process “requires that the law itself. Laguio. A landowner may only be entitled to compensation if the taking amounts to a permanent denial of all economically beneficial or productive uses of the land. 81) (Corona v. the requirement cannot be construed and deemed as confiscatoy requiring payment of just compensation. En Banc [Bersamin]) The Two (2) Types of “Taking” under the Power of Eminent Domain There are two different types of taking that can be identified. In order to fall within the aegis of this provision. Textbook on the Philippine Constitution. the elasticity in their interpretation. No. 2016. 2016). Pilipino Banana Growers & Exporters Association. et al. (G. A “regulatory” taking occurs when the government’s regulation leaves no reasonable economically viable use of the property. No. Jr. The Supreme Court did not agree.. Laguio. 118127. G. and just. Although Section 3(e) of the ordinance requires the planting of diversified trees within the identified buffer zone. et al. 2005) In Mosqueda. Inc.R. No. The requirements of due process are interpreted in both. v. According to the Court: The establishment of the buffer zone is required for the purpose of minimizing the effects of aerial spraying within and near the plantations. reasonable. In essence. not merely the procedures by which the law would be enforced. 1997 [Romero]) The due process clauses in the American and Philippine Constitutions are not only worded in exactly identical language and terminology. When one speaks of due process of law. 2005). however. et al. April 12. that there is a deprivation and that such deprivation is done without proper observance of due process. August 16. The respondents cannot be said to be permanently and completely deprived of their landholdings because they can still cultivate or make other productive uses of the areas to be identified as the buffer zones. 1991.R.” (De Leon.R. et al. G. April 12. is fair. it clarified that taking only becomes confiscatory if it substantially divests the owner of the beneficial use of its property.. Inc. but more importantly. 283 SCRA 31. (G. 189185. Dec. the United States 42 . procedural due process “refers to the method or manner by which the law is enforced. it was argued that the requirement of maintaining a buffer zone in all agricultural entities under Section 6 of an ordinance of Davao City prohibiting aerial spraying unduly deprives all agricultural landowners in that City of the beneficial use of their property amounting to taking without just compensation. 189185. 12. August 16. they are alike in what their respective Supreme Courts have expounded as the spirit with which the provisions are informed and impressed. two conditions must concur. a distinction must be made between matters of procedure and matters of substance.R. 118127. p. Citing City of Manila v. 18. 337). 322 SCRA 160. where the respondent is not precluded from enjoying the right to notice and hearing at a later time without prejudice to the person affected. Civil Code). they may claim the right to appear therein and present their side and to refute the position of the opposing parties (Cruz. Jan. therefore. be considered dispensable in certain instances. En Banc [Melo]) Instances when Prior Notice or Hearing may be Dispensed with These twin rights may. Toward this effect and in order to avoid the confines of a legal straitjacket. but in administrative proceedings as well. It relates to certain immutable principles of justice which inhere in the very idea of free government (Holden v. the basic rights of notice and hearing pervade not only in criminal and civil proceedings. the preventive suspension of a public servant facing administrative charges (Section 63. Individuals are entitled to be notified of any pending case affecting their interests. it lacks comprehensible standards so that men of ordinary intelligence will probably have to guess as to its meaning and differ in its application. and procedural due process which consists of the two basic rights of notice and hearing. 43 . Constitutional Law. Where there is tentativeness of administrative action. Local Government Code. (Secretary of Justice v. and the replacement of a temporary appointee. as well as the guarantee of being heard by an impartial and competent tribunal (Cruz. En Banc [Melo]) The Void-for-vagueness Doctrine The law should be declared void as it is vague. liberty. Blg. 169 U. 20 SCRA 849 [1967]). p. 18. New Jersey. 186-188. 64). City Mayor of Manila. True to the mandate of the due process clause. 211 U. 322 SCRA 160. 102-106). pp. Due process is comprised of two components – substantive due process which requires the intrinsic validity of the law in interfering with the rights of the person to his life. like the summary abatement of a nuisance per se (Article 704. In proceedings where there is an urgent need for immediate action. it gives law enforcers unbridled discretion in carrying out provisions and. the padlocking of filthy restaurants or theaters showing obscene movies or like establishments which are immediate threats to public health and decency. or property. that is. Philippine Administrative Law. Hardy. Such vague law is repugnant to the Constitution in two (2) respects: one. it becomes an arbitrary flexing of the government’s muscle. 2000. 2000. second. 186-188. Non-observance of these rights will invalidate the proceedings.S. 78). the courts instead prefer to have the meaning of the due process clause “generally ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise (Twining v. 2. (Secretary of Justice v.P. however.and the Philippines as not denying to the law the capacity for progress and improvement. and 3. and upon notice..S. Capsulized. 1993 Ed. and the cancellation of a passport of a person sought for criminal prosecution. such as: 1. it refers to “the embodiment of the sporting idea of fair play” (Ermita-Malate Hotel and Motel Owner’s Association v. i.. it violates due process as it fails to afford persons fair notice of the conduct to avoid and. Where the twin rights have previously been offered but the right to exercise them had not been claimed. Lantion. 366). Lantion. such as the summary distraint and levy of the property of a delinquent taxpayer. B. in effect. 1996 ed.. Jan.e. Pilipino Banana Growers & Exporters Association. Honorable Ralph Lantion. 2016. However. It requires public bodies and institutions to treat similarly situated individuals in a similar manner. et al. X x x Xxx The required civil works for the conversion to truck-mounted boom spraying alone will consume considerable time and financial resources given the topography and geographical features of the plantations. both as to rights conferred and responsibilities imposed. October 17. 189185.” Extradition and Due Process Secretary of Justice v. G. 2000 Resolution of the Motion for Reconsideration During the initial evaluation stage at the Department of Justice of an extradition proceeding. for this to be validly invoked. whether occasioned by the express terms of a statute or by its improper execution through the State’s duly constituted authorities. imprisonment and even cancellation of business permits would definitely be oppressive as to constitute abuse of police power. Requiring the respondents and other affected individuals to comply with the consequences of the ban within the three- month period under pain of penalty like fine. Held: The impossibility of carrying out a shift to another mode of pesticide application within three months can readily be appreciated given the vast area of the affected plantations and the corresponding resources required therefor. There is no denial of due process for as long as fundamental fairness is assured a party. No. an extraditee is not yet entitled to the documents he was requesting (like copy of request for his extradition from the requesting government.R.. the completion could not be completed within the short timeframe of three months. Mosqueda. The guarantee of equal protection secures every person within the State’s jurisdiction against intentional and arbitrary discrimination. This is but a “soft restraint” on his right to due process at that stage. As such. August 16. He may be given copies of those documents once the petition for his extradition is filed in the RTC. En Banc (Bersamin) An Ordinance enacted by the City of Davao prohibiting aerial spraying in all agricultural entities in that City and requiring affected parties to shift to other modes of pesticide application within a three-month period under pain of penalty was declared unconstitutional as it violates due process for being oppressive. The concept of equal justice under the law demands that the State governs impartially and not to draw distinctions 44 . the act or law must be utterly vague on its face that it cannot be clarified either by a saving clause or by statutory construction. v.. That is because an extradition is “sui generis. Inc. and supporting documents and evidences) so that he may be able to prepare for his defense. The Right to the Equal Protection of the Laws The constitutional right to equal protection requires that all persons or things similarly situated should be treated alike.” it is not similar to a criminal proceeding which will call into operation all of the rights of an accused as guaranteed by the Bill of Rights. et al. et al. nor intends to prohibit legislation by limiting the object to which it is directed or by the territory in which it is to operate..R. violates the equal protection clause. 2016. ruled that the ordinance of Davao City prohibiting aerial spraying in all agricultural entities therein as the practice produces pesticide drift causing inconvenience and harm to the residents and degrades the environment. and that it is the least restrictive means to protect such interest.. If the groupings are characterized by substantial distinctions that make real differences.. 189185. En Banc [Bersamin]) In Mosqueda. et al. Classifications based on gender or illegitimacy receives intermediate scrutiny. and (2) the means employed that are reasonably necessary for the accomplishment of the purpose and are not unduly oppressive upon individuals. August 16. En Banc [Bersamin]) The Three (3) Levels of Scrutiny to Determine the Propriety of the Classification under the Equal Protection Clause The reasonability of a distinction and sufficiency of the justification given by the Government for its conduct is gauged by using the means-end test. G. or to any other case not involving a suspect class. and (4) equally applicable to all members of the class. Inc. The strict scrutiny review applies when a legislative classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar class disadvantage of a suspect class.R. et al. v. The guaranty of equal protection envisions equality among equals determined according to a valid classification. To survive intermediate scrutiny. et al. (Mosqueda. hence. (3) not limited to existing conditions only. v. et al. (Mosqueda. 189185..between individuals solely on differences that are irrelevant to the legitimate governmental objective.. Inc. Even manual spraying or truck- mounted boom spraying produces drift that may bring about the same inconvenience. August 16. the law must not only further an important governmental interest and be substantially related to that interest. as distinguished from those of a particular class. v. Equal protection neither requires universal application of laws to all persons or things without distinction.. The Court Held: The occurrence of pesticide drift is not limited to aerial spraying but results from the conduct of any mode of pesticide application. Pilipino Banana Growers & Exporters Association. viz: the rational scrutiny. No. Pilipino Banana Growers & Exporters Association. but the justification for the classification must be genuine and must not depend on broad generalizations. 2016. To determine the propriety of the classification. should be declared unconstitutional. 45 . a valid classification must be: (1) based on substantial distinctions. 189185. (G. No. 2016. G. No. August 16. applying the rational basis test. This test requires analysis of: (1) the interests of the public that generally requires its exercise. Pilipino Banana Growers & Exporters Association. (2) germane to the purposes of the law. Inc. The Government carries the burden to prove that the classification is necessary to achieve a compelling state interest. When the classification puts a quasi-suspect class at a disadvantage. En Banc [Bersamin]).R. one class may be treated and regulated differently from another. the Court. intermediate scrutiny and strict scrutiny. et al. it will be treated under intermediate or heightened review. The rational basis scrutiny (also known as the rational relation test or rational basis test) demands that the classification reasonably relate to the legislative purpose. The rational basis test often applies in cases involving economics or social welfare. In other words. courts resort to three levels of scrutiny. geographical location. The arbitrariness of Section 6 all the more becomes evident when the land is presently devoted to the cultivation of root crops and vegetables. The establishment and maintenance of the buffer zone will become more burdensome to the small landholders because: (1) they have to reserve the 30-meter belt surrounding their property. The imposition of the ban against aerial spraying of substances other than fungicides and regardless of the agricultural activity being performed becomes unreasonable inasmuch as it patently bears no relation to the purported inconvenience. A classification that is drastically underinclusive with respect to the purpose or end appears as an irrational means to the legislative end because it poorly serves the intended purpose of the law. Its implementation will unnecessarily impose a burden on a wider range of individuals than those included in the intended class based on the purpose of the law. only large banana plantations could rely on aerial technology because of the financial capital required therefor. including the respondents and even others with no connection whatsoever to the intended purpose of the ordinance. This requirement applies regardless of the area of the agricultural landholding. and (4) will be limited as to the crops that may be cultivated therein based on the mandate that the zone shall be devoted to “diversified trees” taller than what are being grown therein. discomfort. (3) the metes and bounds of the buffer zone will have to be plotted in a survey plan for submission to the local government unit. and do not contribute to the occurrence of pesticide drift. the ordinance suffers from being “underinclusive” because the classification does not include all individuals tainted with the same mischief that the law seeks to eliminate. The respondents admit that they aerially treat their plantations not only with pesticides but also vitamins and other substances. crops grown and other distinguishing characteristics that ideally should bear a reasonable relation to the evil sought to be avoided. It can be noted that the imposition of the ban is too broad because the ordinance applies irrespective of the substance to be aerially applied and irrespective of the agricultural activity to be conducted. In the process. discomfort and alleged health risks to the community and to the environment. topography. Xxx Aside from its being underinclusive. The classification indisputably becomes arbitrary and whimsical. and trees or plants slightly taller than the root crops and vegetables are then to be planted. As earlier stated. The burden now will become more onerous to various entities. A ban against aerial spraying does not weed out the harm that the ordinance seeks to achieve. 0309-07 may also be traced to its Section 6 by virtue of its requirement for the maintenance of the 30-meter buffer zone. Section 6 also subjects to the 30-meter buffer zone requirement agricultural entities engaging in organic farming. It is seriously to be doubted whether such circumstance will prevent the occurrence of the drift to the nearby residential areas. health risk and environmental danger which the ordinance seeks to address. 46 . the assailed ordinance also tends to be “overinclusive” because its impending implementation will affect groups that have no relation to the accomplishment of the legislative purpose.” Xxx The overinclusiveness of Ordinance No. (2) that will have to be identified through GPS. statutory (Sec. 6.. It effectively denies the affected individuals the technology aimed at efficient and cost-effective operations and cultivation not only of banana but of other crops as well. A substantially overinclusive or underinclusive classification tends to undercut the governmental claim that the classification serves legitimate political ends. In this light. 2. a department under the executive branch. The discriminatory character of the ordinance makes it oppressive and unreasonable in light of the existence and availability of more permissible and practical alternatives that will not overburden the respondents and those dependent on their operations as well as those who stand to be affected by the ordinance. the determination of probable cause for the purpose of issuing a warrant of arrest. the vice is that the law has a greater discriminatory or burdensome effect than necessary. He cannot abdicate the performance of that function in favor of the prosecutor if he wanted to remain faithful to the Constitution. we strike down Section 5 and Section 6 of Ordinance 0309-07 for carrying an invidious classification. P. and the other is made by the judge for the purpose of issuing a warrant of arrest. an officer under the Department of Justice..D. Guiani In a criminal proceeding. there are two (2) determinations of probable cause. or of a search warrant. On statutory basis 47 . For this reason. 1069). because under Section 2 of the Bill of Rights of the Constitution. the judge is not bound by the determination of probable cause by the prosecutor. and constitutional (Sec. X x x The Right against Unreasonable Searches and Seizures Abdula v. or even that of a search warrant. No. On the other hand. is a judicial function.e. The prohibition against aerial spraying will seriously hamper the operations of the banana plantations that depend on aerial technology to arrest the spread of the Black Sigatoka disease and other menaces that threaten their production and harvest. he should not rely solely on the finding of probable cause by the prosecutor because he is mandated by the Constitution to determine probable cause personally. Judge Purganan Prior notice or hearing is not required before a judge issues a warrant of arrest of an extraditee once the petition for extradition is filed in court on two (2) basis. i. only a judge may issue a warrant of arrest or of a search warrant. one is made by the prosecutor during preliminary investigation for the purpose of filing the criminal information in court. the ordinance discriminates against large farmholdings that are the only ideal venues for the investment of machineries and equipment capable of aerial spraying. and for thereby violating the Equal Protection Clause. Government of the USA v. In fact. X x x the effect of the ban will not be limited to Davao City in view of the significant contribution of banana export trading to the country’s economy. Art. It is a function that belongs to the prosecutor.e. III of the Bill of Rights). Where overinclusiveness is the problem. Xxx Evidently. The determination of probable cause for the purpose of filing the criminal information in court is an executive function. i. It falls under the category of an administrative search. the SC held that this is now another instance of valid warrantless search – warrantless searches at airports. The precedent arrest must always be lawful because. 2. Hearing entails sending of notices to opposing parties. and 3. Rule 126. Valmonte v. 1069 (Extradition Law) provides that the moment the petition for extradition is filed in the RTC. 48 .” The law could not have intended the use of the word “immediate” a superfluity. 9165 (The Comprehensive Dangerous Drugs Act) does not constitute unreasonable search prohibited by the Constitution. like the stolen wallet or the knife used in hold-up. No. Section 6. Dangerous Drugs Board The Mandatory Drug Testing under R. P. This is in view of increased concern over airplane hijacking and terrorism. On constitutional basis Even Section 2. the subsequent search. the process cannot be reversed. Rules of Court) This is the most common among the instances of valid warrantless searches. De Villa For searches at checkpoints to be valid. the strict probable cause requirement is not applied. An intrusive search is not allowed Social Justice Society v. In the later case of People v. he has no reasonable expectation of privacy and can be subject to warrantless search. the following must be observed: 1. what the Constitution provides is “after examination under oath or affirmation of the complainant (not of the accused) and the witnesses he may produce. On the contrary.A.D. It may not be extended beyond that. The search at checkpoint must be limited to visual search only. In administrative searches. Article III of the Bill of Rights does not require notice or hearing before a judge issues a warrant of arrest. if the precedent arrest is unlawful. and receiving facts and arguments from them. although it may have yielded positive results. Leila Johnson When one is at the nation’s airport and wanted to travel by air. The three (3) important features of this kind of warrantless search are: 1. People v. In this kind if warrantless search. and 3. No.” Search Incidental to a Lawful Arrest (Section 13. The object of this kind of warrantless search is to obtain object or effect of a crime. may never validate the unlawful arrest that preceded it. 2. Susan Canton. The search must be limited or confined only to the immediate vicinity of the place of the arrest. Arrest subsequent to a hearing can no longer be considered “immediate. the arrest always precedes the search. The checkpoint must be pre-announced. It must be stationary. the judge shall cause the immediate issuance of a warrant of arrest. 203335. the revelation of trade and industrial secrets. Fourth. No.. even if it inside a closed container but if due to the configuration of the container. (Morfe v.R. et al. Fifth and Ninth Amendments x x x. and 17.A. or the right to be let alone. Rule 130[c].A. 6. It is clear that if the object is inside a closed container. In the 1968 case of Morfe v.People v. and recognizes the privacy of letters and other private communications. The law enforcement officer must have a valid justification for an intrusion. 8. G.R. 2. 479. (Ople v. and trespass to dwelling. 8293). Torres. 1. Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law (R. 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 held that there is a right of privacy which can be found within the penumbras of the First. Revised Rules on Evidence). The Revised Penal Code makes a crime the violation of secrets by an officer.” In the 1965 case of Griswold v. 4200). The Right to Privacy Is there a constitutional right to privacy? The essence of privacy is the “right to be let alone. Disini. 14 L. 127685. the Secrecy of Bank Deposits (R.A. The Rules of Court on privileged communication likewise recognize the privacy of certain information (Section 24. the United States Supreme Court gave more substance to the right of privacy when it ruled that the right has a constitutional foundation. July 23. July 23. Other facets of the right to privacy are protected in various provisions of the Bill of Rights (viz: Secs. 11. G. However. No. 18 [1970]). It is expressly recognized in Section 3(1) of the Bill of Rights x x x. Jr. p. Torres. 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. Cortes. The Secretary of Justice. it 49 . ed. if we extend our judicial gaze we will find that the right of privacy is recognized and enshrined in several provisions of our Constitution. Doria The requisites for the “plain view” doctrine to be validly invoked are: 1. 2D 510 [1965]). Connecticut (381 U. The Constitutional Foundations of Privacy. or subject to seizure. v. contraband.. we adopted the Griswold ruling that there is a constitutional right to privacy x x x. Indeed. The discovery of the evidence in plain view must be inadvertent. No. 444 [1968]. 2014. 2. Mutuc. it can still be seen from the outside what is inside. 22 SCRA 424. Mutuc (22 SCRA 424. 444-445). Mutuc. 1405) and the Intellectual Property Code (R. (Ople v. and 3. “plain view” may not be invoked. Feb. En Banc (Abad) The right to privacy. 1998 [Puno]) Jose Jesus M. Third. personality. or due to its transparency. But the Court acknowledged its existence as early as 1968 in Morfe v. 127685. was institutionalized in the 1987 Constitution as a facet of the right protected by the guarantee against unreasonable searches and seizures.S. 1998 [Puno]) What are the zones of privacy recognized and protected in our laws? The Civil Code provides that “[e]very person shall respect the dignity. or is in a position where he can view a particular area.R. et al. It is immediately apparent to him that the thing he sees is object of a crime.. “plain view” may still be invoked. G. Content-neutral restrictions. a rule such as that involved in Sanidad v. commentators. and (b) the right to privacy of communication and correspondence. For example. Relevant to any discussion of the right to privacy is the concept known as the “Zones of Privacy. therefore. 6646.A. In addition. like regulation of time. Blg. which prohibits the sale or donation of print space and air time to political candidates during the campaign period. Comelec.A. which are not concerned with the content of political ads but only with their incidents. “no one shall be subjected to arbitrary interference with his privacy” and “everyone has the right to the protection of the law against such interference or attacks. the Public Assembly Act of 1985. prohibiting columnists. a court must determine whether a person has exhibited a reasonable expectation of privacy and.” Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable searches and seizures. 11(b) of R.” The Court explained in “In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v. have improper motivation. and announcers from campaigning either for or against an issue in a plebiscite must have compelling reason to support it. any form of intrusion is impermissible unless excused by law and in accordance with customary legal process. These regulations need only a substantial governmental interest to support them. Within these zones. if so. like Sec. Senator Gordon” the relevance of these zones to the right to privacy: Zones of privacy are recognized and protected in our laws. In assessing the challenge that the State has impermissibly intruded into these zones of privacy.” but also from our adherence to the Universal Declaration of Human Rights which mandates that. whether that expectation has been violated by unreasonable government intrusion. which is the basis of the right to be let alone. and are usually imposed because of fear of how people will react to a particular speech. No.ruled that the right to privacy exists independently of its identification with liberty. March 31. 288 SCRA 447. 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. and content-neutral regulations Content-based restrictions are imposed because of the content of the speech and are. on the other hand. These restrictions are censorial and therefore they bear a heavy presumption of constitutional invalidity. No. A deferential standard of review will suffice to test their validity. subject to the clear-and-present danger test. (Osmena v. or it will not pass muster under strict scrutiny. 1998 [Mendoza]) 50 . The test for this difference in the level of justification for the restriction of speech is that content-based restrictions distort public debate. The meticulous regard we accord to these zones arises not only from our conviction that the right to privacy is a “constitutional right” and “the right most valued by civilized men. like Sec. are not concerned with the content of the speech. they will be tested for possible overbreadth and vagueness. No such reasons underlie content-neutral regulations. 880. 11(b) of R. it is in itself fully deserving of constitutional protection. 6646. COMELEC. place and manner of holding public assemblies under B. Freedom of Expression Content-based restrictions on free speech.P. The clear-and-present danger rule is inappropriate as a test for determining the constitutional validity of laws. it should be invalidated if such governmental interest is “not unrelated to the suppression of free expression.What is the most influential test for distinguishing content-based from content-neutral regulations? The United States Supreme Court held in United States v. respondents cite Article IX-C. 367. X x x We held that the “evil sought to be prevented by this provision is the possibility that a franchise holder may favor or give any undue advantage to a candidate in terms of advertising space or radio or television time. It is noteworthy that the O’ Brien test has been applied by this Court in at least two cases (Adiong v. (3) if the governmental interest is unrelated to the suppression of free expression. GR No. 565 [1990]) 51 . En Banc [Mendoza]) Chavez v. COMELEC had no legal basis to regulate expressions made by private citizens. Bishop Vicente M. 2015. SUBSTANTIVE ISSUES A. Petitioners are not candidates. Ed. However. Comelec. COMELEC. expression and press) is no greater than is essential to the furtherance of that interest (391 U.S. January 21. 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. It is significant and of first impression. O’ Brien: [A] a governmental regulation is sufficiently justified (1) if it is within the constitutional power of the government. laws. (Social Weather Stations. G. and (4) if the incidental restriction on alleged First Amendment freedoms (of speech. Gunther & K.” Moreover. Neither do they belong to any political party. et al. Comelec. Secretary Gonzales The Diocese of Bacolod. 20 L. Sullivan. First. v. all of these provisions pertain to candidates and political parties. Represented by the Most Rev. COMELEC does not have the authority to regulate the enjoyment of the preferred right to freedom of expression exercised by a non-candidate in this case. May 5. Comelec. Section 4 of the Constitution x x x.” (Sanidad v. 260 Phil. 147571.” (G.R. 2df 692. No. Inc. 205728. Navarra. v. En Banc (Leonen) This case defines the extent that our people may shape the debates during elections. Constitutional Law 1217 [13 th ed. Osmena v. Before us is a special civil action for certiorari and prohibition under Rule 65 of the Rules of Court seeking to nullify COMELEC’s Notice to Remove Campaign Materials. COMELEC. Respondents (COMELEC officials) cite the Constitution. We are asked to decide whether the Commission on Elections (COMELEC) has the competence to limit expressions made by the citizens – who are not candidates – during elections. and jurisprudence to support their position that they had the power to regulate the tarpaulin. Under this test.). even if the purpose is unrelated to the suppression of free speech. even if a law furthers an important or substantial governmental interest. 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. 1997]). 207 SCRA 712 [1992]. supra. (2) if it furthers an important or substantial governmental interest. 2001. Xxx In this case.This Court found that “[m]edia practitioners exercising their freedom of expression during plebiscite periods are neither the franchise holders nor the candidates[. On the other hand. Xxx Respondents considered the tarpaulin as a campaign material in their issuances. Section 4 of the Constitution even to governmental acts. 52 . Similar to the media.]” thus. No. B. Section 3 of Republic Act No. petitioners invoke their right to freedom of expression. 9006 [2001]) on the posting of campaign materials only mentions “parties” and “candidates” x x x. These provisions show that election propaganda refers to matter done by or on behalf of and in coordination with candidates and political parties. The tarpaulin was not paid for by any candidate or political party. it will be inferred that this provision only affects candidates. Respondents likewise cite Article IX-C. the tarpaulin contains speech on a matter of public concern. 9006 on “Lawful Election Propaganda” also states that these are “allowed for all registered political parties. This was followed by the assailed letter regarding the “election propaganda materials posted on the church vicinity promoting for or against the candidates and party-list groups . petitioners posted the tarpaulin as part of their advocacy against the RH Law. national. . . . . While it is true that the present petition assails not a law but an opinion by the COMELEC Law Department. their right to expression during this period may not be regulated by COMELEC. and petitioners are neither of the two. Section 2(7) of the Constitution x x x. this Court has applied Article III. sectoral parties or organizations participating under the party-list elections and for all bona fide candidates seeking national and local elective positions subject to the limitation on authorized expenses of candidates and political parties. 9615 provides for a similar wording. The violation of the constitutional right to freedom of speech and expression No law. Thus. . The above provisions regulating the posting of campaign materials only apply to candidates and political parties. There was no allegation that petitioners coordinated with any of the persons named in the tarpaulin regarding its posting. Petitioners assail the “Notice to Remove Campaign Materials” issued by COMELEC. that is.A.” Section 6 of COMELEC Resolution No. a statement of either appreciation or criticism on votes made in the passing of the RH law.” Section 9 of the Fair Election Act (R. . Based on the enumeration made on acts that may be penalized. petitioners in the case at bar are neither franchise holders nor candidates. Some level of coordination with the candidates and political parties for whom the election propaganda are released would ensure that these candidates and political parties maintain within the authorized expenses limitation. regional. . L. The word “expression” was added in the 1987 Constitution x x x for having a wider scope x x x. shall be passed abridging. 954 [1990]) “[I]n communicative action[. 1847 [1997]) such that “’when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct. Communication exists when “(1) a speaker. uses conventional actions because he or she reasonably believes that such actions will be taken by the audience in the manner intended.” (Heidi M. Rev. Sovereignty in Silence. 1844. O’Brien. Ct.’” (Id. L.” (Hugh Baxter. and even to inaction itself as a symbolic manner of communication. Rev.]’ (Joshua Waldman. thus.S.” (Freedom of Speech and Expression. 97 Colum. 391 U. 499 [2002]) Speech is not limited to vocal communication. separate and in addition to the freedom of speech and of the press provided in the US Constitution.] the hearer may respond to the claims by x x x either accepting the speech act’s claims or opposing them with criticism or requests for justification. 367. 376 [1968]) The right to freedom of expression. However. 945. System and Lifeworld in Haberma’s Theory of Law. The prohibition against the abridgment of speech should not mean an absolute prohibition against regulation. X x x. this court has applied its precedent version to expressions other than verbal utterances. citing US v. 116 Harv. Rev. .’ the ‘communicative element’ of the conduct may be ‘sufficient to bring into play the [right to freedom of expression]. and (2) the audience so takes the actions. . The test depends on the relevant theory of speech implicit in the kind of society framed by our Constitution. The primary and incidental burden on speech must be weighed against a compelling state interest clearly allowed in the Constitution. Symbolic Speech and Social Meaning. 23 Cardozo L. Freedom of expression and equality The possibility of abuse The guarantee of freedom of expression to individuals without any relationship to any political candidate should not be held hostage by the possibility of abuse by those seeking to be elected. 473. “[C]onduct is treated as a form of speech sometimes referred to as ‘symbolic speech[.. Free Speech Coalition. Section 4 of the present Constitution. 277 [2002]. Our Constitution has also explicitly included the freedom of expression. Even before freedom “of expression” was included in Article III. 99 Yale L. applies to the entire continuum of speech from utterances made to conduct enacted. 1403 [2002]) Xxx Communication is an essential outcome of protected speech. Speech may be said to be inextricably linked to freedom itself as “[t]he right to think is the beginning of freedom. . seeking to signal others. labeling all expressions of private parties that tend to have an effect on the debate in the elections as election paraphernalia would be too broad a remedy that can 53 . and speech must be protected from the government because speech is the beginning of thought. 272. J. . All regulations will have a impact directly or indirectly on expression. Hurd. 1389. quoting Justice Kennedy in Ashcroft v. 122 S. It is an expression designed to invite attention. It provides space for all to be guided by their conscience. It may be motivated by the interpretation of petitioners of their ecclesiastical duty. They are classified into black and white: as belonging to “Team Patay” or “Team Buhay. or that they have been expressed in good taste. This is not speech by candidates or political parties to entice votes. cause debate. Xxx Some may have thought that there should be more room to consider being more broad- minded and non-judgmental. Instead. to address this evil. however. It is a specie of expression protected by our fundamental law. This can often be expressed by dominant institutions. It is not a detailed code that prescribes good conduct. provocative messages do matter for the elections. better and more effective enforcement will be the least restrictive means to the fundamental freedom. and hopefully. It is not to regulate or limit speech of the electorate as it strives to participate in the electoral exercise. Certainly. That they made their point dramatically and in a large way does not necessarily mean that their statements are true. Xxx COMELEC”s general role includes a mandate to ensure equal opportunities and reduce spending among candidates and their registered political parties. But. Embedded in the tarpaulin. Some may have expected that the authors would give more space to practice forgiveness and humility. Freedom of the Press Four (4) Aspects of Press Freedom 54 .stifle genuine speech. the Bill of Rights enumerated in our Constitution is an enumeration of our fundamental liberties. are opinions expressed by petitioners. What is involved in this case is the most sacred of speech forms: expression by the electorate that tends to rouse the public to debate contemporary issues. The tarpaulin in question may be viewed as producing a caricature of those who are running for public office. even religious ones. or that they have basis. Freedom for the thought we can disagree with can be wielded not only by those in the minority. is still protected speech. Their message may be construed generalizations of very complex individuals and party-list organizations. It is protected as a fundamental and primordial right by our Constitution. The expression in the medium chosen by petitioners deserves our protection. but their parishioner’s actions will have very real secular consequences.” But this caricature. It is a portion of the electorate telling candidates the conditions for their election. not only in the act that they do to others but also in judgment of the acts of others. persuade. It is the substantive content of the right to suffrage. though not agreeable to some. This is a form of speech hopeful of a quality of democracy that we should all deserve. demonstration. (Section 3[a]. Gonzales. B. and of the press. No. or protesting or influencing any state of affairs whether political. April 25.. However. 880) Action to be taken on the application (Section 6. The definition herein contained shall not include picketing and other concerted action in strike areas by workers and employees resulting from a labor dispute as defined by the Labor Code. or expressing an opinion to the general public on any particular issue. 880) Permit when required and when not required A written permit shall be required for any person or persons to organize and hold a public assembly in a public place.. B. together with freedom of speech. has recognized four aspects of freedom of the press.R. al. Political meetings or rallies held during any election campaign period as provided for by law are not covered by this Act. (3) freedom of access to information.P. (Section 4. G. These are (1) freedom from prior restraint. (BAYAN. CJ]) Freedom of Assembly The first point to mark is that the right to peaceably assemble and petition for redress of grievances is. its implementing rules and regulations. The processions. En Banc [Puno. 2006. Blg. et. 15 February 2008. (Section 5. in which case only the consent of the owner or the one entitled to its legal possession is required. and (4) freedom of circulation. parade. Blg. Philippine jurisprudence. Raul M. (2) freedom from punishment subsequent to publication. et al.P. G. 880) 55 . v.P. without which all the other rights would be meaningless and unprotected. En Banc [Azcuna]) Batas Pambansa Blg.R. Ermita. procession or any other form of mass or concerted action held in a public place for the purpose of presenting a lawful cause. march. economic or social. B. et al.P. That the declaration of policy as provided in Section 2 of this Act shall be faithfully observed. No. 880 – The Public Assembly Act of 1985 Meaning of Public Assembly “Public assembly” means any rally. Blg. Provided. parades. shall be centrally located within the poblacion where demonstrations and meetings may be held at any time without the need of any prior permit. even as early as the period under the 1935 Constitution. 169838. as far as practicable. 880) Freedom Parks Every city and municipality in the country shall within six months after the effectivity of this Act establish or designate at least one suitable “freedom park” or mall in their respective jurisdictions which. public meetings and assemblages for religious purposes shall be governed by local ordinances. and by the Batas Pambansa Bilang 227. of expression. demonstrations. (Francisco Chavez v. or petitioning the government for redress of grievances. Blg. or in the campus of a government–owned and operated educational institution which shall be subject to the rules and regulations of said educational institution. however. no permit shall be required if the public assembly shall be done or made in a freedom park duly established by law or ordinance or in a private property. 168338. rallies. a right that enjoys primacy in the realm of constitutional protection. For these rights constitute the very basis of a functional democratic polity. B. ” In modifying the permit outright. under specific statutory provision. when granted imprimatur as the appellate court would have it. Atienza failed to indicate how he had arrived at modifying the terms of the permit against the standard of a clear and present danger test which x x x is an indispensable condition to such modification. 1st Div. (e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit. (b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the application was filed. unfettered discretion. It is not. the applicant may contest the decision in an appropriate court of law. It smacks of whim and caprice for Atienza to impose a change of venue for an assembly that was slated for a specific public place. Integrated Bar of the Philippines v. (Carpio Morales) The Integrated Bar of the Philippines (IBP) applied for a permit to rally at Mendiola Bridge. However. however. Atienza gravely abused his discretion when he did not immediately inform the IBP who should have been heard first on the matter of his perceived imminent and grave danger of a substantive evil that may warrant the changing of the venue. Nothing in the issued permit adverts to an imminent and grave danger of a substantive evil. Held: Section 6(c) of the Public Assembly Act (BP 880) provides that “If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit. No. 175241. While prudence requires that there be a realistic appraisal not of what may possibly occur but of what may probably occur.R. G. Issue: Whether or not the appellate court erred in holding that the modification of the venue in IBP’s rally permit does not constitute grave abuse of discretion. Hon. then Manila Mayor Jose “Lito” Atienza issued a permit to rally at Plaza Miranda instead. (d) The action on the permit shall be in writing and served on the applicant within twenty- four hours. Mayor Jose “Lito” Atienza. (a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order. failing which. he shall immediately inform the applicant who must be heard on the matter. public convenience. the permit shall be deemed granted. It is thus reversible error for the appellate court not to have found such grave abuse of discretion and. public morals or public health. render illusory any judicial scrutiny thereof. still the assumption – especially so where the assembly is scheduled for a specific public place – is that the permit must be for the assembly being held there. It is true that the licensing official is not devoid of discretion in determining whether or not a permit would be granted. said application shall be posted by the applicant on the premises of the office of the mayor and shall be deemed to have been filed.” 56 . public safety. (c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit. 24 February 2010. not to have modified the permit “in terms satisfactory to the applicant. Should for any reason the mayor or any official acting in his behalf refuse to accept the application for a permit. which “blank” denial or modification would. he shall immediately inform the applicant who must be heard on the matter. given all the relevant circumstances. This was adverted to in Osmena v. submitted by the Solicitor General. No.R.P. what is to be followed is and should be that mandated by the law itself. It merely 57 . 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time..P. 880. March 31.P. B. Furthermore. and public assemblies in the campus of a government-owned and operated educational institution. This is a recognized exception to the exercise of the right even under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights x x x. G. 880 thus readily shows that it refers to all kinds of public assemblies (except picketing and other concerted action in strike areas by workers and employees resulting from a labor dispute. The reference to “lawful cause” does not make it content-based because assemblies really have to be for lawful causes. 2006. the Court rules that in view of the maximum tolerance mandated by B. et al. which are governed by the Labor Code and other labor laws.R. public safety. April 25.Meaning of Maximum Tolerance “Maximum tolerance” means the highest degree of restraint that the military. At any rate. The words “petitioning the government for redress of grievances” come from the wording of the Constitution. En Banc [Azcuna]) The Calibrated Pre-emptive Response (CPR) Policy adopted by the Arroyo Administration in dealing with public assemblies The Court now comes to the matter of the CPR. this Court reiterates its basic policy of upholding the fundamental rights of our people. 4 of B. maximum tolerance is for the protection and benefits of all rallyists and is independent of the content of the expressions in the rally. 880 is merely a “content-neutral” regulation It is very clear that B. public convenience. For this reason. the Solicitor General has conceded that the use of the term should now be discontinued. 880]) that would use public places. CPR serves no valid purpose if it means the same thing as maximum tolerance and is illegal if it means something else. since it does not mean anything other than the maximum tolerance policy set forth in B. This is stated in the Affidavit of respondent Executive Secretary Eduardo Ermita. political meeting or rallies held during election campaign period. (Section 3[c]. As stated earlier. 478). No. Accordingly. so its use cannot be avoided. where the Court referred to it as a “content-neutral” regulation of the time.P. police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same. (BAYAN. place and manner of the assemblies. the permit can only be denied on the ground of clear and present danger to public order. et al. the so-called calibrated preemptive response policy has no place in our legal firmament and must be struck down as a darkness that shrouds freedom.” “protesting” and “influencing” in the definition of public assembly content-based. otherwise they would not be “peaceable” and entitled to protection. Neither are the words “opinion. Blg. namely. No. place. A fair and impartial reading of B. 880) B. 288 SCRA 447). Ermita. maximum tolerance. and manner of holding public assemblies (Ibid. 1998. 132231. 169838.P. which shall be subject to the rules and regulations of said educational institution [Sec. Finally. public morals or public health. No.P. 3(a) and Sec. especially freedom of expression and freedom of assembly. which are governed by the Election Code and other election related laws. v. No. 880. No. No. In sum. p. Comelec (G. No. since they can refer to any subject.P. v. Held: “Our Constitution provides in Article III. or the adoption and enforcement within a religious association of needful laws and regulations for the government of the membership. instead. and the power of excluding from such associations those deemed not worthy of membership. The COMELEC. therefore. et al. worship and governance of the congregation. (BAYAN. No. In effect.” Clearly. No. it does not curtail or unduly restrict freedoms. “governmental reliance on religious justification is inconsistent with this policy of neutrality. G. [Kapunan]) Iglesia Ni Cristo v. or form of worship of the church.R. an ecclesiastical affair involves the relationship between the church and its members and relate to matters of faith. Court of Appeals 58 . administration of sacraments and other activities with attached religious significance. is not supposed to be guided by religious standards in its decisions and actions.. No.” Based on this definition.” At bottom. was ruled by the SC to be tainted with grave abuse of discretion and. April 8. On the other hand. To be concrete. NLRC. it merely regulates the use of public places as to the time. En Banc (Del Castillo) The decision of the COMELEC not to allow the Ang Ladlad-LGBT Party to participate in party-list elections because its members are “immoral. “Rather than relying on religious belief. 2006.. government must act for secular purposes and in ways that have primarily secular effects. 1999.” citing verses from the Bible and the Koran. Section 5 that”[n]o law shall be made respecting an establishment of religion. not the government. or prohibiting the free exercise thereof. “maximum tolerance” is for the benefit of rallyists. Commission on Elections.R. 190582. The delegation to the mayors of the power to issue rally “permits” is valid because it is subject to the constitutionally-sound “clear and present danger” standard.P. examples of this so-called ecclesiastical affairs to which the State cannot meddle are proceedings for excommunication. (Pastor Dionisio V. Ermita. 124382. place and manner of assemblies. as a government agency. 618 SCRA 32. creed. No. 169838.” What is a purely ecclesiastical affair to which the State can not meddle following the Separation of Church and State Doctrine? An ecclesiastical affair is “one that concerns doctrine. G. April 25. B. Aug. 2010. Otherwise stated.confuses our people and is used by some police agents to justify abuses. et al. Austria v. the COMELEC used religious standard in its decision by using verses from the Bible and the Koran.R. G. religious doctrines. Far from being insidious. X x x. nullified. 880 cannot be condemned as unconstitutional. what our non-establishment clause calls for is “government neutrality in religious matters. on whether the COMELEC is able to advance some justification for its rulings beyond mere conformity to religious doctrine. 16. the legitimacy of the Assailed Resolutions should depend. En Banc [Azcuna]) Freedom of Religion Ang Ladlad-LGBT Party v. ordinations of religious ministers. 1st Div. as it violated the non-establishment clause of freedom of religion.” We thus find that it was grave violation of the non- establishment clause for the COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang Ladlad. THE PETITIONS ARE partially granted. as they are ultra vires and. particularly Section 5. 8344.24 thereof.24 thereof. Accordingly. The marketplace of ideas demands that speech should be met by more speech. 8344. Paquito N. as defined under Republic Act No... 2014. Let them duel in the market place of ideas. therefore. v.A. null and void for contravening Section 4(a) of the RH Law and violating Section 12.01(j) of the RH-IRR. After all. Liberty of Abode and Freedom of Movement 59 . not in an emergency or life-threatening case. 10354 as NOT UNCONSTITUTIONAL. to another health care service provider within the same facility or one which is conveniently accessible regardless of his or her religious beliefs. Imbong. James M. regardless of his or her religious beliefs. insofar as they punish any public officer who refuses to support reproductive health programs or shall do any act that hinders the full implementation of a reproductive health program. particularly Section 5. 7) Section 17 and the corresponding provision in the RH-IRR regarding the rendering of pro bono reproductive health service in so far as they affect the conscientious objector in securing Philhealth accreditation. to undergo reproductive health procedures without the consent of the spouse. Article II of the Constitution. insofar as they punish any healthcare service provider who fails or refuses to disseminate information regarding programs and services on reproductive health regardless of his or her religious beliefs. particularly Section 5. when it comes to religious differences. Hon. the Court declares R.01(a) and Section 3. which added the qualifier “primarily” in defining abortifacients and contraceptives. as defined under Republic Act No. 204819. No. Jr. 3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as they allow a married individual. It is not its task to defend one religion against an attack by another religion. 6) Section 23(b) and the corresponding provision in the RH-IRR. Under the non-establishment clause of freedom of religion. GR No. the heat of colliding ideas. and 8) Section 3. et al. that can fan the embers of truth. the remedy against bad theology is better theology. and b) allow minor-parents or minors who have suffered a miscarriage access to modern methods of family planning without written consent from their parents or guardian/s. Ochoa. 4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as they limit the requirement of parental consent only to elective surgical procedures. as defined under Republic Act no. 8344. April 8. not in an emergency or life- threatening case. to another health facility which is conveniently accessible. the State enjoys no banquet of options – neutrality alone is its fixed and immovable stance. for it is the spark of opposite speech. except with respect to the following provisions which are declared UNCONSTITUTIONAL: 1) Section 7 and the corresponding provision in RH-IRR insofar as they: a) require private health facilities And non-maternity specialty hospitals and hospitals owned and operated by a religious group to refer patients. En Banc (Mendoza) Wherefore. 5) Section 23(a)(3) and the corresponding provision in the RH-IRR.24 thereof. et al. 2) Section 23(a)(1) and the corresponding provision in the RH-IRR. insofar as they punish any healthcare service provider who fails and/or refuses to refer a patient not in an emergency or life-threatening case. Neither shall the right to travel be impaired except in the interest of national security. or public health. Both terms embrace a broad spectrum of subjects which the public may want to know. public safety or public health as may be provided by law. (Sec. 6. the Court also held that official acts of public officers done in pursuit of their official functions are 60 . as held in Tanada. 49-2003 does not restrict but merely regulates. however. OCA Circular No. III. for traveling abroad without having been officially allowed by the Court.” So was the need to give the general public adequate notification of various laws that regulate and affect the actions and conduct of citizens. ‘Public concern’ like ‘public interest’ is a term that eludes exact definition. This. that he has decided and resolved all cases or incidents within three (3) months from date of submission. before they can go on leave to travel abroad. 49-2003. Section 6. To ensure management of court dockets and to avoid disruption in the administration of justice. or simply because such matters naturally arouse the interest of an ordinary citizen. 49-2003 requires a judge who wishes to travel abroad to submit. Article III of the 1987 Constitution allows restrictions on one’s right to travel provided that such restriction is in the interest of national security. it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance. The said certification shall state the condition of his docket based on his Certificate of Service for the month immediately preceding the date of his intended travel. OCA Circular No. Art. as may be provided by law. 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. should by no means be construed as limiting the Court’s inherent power of administrative supervision over lower courts. a certification from the Statistics Division.M. elucidated: “In determining whether or not a particular information is of public concern. A.” access to which may be limited by law. Judge Macarine is guilty of violation of OCA Circular No. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Article VIII of the 1987 Constitution. public safety. In the final analysis. the exercise of such right is not absolute. either because these directly affect their lives. 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. [Brion]) The Right of the People to Information on Matters of Public Concern In Valmonte v. Macarine. by providing guidelines to be complied by judges and court personnel. together with his application for leave of absence duly recommended for approval by his Executive Judge.. in Legaspi v. Court Management Office of the OCA. the Court emphasized that the information sought must be “matters of public concern. (Office of Administrative Services–Office of the Court Administrator v. as it relates to or affects the public.” As to the meanings of the terms “public interest” and “public concern. To “restrict” is to restrain or prohibit a person from doing something. Belmonte. pursuant to Section 15(1) and (2). Thus. Similarly. there is no rigid test which can be applied.” 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. Judge Ignacio B. to “regulate” is to govern or direct according to rule. 2nd Div. In Aquino-Sarmiento v. 1987 Constitution) Limitation on the Right to Travel The right to travel is guaranteed by the Constitution. Jr. 18 July 2012.” the Court. No. MTJ- 10-1770. However. Civil Service Commission. Morato. public in character. PCGG. the records pertaining to such official acts and decisions are within the ambit of the constitutional right of access to public records. approved on June 6.A. 299 SCRA 744. as well as the internal deliberations of the Supreme Court. 1998.A. thus. hence. 3) Criminal matters. 2) Trade or industrial secrets (pursuant to the Intellectual Property Code [R. 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. 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. Under Republic Act No. enacted on February 20. En Banc [Mendoza]) Section 7 of Article III of the Constitution is relevant in the issue of public disclosure of SALN and other documents of public officials. at reasonable hours.M. No. Dec.” except when “otherwise provided by law or when required by the public interest. closed door Cabinet meetings and executive sessions of either house of Congress. Liabilities and Networth (SALN) and Personal Data Sheet or Curriculum Vitae of the Justices of the Supreme Court and Officers and Employees of the Judiciary (A. 7[c]. the prosecution and the detention of criminals. No. 299 SCRA 744. (Chavez v. [Panganiban]) Recognized Restrictions to the Right of the People to Information on Matters of Public Concern 1) National security matters and intelligence information. but thoughts and ideas must be well-informed so that the public would gain a better perspective of vital issues confronting them and.A. liabilities and financial disclosures of all public officials and employees. be able to criticize as well as participate in the affairs of the government in a responsible. 2012. the law mandates free public access. PCGG.” In particular. 6713. which courts may not inquire into prior to such arrest. 61 .” (Sec. consistent with the policy of transparency of governmental affairs. public officials and employees are mandated to “provide information on their policies and procedures in clear and understandable language. faithfully and competently performing their functions as public servants. The Ethical Standards Act (R. the essence of democracy lies in the free-flow of thought. (Chavez v. such as those relating to the apprehension. No. In general. 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. 09-8-6-SC. No. 4) Other confidential information. writings coming into the hands of public officers in connection with their official functions must be accessible to the public. Likewise. to the annual performance reports of offices and agencies of government and government-owned or controlled corporations. [and] ensure openness of information. detention and prosecution.) Other acknowledged limitations to information access include diplomatic correspondence. 9. diplomatic and other national security matters. 9. and the statements of assets. 1405. 1997] and other related laws) and banking transactions (pursuant to the Secrecy of Bank Deposits Act [R. ibid. 1998. [Panganiban]) Re: Request for Copy of 2008 Statement of Assets. Dec. June 13. This jurisdiction recognizes the common law holding that there is a governmental privilege against public disclosure with respect to state secrets regarding military. Undeniably. 8293. information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest. Certainly. 6713. public consultations and hearing whenever appropriate x x x. reasonable and effective manner. as amended]). inspection. “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.. while “public concern” like “public interest” eludes exact definition and has been said to embrace a broad spectrum of subjects which the public may want to know. or copying of the records. such discretion does not carry with it the authority to prohibit access. for the judge has no right to presume that the prosecutor knows what he is doing on account of familiarity with the case. In the case at bar. However. Jr. However. custodians of public documents must not concern themselves with the motives. Detaining and Investigating Officers and Providing Penalties for Violations Thereof) The Right to Bail In bail application where the accused is charged with a capital offense. The Custodial Investigation Rights R. either because such matters naturally arouse the interest of an ordinary citizen. in the landmark case of Valmonte v. the Court notes the valid concerns of the other magistrates regarding the possible illicit motives of some individuals in their requests for access to such personal information and their publication. in which the accused stands charged with a capital offense. Article XI. the Constitution itself. public office is a public trust. under Section 17. Emphasizing the import and meaning of the foregoing constitutional provision. a “duty to disclose” sprang from the “right to know. there is a duty on the part of members of the government to disclose their SALNs to the public in the manner provided by law. There can be no realistic perception by the public of the nation’s problems nor a meaningful democratic decision-making if they are denied access to information of general interest. the Court. Thus. No. examined or copied by interested parties. has classified the information disclosed in the SALN as a matter of public concern and interest. 7438 (An Act Defining Certain Rights of Person Arrested. The moral or material injury which their misuse might inflict on others is the requestor’s responsibility and lookout. It is meant to enhance the widening role of the citizenry in governmental decision- making as well as in checking abuse in government. examination. Detained or Under Custodial Investigation as well as the Duties of the Arresting. The importance of the said right was pragmatically explicated that the incorporation of this right in the Constitution is a recognition of the fundamental role of free exchange of information in a democracy. the former is a command while the latter is a permission. Hence. In other words. The absence of objection from the prosecution is never a basis for the grant of bail in such cases.” Both of constitutional origin. After all. elucidated that the right to information goes hand in hand with the constitutional policies of full public disclosure and honesty in the public service. Judicial discretion is the domain of the judge before whom the petition for provisional liberty will be 62 . While public officers in the custody or control of public records have the discretion to regulate the manner in which records may be inspected.A. Belmonte. reasons and objects of the persons seeking to access to the records. Information is needed to enable the members of society to cope with the exigencies of the times. will it be proper for the judge to grant bail without conducting hearing if the prosecutor interposes no objection to such application? Jurisprudence is replete with decisions compelling judges to conduct the required hearings in bail applications. restrictions on access to certain records may be imposed by law. bail should be granted before arraignment. Romana-Cruz. such as arraignment. and the primacy given to human rights. and (2) foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be released on bail. No. a non-bailable offense. March 17. 2000. Narciso v. was because of the Olalia ruling. The mandated duty to exercise discretion has never been reposed upon the prosecutor. In the second place. (Joselito V. August 18. 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. 2000. 324 SCRA 321.R. However. the rule now is that an extraditee may be allowed to post bail during the pendency of an extradition proceeding. [Mendoza]) Government of Hongkong Special Administrative Region v. by a clear and convincing evidence.” while under Rule 116. for him to be allowed to post bail. No.R. G. Under Rule 114. 134504. and (2) that there exists special. En Banc (Bersamin) A close reading of the ruling of the SC in this case allowing former Senator Juan Ponce Enrile to post bail although he was charged of plunder. otherwise the accused may be precluded from filing a motion to quash. The reason why the Purganan ruling was re-examined is because of the modern trend in public international law where an individual person is no longer considered a mere object of international law but rather as a subject thereof. G. Sec. 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. 2nd Div. after re-examination. 1. [Panganiban]) Is a condition in an application for bail that accused be first arraigned before he could be granted bail valid? In the first place x x x in cases where it is authorized. 2015. there would then be no need for the arraignment of the accused. 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. his arraignment cannot be held. On the other hand. Feb. 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. For if the information is quashed and the case is dismissed. 2(b) of the Rules on Criminal Procedure.decided.” Imposed in Baylon v. (Lavides v. Sec. 3rd Div.). 63 . still he must prove that (1) once granted bail he will not be a flight risk or a danger to the community. CA. Sison was this mandatory duty to conduct a hearing despite the prosecution's refusal to adduce evidence in opposition to the application to grant and fix bail. Judge Olalia The decision of the SC in Government of the USA v. Juan Ponce Enrile v. Judge Purganan which says that “no bail rule applies in extradition since bail is available only to one who had arrested and detained for violation of Philippine criminal laws” was re-examined and. Flor Marie Sta. humanitarian and compelling circumstances that will justify the grant of bail to him. 1(b) the presence of the accused at the arraignment is required. 213847. Sandiganbayan (3rd Div. among which is the right to liberty. regardless of the crime charged. provided his continued incarceration is clearly shown to be injurious to his health or to endanger his life. humanitarian and compelling circumstances (his advanced age. he already evinced a similar personal disposition of respect for the legal processes. more importantly. “In our view. fragile state of health and medical predicament that will require the services of doctors of his choice) that will justify the grant of bail to him. “Granting bail to Enrile on the foregoing reasons is not unprecedented. he should be granted bail. denying him bail despite imperiling hid health and life would not serve the true objective of preventive incarceration during the trial. his long years of public service. The Court is further mindful of the Philippine’s responsibility in the international community arising from the national commitment under the Universal Declaration of Human Rights x x x. “X x x “Bail for the provisional liberty to the accused. which is to guarantee the appearance of the accused at the trial. With his solid reputation in both his public and his private lives. “On the other hand. the Court held: “Nonetheless. and (2) that there exist special. which is to entitle the accused to provisional liberty pending the trial. to mark time in order to wait for the trial to finish before a meaningful consideration of the application for bail can be had is to defeat the objective of bail. “The currently fragile state of Enrile’s health presents another compelling justification for his admission to bail x x x. In this case. or whenever so required by the court. There may 64 . in now granting Enrile’s petition for certiorari. X x x “It is relevant to observe that granting provisional liberty to Enrile will then enable him to have his medical condition be properly addressed and better attended to by competent physicians in the hospitals of his choice. Thus. should be allowed independently of the merits of the charge. “This national commitment to uphold the fundamental human rights as well as value the worth and dignity of every person has authorized the grant of bail not only to those charged in criminal proceedings but also to extraditees upon a clear and convincing showing: (1) that the detainee will not be a flight risk or a danger to the community. His personal disposition from the onset of his indictment for plunder. This will not only aid in his adequate preparation of his defense but. After all. will guarantee his appearance in court for the trial. and history’s judgment of him being at stake. and was granted bail during the pendency of his trial because he was not seen as a flight risk. his social and political standing and his having immediately surrendered to the authorities upon his having been charged in court indicate that the risk of his flight or escape from this jurisdiction is highly unlikely. has demonstrated his utter respect for the legal processes of this country. humanitarian and compelling circumstances. former Senator Enrile was shown not to be a flight risk or a danger to the community (his voluntary surrender to the authorities and his record of respect for court processes in earlier cases). Indeed. We also do not ignore that at an earlier time many years ago when he had been charged with rebellion with murder and multiple frustrated murder. and that there exist special. the main purpose of bail is to assure the presence of an accused during the trial of the case as required by the court. formal or otherwise. the Court is guided by the earlier mentioned principal purpose of bail. ’ including ‘the relevant limitations of the Bill of Rights’. (People v. En Banc [Per Curiam]) Does the right against self-incrimination extend to administrative proceedings? In Pascual v. For instance. In the United States. Rondero. En Banc [Melo]) May the Right against Self-incrimination be validly invoked during Inquiries in Aid of Legislation? [I]t has been held that “a congressional committee’s right to inquire is ‘subject to all relevant limitations placed by the Constitution on governmental action. v. a witness is only assured that his or her particular testimony and evidence derived from it will not be used 65 . that under the above-quoted provisions. although accused-appellant insists that hair samples were forcibly taken from him and submitted to the NBI for forensic examination. The Court. Kapunan (6 SCRA 1059 [1962]). 145 [1912]) and morphine forced out of the mouth of the accused may also be used as evidence against him (US v. 1991. (Bengzon. which could result in his loss of the privilege to practice medicine if found guilty. In contrast. 1999. 399-401. Article III of the 1987 Constitution which is ordinarily available only in criminal prosecutions. be circumstances decisive of the issue of bail x x x that the courts can already consider in resolving the application for bail without awaiting the trial to finish. 184. 2000. for what is proscribed is the use of testimonial compulsion or any evidence communicative in nature acquired from the accused under duress. Ong Siu Hong. and at the same time realizing for him the guarantees of due process as well as to be presumed innocent until proven guilty. such as an administrative investigation of a licensed physician who is charged with immorality.” The Right against Self-incrimination It bears emphasis. a witness can no longer be prosecuted for any offense whatsoever arising out of the act or transaction. 36 Phil. what is actually proscribed is the use of physical or moral compulsion to extort communication from the accused-appellant and not the inclusion of his body in evidence when it may be material. substance emitted from the body of the accused may be received as evidence in prosecution for acts of lasciviousness (US v. Tan Teng. citing the earlier case of Cabal v. 23 Phil. 20. the hair samples may be admitted in evidence against him. They are the transactional immunity and the use- and-derivative-use immunity. The Court thus balances the scales of justice by protecting the interest of the People through ensuring his personal appearance at the trial. 18. pointed out that the revocation of one’s license as a medical practitioner. En Banc [Padilla]) What are the two types of immunity statutes? Which has broader scope of protection? Our immunity statutes are of American origin. however. By its grant. 322 SCRA 160. (Secretary of Justice v. Jan. Consequently. Transactional immunity is broader in the scope of its protection. Nov. by the grant of use-and-derivative-use immunity. Lantion. Dec. 735 [1917]). is an even greater deprivation than forfeiture of property. 203 SCRA 767. extends to administrative proceedings which possess a criminal or penal aspect. Jr. Board of Medical Examiners (28 SCRA 344 [1969]). 9.” One of the basic rights guaranteed by the Constitution to an individual is the right against self-incrimination. Senate Blue Ribbon Committee. 320 SCRA 383. we held that the right against self-incrimination under Section 17. there are two types of statutory immunity granted to a witness. the right against self-incrimination was stripped of its absoluteness. So long as jeopardy has been attached under one of the informations charging said offense. 21). 231 SCRA 783. even if there has been neither conviction nor acquittal in either case. it misread the raison d’ etre and the long pedigree of the right against self-incrimination vis-à-vis immunity statutes. the right against self-incrimination was ensconced in the fundamental laws of all civilized countries. En Banc [Puno]) The Right against Double Jeopardy The Two (2) Kinds of Double Jeopardy: Our Bill of Rights deals with two (2) kinds of double jeopardy. April 26. a witness is given what has come to be known as transactional or a use-derivative-use immunity x x x. (Mapa. even if the offense charged are not the same. however. the important inquiry relates to the identity of 66 . 1994. 797-798. provided that he is charged with different offenses. Laws that tend to erode the force of these preeminent rights must necessarily be given a liberal interpretation in favor of the individual. these immunity statutes are not a bonanza from government. rightly. The first sentence of Clause 20. Article III of the Constitution ordains that “no person shall be twice put in jeopardy of punishment for the same offense. Over the years. must be strictly construed against the accused? [W]e reject respondent court’s ruling that the grant of section 5 immunity must be strictly construed against the petitioners. v. Not the least of these abuses is the expert use of coerced confessions to send to the guillotine even the guiltless. Jr. or the offense charged in one case is not included in. En Banc [Puno]) Is the grant of immunity to an accused willing to testify for the government a special privilege and. one may be twice put in jeopardy of punishment of the same act. 1994. 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 accommodate the need. Under the first sentence. conviction or acquittal under either the law or the ordinance shall bar a prosecution under the other. Incidentally. Those given the privilege of immunity paid a high price for it – the surrender of their precious right to be silent. To insulate these statutes from the virus of unconstitutionality.” Thus. If the two charges are based on one and the same act. 805-806. Jr. Sandiganbayan. conviction or acquittal under either shall constitute a bar to another prosecution for the same act. came the need to assist government in its task of containing crime for peace and order is a necessary matrix of public welfare. or does not include. as if it was gifted by the government. The days of inquisition brought about the most despicable abuses against human rights. v. To guard against the recurrence of this totalitarian method. It simplistically characterized the grant as a special privilege. the second contemplates double jeopardy of punishment for the same act. Sandiganbayan. where the offense charged are penalized either by different sections of the same statute or by different statutes. Our hierarchy of values demands that the right against self-incrimination and the right to be silent should be accorded greater respect and protection. Quite clearly. therefore.against him or her in a subsequent prosecution. Section 1(now Sec. April 26. Elsewhere stated. ex gratia. In taking this posture. owing to the fact that one constitutes a violation of an ordinance and the other a violation of statute.” The second sentence of said clause provides that “if an act is punishable by a law and an ordinance. The government has a right to solve crimes but it must do it. The second sentence applies. the first sentence prohibits double jeopardy of punishment for the same offense whereas. the crime charged in the other case. such conviction or acquittal is not indispensable to sustain the plea of double jeopardy of punishment or the same offense. 231 SCRA 783. the defense may be availed of in the other case involving the same offense. (Mapa. (People v. has been declared by the Court as not a penal law. in People v. the retroactive application of R. (d) when a valid plea has been entered. 659-660.A. R. Penal laws are those acts of the Legislature which prohibit certain acts and establish penalties for their violations. or the second offense includes or is necessarily included in the offense charged in the first information. 1990.A. i. 181 SCRA 648. one which prescribes rules of procedure by which courts applying laws of all kinds can properly administer justice. (b) before a competent court. What the decree does is to define the offense and provide for the penalty that may be imposed. (3) the second jeopardy must be for the same offense. The constitutional protection against double jeopardy is available only where an identity is shown to exist between the earlier and the subsequent offenses charged. 1866 does not possess the elements of a bill of attainder. April 15.D. It is a substantive law on jurisdiction which is not penal in character. 1998 [Panganiban]) The Right against Ex Post Facto Law and Bill of Attainder What is a bill of attainder? Is P. is the most essential. defined a bill of attainder as a legislative act which inflicts punishment on individuals or members of a particular group without a judicial trial. (c) after arraignment. Ferrer. 1996) To substantiate a claim of double jeopardy. Panga. the imposition of a punishment. or those that define crimes. The same contention has already been rejected by the court several times considering that the right 67 . the following must be proven: (1) A first jeopardy must have attached prior to the second.. 8249 cannot be challenged as unconstitutional. 8249. is incorrect. 30.A. 7975 has been diluted by the enactment of R. Essential to a bill of attainder are a specification of certain individuals or a group of individuals. as such elements are set out in the respective legislative definitions of the offenses involved. penal or otherwise. CA. P. Petitioner’s and intervenors’ contention that their right to a two-tiered appeal which they acquired under R. Jan.A. This last element. No. It does not seek to inflict punishment without a judicial trial. its mode of appeal and other procedural matters.A.e. July 24. and the lack of judicial trial. Not being a penal law.D. prohibits retrospectivity of penal laws. (2) the first jeopardy must have been validly terminated. treat of their nature. or is an attempt to commit the same or is a frustration thereof. (Misolas v. Nowhere in the measure is there a finding of guilt and an imposition of a corresponding punishment. 289 SCRA 159. 8249 is not a penal law. 1606 as regards the Sandiganbayan’s jurisdiction. 1866 a bill of attainder? [T]he Court. generally.D. En Banc [Cortes]) What is an ex post facto law? Is R. and (e) the case was dismissed or otherwise terminated without the express consent of the accused. specifying the qualifying circumstances that would aggravate the offense. but clearly a procedural statute. 8249 an ex post facto law? Ex post facto law. The question of identity or lack of identity of offenses is addressed by examining the essential elements of each of the two offenses charged.offenses charged. which amended P. the total lack of court intervention in the finding of guilt and the determination of the actual penalty to be imposed. Legal jeopardy attaches only: (1) upon a valid indictment. and provide for their punishment. R. Quijada. (Cuison v. 7975.A. 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. 259 SCRA 191. No. generally under Commonwealth Act No. 8249 pertains only to matters of procedure. HRET. CJ]) The Jus Sanguinis Principle on Citizenship The Philippine law on citizenship adheres to the principle of jus sanguinis. May 7. and being merely an amendatory statute it does not partake the nature of an ex post facto law. is a natural-born citizen thereof. 2000. On the removal of the intermediate review of facts.. No. Jan. Those who elect Philippine citizenship in accordance with paragraph (3). naturalized citizens are those who have become Filipino citizens through naturalization. G. Thereunder. 337 SCRA 543. The mode of procedure provided for in the statutory right of appeal is not included in the prohibition against ex post facto laws.. (Casan Macode Maquiling v. which repealed the former Naturalization Law (Act No. No. En Banc [Purisima]) Ways of acquiring Citizenship There are two ways of acquiring citizenship: (1) by birth. (Antonio Bengson III v. 20. al. and by Republic Act No. It does not mete out a penalty and. It likewise demands the concomitant duty to maintain allegiance to one’s flag and country. Lacson v. En Banc [Kapunan]) Natural-born Citizens Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. 2927). April 16. R. 530. As defined in the Constitution.A. 128096. and (2) by naturalization. G. No. 142840. et al. It has been ruled that adjective statutes may be made applicable to actions pending and unresolved at the time of their passage. a child follows the nationality or citizenship of the parents regardless of the place of his/her birth. et. Section 1 hereof shall be deemed natural-born citizens. 2001.R. Article IV. therefore. Aug. 473. The Executive Secretary. (Section 2. 195649. These ways of acquiring citizenship correspond to the two kinds of citizens: the natural-born citizen. 2013. A person who at the time of his birth is a citizen of a particular country. It is a badge of identity that comes with attendant civil and political rights accorded by the State to its citizens. the law did not alter the rules of evidence or the mode of trial. Moreover.to appeal is not a natural right but statutory in nature that can be regulated by law.A. COMELEC. and the naturalized citizen. 9. G.R. COMELEC. otherwise known as the Revised Naturalization Law. 1999 [Martinez]) CITIZENSHIP Citizenship is not a matter of convenience. the Supreme Court still has the power of review to determine if the presumption of innocence has been convincingly overcome. En Banc [Sereno. 1987 Constitution) 68 . (Panfilo M. does not come within the prohibition.” On the other hand. as opposed to the doctrine of jus soli which determines nationality or citizenship on the basis of place of birth. natural-born citizens “are those citizens of the Philippines from birth without having to perform any act to acquire or perfect his Philippine citizenship.R. (Valles v. R. 8249 has preserved the accused’s right to appeal to the Supreme Court to review questions of law. At any rate. As a matter of fact. it was not because there was any objection to the notion that persons of “unknown parentage” are not citizens but only because their number was not enough to merit specific mention.. X x x [T]he deliberations of the 1934 Constitutional Convention show that the framers intended foundlings to be covered by the enumeration. natural-born and naturalized. If one did not have to undergo the cumbersome process of naturalization. The policy is clear: it is to recognize foundlings. No. The first is Article 14 of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws under which a foundling is presumed to have the “nationality of the country of birth. (Antonio Bengson III v. This inclusive policy is carried over into the 1973 and 1987 Constitutions. while yet ungratified by the Philippines. are generally accepted principles of international law. While the 1935 Constitution’s enumeration is silent as to foundlings. a decision denying foundlings such status is effectively a denial of their birthright. 69 . as a class. there is a need to examine the intent of the framers. foreigners is downright discriminatory. No. X x x Domestic laws on adoption also support the principle that foundlings are Filipinos. There is no third category. 142840.” x x x. It just doesn’t make any sense. foundlings are as a class. X x x Foundlings are likewise citizens under international law. G. and R. irrational. May 7. the adoptee must be a Filipino in the first place to be adopted. En Banc [Kapunan]) Is a Foundling a Natural-born Citizen? To deny full Filipino citizenship to all foundlings and render them stateless just because there may be a theoretical chance that one among the thousands of these foundlings might be the child of not just one. Because of silence and ambiguity in the numeration with respect to foundlings. The principles found in two conventions. as Filipinos. the constitutional silence is fully explained in terms of linguistic efficiency and the avoidance of redundancy. i. X x x Though the Rafols amendment was not carried out. under Article IV. In general.A. Given the statistical certainty 99. 473.that any child born in the Philippines would be a natural-born citizen. an international law can become part of the sphere of domestic law either by transformation or incorporation. UNCRC (UN Convention on the Rights of the Child) and ICCPR (International Covenant on Civil and Political Rights) is to obligate the Philippines to grant nationality from birth and ensure that no child is stateless. and unjust. natural-born citizens. These laws do not provide that adoption confers citizenship upon the adoptee.R.e. X x x In other words. 9139. Your Honor. but two. it means that he is natural-born. there is no restrictive language which would definitely exclude foundlings either. constitutional interpretation and the use of common sense are not separate disciplines. Section 1(3) of the 1935 Constitution. X x x The common thread of the UDHR (Universal Declaration of Human Rights). and it cannot be accomplished by the application of our present naturalization laws. 2001.9% . Commonwealth Act No. HRET. Rather. This grant of nationality must be at the time of birth. Under the 1987 Constitution. both of which require the applicant to be at least eighteen (18) years old. There is no reason why this Honorable Court should use an improbable hypothetical to sacrifice the fundamental political rights of an entire class of human beings. there are only two (2) kinds of Filipino citizens. as amended. a person is simultaneously considered a national by the said states. by some positive act. May 26. namely: (1) by naturalization. dual allegiance is the result of an individual’s volition. The word employed by Section 5 is “shall. Article IV. Manzano. until the contrary is proved. 1999. is concurrently considered a citizen of both states. The second is the principle that a foundling is presumed born of citizens of the country where he is found. No. under the law. Dual citizenship arises when. 2016. Poe-Llamanzares v. En Banc [Perez]) Loss or Reacquisition of Philippine Citizenship Philippine citizenship may be lost or reacquired in the manner provided by law (Section 3. For instance. and (3) by direct act of Congress. unless by their act or omission they are deemed. Dual allegiance. (2) by repatriation. COMELEC. We cannot be restrictive as to their application if we are a country which calls itself civilized and a member of the community of nations. contained in Article 2 of the 1961 United Nations Convention on the Reduction of Statelessness x x x. such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. 221697. Dual Citizenship distinguished from Dual Allegiance. on the other hand. 1987 Constitution) This provision is not self-executing. 1987 Constitution) Dual Citizenship and Dual Allegiance Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law. March 8. 1987 Constitution) There are three (3) ways by which Philippine citizenship may be reacquired. En Banc [Mendoza]) 70 . (Section 5. Such a person.” The law referred to is a future law. refers to a situation in which a person simultaneously owes. G R. Article IV. loyalty to two or more states. all of the international law conventions and instruments on the matter of nationality of foundlings were designed to address the plight of a defenseless class which suffers from a misfortune not of their making. as a result of the concurrent application of the different laws of two or more states. X x x (Mary Grace Natividad S. While dual citizenship is involuntary. The Effect of Marriage Citizens of the Philippines who marry aliens shall retain their citizenship. to have renounced it. (Section 4. A foundling is. Xxx In sum. (Mercado v. 307 SCRA 630. presumed to have been born on the territory of the State in which it was found. Article IV. ipso facto and without any voluntary act on his part. By electing Philippine citizenship. in effect. it was established that he travelled several times to the US using his American passport. 307 SCRA 630. they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states. Held: 71 . May 26. 2013. 7160. G. therefore. unless by their act or omission they are deemed to have renounced Philippine citizenship. No. The law applies to: (1) former natural-born citizens of the Philippines who have already become citizens of a foreign country through naturalization. such an individual has not effectively renounced his foreign citizenship. May 26. 195649. 9225 (The Citizenship Retention and Reacquisition Act of 2003) Sometimes. 1987 Constitution. who must be subject to strict process with respect to the termination of their status. such candidates at the same time forswear allegiance to the other country of which they are also citizens and thereby terminate their status as dual citizens. et al. disqualified to run for mayor pursuant to Sec. Manzano. 135083. That is of no moment. for candidates with dual citizenship. G. the concern of the Constitutional Commission was not with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization.. Casan Macode Maquiling v. G. 1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli. 1999 [Mendoza]) Republic Act No.R. are persons with mere dual citizenship disqualified to run for elective local positions under Section 40(d) of the Local Government Code? In including Section 5 in Article IV on citizenship. this law has been referred to as the dual citizenship law.What is the main concern of Section 5. In both cases. It may be that. they are given the opportunity to either reacquire (reacquisition) or retain (retention) their Philippine citizenship.” Consequently. Thus. from the point of view of the foreign state and of its laws. they will possess dual citizenship. No.A. 307 SCRA 630. 7061). (Mercado v. (Mercado v. En Banc (Sereno. No. 1999 [Mendoza]) Instances when a citizen of the Philippines may possess dual citizenship considering the citizenship clause (Article IV) of the Constitution. he reverted to his prior status as a person having dual citizenship and. Thus. the phrase “dual citizenship” in R.R. upon the filing of their certificate of candidacy. and (2) natural-born citizens of the Philippines who may wish to become a citizen of a foreign country through naturalization after the effectivity of this Act. No. 135083. 40 (d) of the Local Government Code (R. Hence. Manzano. 2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their father’s country such children are citizens of that country. COMELEC. persons with mere dual citizenship do not fall under this disqualification. No. Section 40(d) (Local Government Code) must be understood as referring to “dual allegiance. Unlike those with dual allegiance.A. 3) Those who marry aliens if by the laws of the latter’s country the former are considered citizens. CJ) When after renouncing his American citizenship upon his filing of certificate of candidacy for mayor. that was an effective recantation of his renunciation of his foreign citizenship.R. it should suffice if. on citizenship? Consequently. April 16. Article IV. The pivotal question to determine is whether he was solely and exclusively a Filipino citizen at the time he filed his certificate of candidacy. thus completing the requirements for eligibility to run for public office. thereby rendering him eligible to run for public office. By renouncing his foreign citizenship. After reacquiring his Philippine citizenship. However. It requires an absolute and perpetual renunciation of the foreign citizenship and a full divestment of all civil and political rights granted by the foreign country which granted the citizenship. Section 5(2) of The Citizenship Retention and Re-acquisition Act of 2003 provides: Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: (2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and. Arnado renounced his American citizenship by executing an Affidavit of Renunciation. he continued to use his US passport to travel in and out of the country.A. which he acquired by repatriation. X x x Rommel Arnado took all the necessary steps to qualify to run for a public office. regardless of the effect of such renunciation under the laws of the foreign country. only to be violated the next day. after renouncing his foreign citizenship. make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath. he became eligible to run for public office. he was deemed to be solely a Filipino citizen. There is no question that after performing these twin requirements required under Section 5(2) of R. it is nevertheless an act which repudiates the very oath of renunciation required for a former Filipino citizen who is also a citizen of another country to be qualified to run for a local elective position. Indeed. Arnado had therefore become a dual citizen. Xxx We agree with the COMELEC En Banc that such act of using a foreign passport does not divest Arnado of his Filipino citizenship. He took the Oath of Allegiance and renounced his foreign citizenship. Arnado himself subjected the issue of his citizenship to attack when. 9225 or the Citizenship Retention and Re-acquisition Act of 2003. At the time. he likewise possessed American citizenship. Act No. Xxx While the act of using a foreign passport is not one of the acts enumerated in Commonwealth Act No. by 72 . 63 constituting renunciation and loss of Philippine citizenship. at the time of the filing of the certificate of candidacy. Arnado re-acquired his Philippine citizenship. the citizen performs positive acts showing his continued possession of a foreign citizenship. The renunciation of foreign citizenship is not a hollow oath that can simply be professed at any time. however. Arnado took the Oath of Allegiance not just only once but twice. this legal presumption does not operate permanently and is open to attack when. However. By taking the Oath of Allegiance to the Republic. after renouncing the foreign citizenship. R. 3 rd Div. his subsequent use of his Philippine passport does not undo his earlier use of his US passport. By the time he filed his certificate of candidacy Arnado was a dual citizen enjoying the rights and privileges of Filipino and American citizenships.. Any act which violates the oath of renunciation opens the citizenship issue to attack. No. It must be possessed not just at the time of the renunciation of the foreign citizenship but continuously. Xxx We therefore hold that Arnado. [Callejo. are required to take not only the Oath of Allegiance to the Republic of the Philippines but also to personally renounce foreign citizenship in order to qualify as a candidate for public office.representing himself as an American citizen. (Edison So v. Naturalization Naturalization signifies the act of formally adopting a foreigner into the political body of a nation by clothing him or her with the privileges of a citizen. It was after complying with the requirements that he performed positive acts which effectively disqualified him from running for an elective public office pursuant to Section 40(d) of the Local Government Code of 1991. on the other hand. for he in fact did. G. We agree with the pronouncement of the COMELEC First Division that “Arnado’s act of continuously using his US passport effectively negated his Affidavit of Renunciation. He is disqualified not only from holding the public office but even from becoming a candidate in the May 2011 elections.A. Dual citizens by naturalization. Xxx The citizenship requirement for elective public office is a continuing one. 9225. as it effectively imposed on him a disqualification to run for an elective local position. No. Section 40(d) of the Local Government Code applies to his situation. Arnado’s category of dual citizenship is that by which foreign citizenship is acquired through a positive act of applying for naturalization. he used his US passport. it took place the instant Arnado represented himself as an American citizen by using his US passport. In the same way that the use of his foreign passport does not undo his Oath of Renunciation. by using his US passport after renouncing his American citizenship. Arnado voluntarily and effectively reverted to his earlier status as a dual citizen.]) 73 . Sr. Republic of the Philippines. Arnado’s subsequent use of his Philippine passport does not correct the fact that after he renounced his foreign citizenship and prior to filing his certificate of candidacy. he was not qualified to run for a local elective position. Xxx Besides. January 29. Such reversion was not retroactive. has recanted the same Oath of Renunciation he took. He was qualified to vote. 170603. 2007. who are not required by law to take the oath of renunciation as the mere filing of the certificate of candidacy already caries with it an implied renunciation of foreign citizenship. This act of using a foreign passport after renouncing one’s foreign citizenship is fatal to Arnado’s bid for public office.” This does not mean that he failed to comply with the twin requirements under R. but by express disqualification under Section 40(d) of the Local Government Code. This is distinct from those considered dual citizens by virtue of birth. To reiterate. 2007. No. as amended. and (c) legislative naturalization in the form of a law enacted by Congress bestowing Philippine citizenship to an alien. (b) judicial naturalization pursuant to C. there are three ways by which an alien may become a citizen by naturalization: (a) administrative naturalization pursuant to R. 225973.Ways by which an Alien may become a Citizen by Naturalization Under current and existing laws. G. What the legislature had in mind was merely to prescribe another mode of acquiring Philippine citizenship which may be availed of by native born aliens.R.A. Republic of the Philippines. then such remedy should be exhausted first before the court’s judicial power can be sought. 9139. by reason of lack of citizenship requirement. Republic of the Philippines. [Callejo.A. G. No. 170603. less technical and more encouraging. less technical and more encouraging which is administrative rather than judicial in nature. En Banc [Peralta]) THE LAW OF PUBLIC OFFICERS Public Office is a Public Trust 74 . X x x. (Saturnino C. (Edison So v. the intention of the legislature in enacting R. No. 9139 may be availed of only by native-born aliens who lived here in the Philippines all their lives.A. before a party is allowed to seek the intervention of the court. November 8.] ADMINISTRATIVE LAW The Doctrine of Primary Jurisdiction or Prior Resort The Doctrine of Exhaustion of Administrative Remedies Under the doctrine of exhaustion of administrative remedies. No. January 29. For reasons of comity and convenience. 473. 2016. 9139? R. a native born alien has the choice to apply for judicial or administrative naturalization. 9139 was to make the process of acquiring Philippine citizenship less tedious. one should have availed first of all the means of administrative processes available.. 9139 (Providing for Administrative Naturalization of an Alien) R. Rear Admiral Ernesto C. et al.. cannot practice their profession. No. courts of justice shy away from dispute until the system of administrative redress has been completed and complied with. No.A. 9139 was enacted as a remedial measure intended to make the process of acquiring Philippine citizenship less tedious.A.. The only implication is that. who never saw any other country and all along thought that they were Filipinos. subject to the prescribed qualifications and disqualifications. who have demonstrated love and loyalty to the Philippines and affinity to the customs and traditions of the Filipino people. 170603.A. No. 3 rd Div. No. Sr. 3rd Div. Enriquez. 2007. thus promoting “brain gain” for the Philippines. G. If resort to a remedy within the administrative machinery can still be made by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction. v. No. Sr. May All Aliens Avail of the Benefits of Administrative Naturalization under R. Ocampo. et al. (Edison So v.R.R. so as to give the administrative agency concerned every opportunity to correct its error and dispose of the case. [Callejo. January 29.]) Republic Act No. It likewise addresses the concerns of degree holders who. No. except the Supreme Court. Conchita Carpio-Morales v. if in his judgment the evidence of guilt is strong.R.A. R. unless there is a prima facie evidence that the subject matter of the investigation is outside the jurisdiction of the Office of the Ombudsman. 6770 is declared UNCONSTITUTIONAL. (Sec. 2015 (Perlas-Bernabe) The Ombudsman has Administrative Disciplinary Authority over all Public Officers and Employees The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions. except over officials who may be removed only by impeachment or over Members of Congress.A. 14. or (c) the respondent’s continued stay in office may prejudice the case filed against him. (Sec. No. instrumentalities and agencies. Drilon The Powers of the Ombudsman Conchita Carpio-Morales v. G. 21. oppression or grave misconduct or neglect in the performance of duty. and (a) the charge against such officer or employee involves dishonesty. No.). negligence or petition of the respondent. except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault. Court of Appeals (6th Div. (b) the charges would warrant removal from the service. (Sec. 24.A. No court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman. the Ombudsman may impose Preventive Suspension The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation. R. local government. 6770) Caveat: The second paragraph of Section 14 of Republic Act No.). 6770) In the exercise of its Administrative Jurisdiction. Court of Appeals (6th Div. November 10. in which case the period of such delay shall not be counted in computing the period of suspension herein provided. November 10. Nos. R. 6770) No Writ of Injunction shall be issued by any Court to delay an Investigation being conducted by the Ombudsman No writ of injunction shall be issued by any court to delay an investigation being conducted by the Ombudsman under this Act. on pure question of law. government-owned or controlled corporations and their subsidiaries. 2015 (Perlas-Bernabe) Nature of Appointment as Discretionary Flores v. and the Judiciary. The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six (6) month.R. 217126-27. Nos. while the policy against the issuance of provisional injunctive writs by 75 . including Members of the Cabinet. G. 217126-27. GR Nos. E. April 29. decisions of the Ombudsman in administrative cases should be filed with the Court of Appeals under that ruling. as it contravened Section 30. Subtitle A.) The Law on Nepotism Under the definition of nepotism. it is immaterial who the appointing or recommending authority is. (Conchita Carpio Morales v. Xxx In all administrative disciplinary cases. there are four situations covered. 7. (Sec. No. or the person exercising immediate supervision over the appointee. or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of the order. Desierto. To constitute a violation of the law. orders.O. (c) physicians. Effectivity and Finality of Decisions of Ombudsman All provisionary orders of the Office of the Ombudsman are immediately effective and executory. En Banc [Perlas-Bernabe]). No. Article VI of the Constitution. 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. one is guilty of nepotism if an appointment is issued in favor of a relative within the third civil degree of consanguinity or affinity of any of the following: a) appointing authority. En Banc [Pardo]) What are the exemptions from the operation of the rules on nepotism? The following are exempted from the operation of the rules on nepotism: (a) persons employed in a confidential capacity. In the last two mentioned situations. directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court. (CSC v. In effect the provision increased the appellate jurisdiction of the Supreme Court without its consent under that provision. November 10. 787 [1998]. after his or her appointment to any position in an office or bureau. V.courts other than the Supreme Court to enjoin an investigation conducted by the Office of the Ombudsman under the first paragraph of the said provision is declared INEFFECTIVE until the Court adopts the same as part of the rules of procedure through an administrative circular duly issued therefor. Court of Appeals [Sixth Division]. 217126-27. Clearly. G. (b) teachers. 2015. directives. Henceforth. Dacoycoy. 1999. 292) Preventive Suspension 76 .R. c) chief of the bureau or office. 135805. Chap. (This provision was declared unconstitutional by the Supreme Court in Fabian v. Bk. contracts marriage with someone in the same office or bureau. 356 Phil. 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. in which event the employment or retention therein of both husband and wife may be allowed. Pedro O. Title I. and d) person exercising immediate supervision over the appointee. b) recommending authority. 59. GR Nos. the respective laws covering them are explicit. If. and purposes of imposing preventive suspension and suspension as penalty. service of the preventive suspension cannot be credited as service of penalty. Delim. This is the penalty. 773 [1992]) Reason for the Doctrine The rationale for this holding is that when the electorate put him back into office. Yabut v. Beja. v. 694 [1992]) establishes a clear-cut distinction between suspension as preventive measure and suspension as penalty. Sept. then he is suspended. finds no application to criminal cases pending against petitioner. Xxx En passant. is readily cognizable as they have different ends to be achieved. No. 233 SCRA 310. Santos. The foregoing rule. Arturo C. 77 . 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. 139043. then such reelection is considered a condonation of his past misdeeds. by considering the purpose aspect of the suspensions. G. Office of the Ombudsman. 212 SCRA 768. 1999 [Quisumbing]) Caveat: This Doctrine of Condonation was abandoned by the Supreme Court in the more recent case of Conchita Carpio Morales v. That preventive suspension is not a penalty is in fact explicitly provided by Section 24 of Rule XIV of the Omnibus Rules Implementing Book V of the Administrative Code of 1987 (Executive Order No. 2005. Gervacio. a preliminary step in an administrative investigation. or in their nature as preventive imprisonment involves restriction of personal liberties which is not the case with preventive suspension. armed with such knowledge. Court of Appeals. removed or dismissed. criminal law. 466 SCRA 277.. neither may the concept of crediting. (Mayor Alvin B. et al. Hon. If after such investigation. For not only are they distinct in the objective or purpose. 292) and other Pertinent Civil Service Laws. the charge is established and the person investigated is found guilty of acts warranting his suspension or removal. it is presumed that it did so with full knowledge of his life and character. The purpose of the suspension order is to prevent the accused from using his position and the powers and prerogatives of his office to influence potential witnesses or tamper with records which may be vital in the prosecution of the case against him. Xxx Clearly. including his past misconduct. Mojica. 333 [2001]. 316-317 [1994].R. [Carpio-Morales]) The Doctrine of Condonation A public official cannot be removed for administrative misconduct committed during a prior term. To rule otherwise is to disregard above-quoted Sections 24 and 25 of the Administrative Code of 1987 and render nugatory the substantial distinction between. 9. 368 SCRA 323. The distinction. 207 SCRA 689. preventive imprisonment in the service of a convict’s term of imprisonment (Article 29 of the Revised Penal Code) be applied to preventive suspension during investigation in administrative law in the service of a respondent’s final penalty of suspension. Jurisprudential law (Reyes v. Sr. Aug. (Aguinaldo v. it still reelects him. 217126-27. Preventive suspension is merely a preventive measure. 3rd Div. Garcia v. Court of Appeals (Sixth Division). however. (Quimbo v. 10. probably. in Pascual. in the words of Pascual. which dated provisions do not reflect the experience of the Filipino people under the 1973 and 1987 Constitutions. At any rate. “[They] are not relied upon as precedents. In fact. and also. it proceeded to state that: The weight of authorities x x x seems to incline toward the rule denying the right to remove from office because of misconduct during a prior term. and carried over in numerous cases after. Note that the doctrine of stare decisis does not preclude this Court from revisiting existing doctrine. which. of course. these US cases are only of persuasive value in the process of this Court’s decision-making. The conclusion is at once problematic since the Court has now uncovered that there is really no established weight of authority in the United States (US) favoring the doctrine of condonation. Pascual was a 1959 case decided under the 1935 Constitution. Therefore. the ultimate analysis is on whether or not the condonation doctrine. x x x at least seventeen (17) states in the US have abandoned the condonation doctrine. to which we fully subscribe. can be held up against prevailing legal norms. X x x Xxx Overall. without any cogent exegesis to show that Pascual had accounted for the numerous factors relevant to the debate on condonation. to a divergence of views with respect to the question of whether the subsequent election or appointment condones the prior misconduct.” The condonation doctrine – which connotes this same sense of complete extinguishment of liability x x x . It is a jurisprudential creation that originated from the 1959 case of Pascual v.” Therefore. theorizes that an official’s re-election denies the right to remove him from office due to a misconduct during a prior term. En Banc (Perlas-Bernabe).is not based on statutory law. Provincial Board of Nueva Ecija (106 Phil. the Court. as espoused in Pascual. In fact. the legal landscape has radically shifted. the foregoing data clearly contravenes the preliminary conclusion in Pascual that there is a “weight of authority” in the US on the condonation doctrine. The Origin of the Condonation Doctrine Generally speaking. 78 . the Court agrees x x x that since the time Pascual was decided. the sheer impact of the condonation doctrine on public accountability. which was therefore decided under the 1935 Constitution. including. but as guides of interpretation.” Without going into the variables of these conflicting views and cases. Again. However. condonation has been defined as “[a] victim’s express or implied forgiveness of an offense. in part. the plain difference in setting.November 10. 466 [1959]). the abandonment of the doctrine was given prospective application only. [especially] by treating the offender as if there had been no offense. X x x In this case. to differences in statutes and constitutional provisions. 2015. calls for Pascual’s judicious re-examination. Hon. Xxx As there was no legal precedent on the issue at that time. an outright adoption of the doctrine in this jurisdiction would not have been proper. resorted to American authorities and “found that cases on the matter are conflicting due in part. and in the fulfillment of this duty all citizens may be required by law to render personal military or civil service. the approach in dealing with public officers underwent a significant change. of their right to elect officers x x x. Sojor (577 Phil. was – and still remains – the above-cited postulates of Pascual. who are ssumed to have known the life and character of candidates. As in the US. the penalty of removal may not be extended beyond the term in which the public officer was elected for each term is separate and distinct x x x. What remains apparent from the text of these cases is that the basis for condonation. thereby cutting the right to remove him therefor. an elective official’s re-election cuts off the right to remove him for an administrative offense committed during a prior term – was adopted hook. Hence. line. courts may not deprive the electorate. citing Civil Service Commission v. The new charter introduced an entire article on accountability of public officers. With respect to its applicability to administrative cases. there is no sovereign will to disenfranchise x x x. which was lifted from rulings of US courts where condonation was amply supported by their own state laws. Xxx A thorough review of the cases post-1987 x x x would show that the basis for condonation under the prevailing constitutional and statutory framework was never accounted for. and declared that “[p]ublic office is a public trust. it was decided within the context of the 1935 Constitution which was silent with respect to public accountability. With the advent of the 1973 Constitution. Pascual was a decision promulgated in 1959. there was no glaring objection confronting the Pascual Court in adopting the condonation doctrine that originated from select US cases existing at that time.Testing the Condonation Doctrine Pascual’s ratio decidendi may be dissected into three (3) parts: First. and considering the dearth of jurisprudential rulings on the matter. 72 [2008]). as to them. found in Article XIII. the Court undertakes an examination of our current laws in order to determine if there is legal basis for the continued application of the doctrine of condonation. and Third. acknowledged. Second. Therefore. the propriety of condonation is – as it should be – dependent on the legal foundation of the adjudicating jurisdiction. the core premise of condonation - that is. as jurisprudential doctrine. Section 1 thereof positively recognized. or of the nature of public office being a public trust. 52. Xxx As earlier intimated. Xxx The Court. “[p]ublic officers and 79 . and sinker in our jurisprudence largely because the legality of that doctrine was never tested against existing legal norms. The provision in the 1935 Constitution that comes closest in dealing with public office is Section 2.” Perhaps owing to the 1935 Constitution’s silence on public accountability. as well as the variance in the policy considerations. Article II which states that “[t]he defense of the State is a prime duty of government. also clarified that the condonation doctrine would not apply to appointive officials since. an elective official’s re-election serves as a condonation of previous misconduct.” Accordingly. ” After the turbulent decades of Martial Law rule.employees shall serve with the highest degree of responsibility. and took effect on January 1. which sets forth in the Declaration of Principles and State Policies in Article II that “[t]he State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption. loyalty and efficiency. Note. otherwise known as the “Local Government Code of 1991” (LGC). as mandated under the 1987 Constitution. For local elective officials like Binay. or even another elective post. Jr. in the Code of Conduct and Ethical Standards for Public Officials and Employees. Nothing therein states that the administrative liability therefor is extinguished by the fact of re- election x x x. however. More significantly. liability arising from administrative offenses may be condoned by the 80 . 1991. Xxx The same mandate is found in the Revised Administrative Code under the section of the Civil Service Commission.. and there is simply no constitutional or statutory basis in our jurisdiction to support the notion that an official elected for a different term is fully absolved of any administrative liability arising from an offense done during a prior term. integrity. Section 66 (b) of the LGC states that the penalty of suspension shall not exceed the unexpired term of the elective local official nor constitute a bar to his candidacy for as long as he meets the qualifications required for the office. which was approved on October 10. the concept of public office is a public trust and the corollary requirement of accountability to the people at all times. In the same sense. In contrast. the Framers put primacy on the integrity of the public service by declaring it as a constitutional principle and a State policy. To begin with. 1992. Reading the 1987 Constitution together with the above-cited legal provisions now leads this Court to the conclusion that the doctrine of condonation is actually bereft of legal bases. In this jurisdiction. is plainly inconsistent with the idea that an elective local official’s administrative liability for a misconduct committed during a prior term can be wiped off by the fact that he was elected to a second term of office. and also. Xxx Related to this provision is Section 40 (b) of the LGC which states that those removed from office as a result of an administrative case shall be disqualified from running for any elective local position. and shall remain accountable to the people. Election is not a mode of condoning an administrative offense. 7160. the Filipino People have framed and adopted the 1987 Constitution. the 1987 Constitution strengthened and solidified what have been first proclaimed in the 1973 Constitution by commanding public officers to be accountable to the people at all times.” Learning how unbridled power could corrupt public servants under the regime of a dictator. suspend or remove an elective local official from office are stated in Section 60 of Republic Act No. Section 52 (a) of the RRACCS provides that the penalty of dismissal from service carries the accessory penalty of perpetual disqualification from holding public office. the grounds to discipline. that the provision only pertains to the duration of the penalty and its effect on the official’s candidacy. election pertains to the process by which a particular constituency chooses an individual to hold a public office. in effect. nothing in Section 66 (b) states that the elective local official’s administrative liability is extinguished by the fact of re-election. it is contrary to human experience that the electorate would have full knowledge of a public official’s misdeeds. Relatedly. In this jurisdiction. when re-electing a local official. That being said. In fact. X x x. Suffice it to state that no such presumption exists in any statute or procedural rule. At best. The Ombudsman correctly points out the reality that most corrupt acts by public officers are shrouded in secrecy. Section 40 (b) of the LGC precludes condonation since in the first place. as previously stated. However. Section 66 (b) of the LGC prohibits the enforcement of the penalty of suspension beyond the unexpired portion of the elective local official’s term. are assumed to have done so with knowledge of his life and character. If condonation of an elective official’s administrative liability would perhaps be allowed in this jurisdiction. or that the disqualification to hold the office does not extend beyond the term in which the official’s delinquency occurred. In similar regard. In political law. Misconduct committed by an elective public official is easily covered up. an elective local official who is meted with the penalty of removal could not be re-elected to an elective local position due to a direct disqualification from running for such post. Thus. it cannot be said that the electorate’s will has been abdicated. if he had been guilty of any. then the same should have been provided by law under our governing legal mechanisms. condonation presupposes that the condoner has actual knowledge of what is to be condoned. there could be no condonation of an act that is unknown. Besides.President in light of Section 19. none of these cases can be used as basis for the continued adoption of the condonation doctrine under our existing laws. Section 52 (a) of the RRACCS imposes penalty of perpetual disqualification from holding public office as an accessory to the penalty of dismissal from service. and concealed from the public. Neither is there any legal basis to say that every democratic and republican state has an inherent regime of condonation. and likewise allows said official to still run for re-election. and that they disregarded or forgave his faults or misconduct. May it be at the time of Pascual or at present. owing to either their variance or inapplicability. 920. Therefore. Also. that an officer cannot be removed by a misconduct committed during a previous term. As can be seen from this discourse. Orbos (279 Phil. this Court simply finds no legal authority to sustain the condonation doctrine in this jurisdiction. Hence. whether in a constitutional or statutory provision. no legal basis to conclude that election automatically implies condonation. it was a doctrine from one class 81 . and is almost always unknown to the electorate when they cast their votes. X x x. Equally infirm is Pascual’s proposition that the electorate. there is. again. Thus. no legal provision actually supports the theory that the liability is condoned. To compare. it should be clarified that there is no truth in Pascual’s postulation that the courts would be depriving the electorate of their right to elect their officers if condonation were not to be sanctioned. by no means has it been shown that such a law. at all events. inferring from this manifest absence. 937 [1991]) to apply to administrative offenses x x x. some of the cases adopted in Pascual were decided by US State jurisdictions wherein the doctrine of condonation of administrative liability was supported by either a constitutional or statutory provision stating. X x x. At a conceptual level. Article VII of the 1987 Constitution which was interpreted in Llamas v. exists. it cannot be inferred from Section 60 of the LGC that the grounds for discipline enumerated therein cannot anymore be invoked against an elective local official to hold him administratively liable once he is re-elected to office. and implemented under COMELEC Resolution Nos. which were all relied upon by the CA. (Section 1. 1987 Constitution) The Right of Suffrage Kabataan Party-list. 2015. petitioners’ claim that biometrics validation imposed under RA 10367.of US rulings way back in 1959 and thus out of touch from – and now rendered obsolete by – the current legal regime. recognized as “good law” prior to its abandonment. and all persons are bound to follow its interpretation. this Court. En Banc [Perlas-Bernabe]) ELECTION LAWS Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law. G. En Banc (Perlas-Bernabe) Held: “With these considerations in mind. and affirmed in the cases following the same. No literacy. November 10. shall form part of the Philippine legal system. To reiterate. 2015. the lessons of history teach us that institutions can greatly benefit from hindsight and rectify its ensuing course. 221318. Article V. Unto this Court devolves the sole authority to interpret what the Constitution means. and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months preceding the election. It should. and Governor Garcia. the people’s reliance thereupon should be respected. while the future may ultimately uncover a doctrine’s error.R. Thus. Jr. this requirement is not a “qualification” to the exercise of the right of suffrage. be clarified that this Court’s abandonment of the condonation doctrine should be prospective in application for the reason that judicial decisions applying or interpreting the laws or the Constitution. while it is truly perplexing to think that a doctrine which is barren of legal anchorage was able to endure in our jurisprudence for a considerable length of time. as in this case.” Applying the Strict Scrutiny Test to RA 10367 82 . it should be. 10013. until reversed. of which the State has the right to reasonably regulate. Court of Appeals [Sixth Division]. Commission on Elections. (Conchita Carpio Morales v. but a mere aspect of the registration procedure. 217126-27. must perforce fail. who are at least eighteen years of age. Mayor Garcia. or other substantive requirement shall be imposed on the exercise of suffrage. X x x Indeed. et al. GR Nos. X x x Hence. X x x “Thus. December 16. 9863. takes up the cudgels and now abandons the condonation doctrine. Consequently. property or other substantive requirement as contemplated by the Framers of the Constitution – that is. it is high time for this Court to abandon the condonation doctrine that originated from Pascual. however. one which propagates a socio-economic standard which is bereft of any rational basis to a person’s ability to intelligently cast his vote and to further the public good – the same cannot be struck down as unconstitutional. unless it is shown that a registration requirement rises to the level of a literacy. No.. such as Aguinaldo. v. as a general rule. under a new membership. property. Salalima. It was institutionalized conformant to the limitations of the 1987 Constitution and is a mere complement to the Existing Voter’s Registration Act of 1996. 9721. In consequence. While registrants may be inconvenienced by waiting in long lines or by not being accommodated on certain days due to heavy volume of work. overseas Filipinos. as well as dead and multiple registrants. gender. No. Under said Act. with respect to overseas Filipinos. permanent and updated list of voters. It was precisely designed to facilitate the conduct of orderly. governmental interest and on the absence of less restrictive means for achieving that interest. it is not poised with compelling reason for state regulation and hence.A. the focus is on the presence of compelling. X x x the objective of the law was to cleanse the national voter registry so as to eliminate electoral fraud and ensure that the results of the elections were truly reflective of the genuine will of the people. and Party-list Representative. Section 6 of Resolution 9721 sets the procedure for biometrics validation x x x. It has tried to account for the exigencies x x x. Senators. and was demonstrably the least restrictive means in promoting that interest. Article V on Suffrage of the Constitution. “In terms of judicial review of statutes or ordinances. Strict scrutiny is used today to test the validity of laws dealing with the regulation of speech. “That being said. The foregoing consideration is unquestionably a compelling state interest. considering that. “Also. judicial access. the COMELEC has not turned a blind eye to these realities. Vice- President. in effect. the regulation passes the strict scrutiny test. “Petitioners assert that biometrics validation gravely violates the Constitution. and credible elections by containing – if not eliminating. and the burden befalls upon the State to prove the same. X x x the United States Supreme Court has expanded the scope of scrutiny to protect fundamental rights such as suffrage. The re-registration process is amply justified by the fact that the government is adopting a novel technology like biometrics in order to address the bane of electoral fraud that has enduringly plagued the electoral exercises in this country. “In this case. COMELEC There is now an exception to the residence qualification of a voter under Section 1. the assailed regulation on the right to suffrage was sufficiently justified as it was indeed narrowly tailored to achieve the compelling state interest of establishing a clean. complete. There is a clear intent on the part of the framers of our Constitution to enfranchise as many of our overseas countrymen in recognition of 83 . permanent residents of a foreign country under R. honest. the perennial problem of having flying voters. “Applying strict scrutiny. or a first-time registration for new registrants. a manner of updating one’s registration for those already registered under RA 8189. applying the strict scrutiny test. it was shown that the regulation is the least restrictive means for achieving the above-said interest. or race as well as other fundamental rights as expansion from its earlier applications to equal protection. these are typical burdens of voting that are remedied by bureaucratic improvements to be implemented by the COMELEC as an administrative institution. an unreasonable deprivation of the right to suffrage. X x x “Contrary to petitioners’ assertion. rather than substantial. By and large. It is. Makalintal v. permanent residents in a foreign country. 9189 (The Absentee Voters Act of 2003). respondents have shown that the biometrics validation requirement under RA 10367 advances a compelling state interest. are now allowed to register and vote before our embassies and consulates abroad for President. strict scrutiny refers to the standard for determining the quality and the amount of governmental interest brought to justify the regulation of fundamental freedoms. and that is. and interstate travel. 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. he cannot be substituted under Section 77 of the Code. the candidates among whom they are to make the choice.R. July 28. (Miranda v. Xxx The often-quoted phrase in Topacio v. 1999) May a disqualified candidate and whose certificate of candidacy was denied due course and/or canceled by the COMELEC be validly substituted? Even on the most basic and fundamental principles. Effect of Filing Certificate of Candidacy What is the purpose of the law in requiring the filing of certificate of candidacy and in fixing the time limit therefor? 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.” This case is not even the ratio decidendi. if the disqualified candidate did not have a valid and seasonably filed certificate of candidacy. a disqualified candidate may only be substituted if he had a valid certificate of candidacy in the first place because. for how can a person take the place of somebody who does not exist or who never was. Abaya. (Miranda v. Paredes is that “the wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots. it is a mere obiter dictum. 136351.” Xxx 84 . The Court was comparing “the effect of a decision that a candidate is not entitled to the office because of fraud or irregularities in the elections x x x [with] that produced by declaring a person ineligible to hold such an office. there might be as many persons voted for as there are voters. If a person was not a candidate. 1999. No. All told. he is and was not a candidate at all.R. 136351. July 28. Abaya. and (b) to avoid confusion and inconvenience in the tabulation of the votes cast. G. at least sixty days before the regular election. For if the law did not confine the choice or election by the voters to the duly registered candidates. it is readily understood that the concept of a substitute presupposes the existence of the person to be substituted. G. 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.their tremendous contributions to the national economy in terms of dollar remittances. Paredes which is the jurisprudential spring of the principle that a second-placer cannot be proclaimed as the winner in an election contest. en Banc [Melo]) Effect of Disqualification Case Abandoning the Doctrine of the Rejection of the Second-Placer Resolving the third issue necessitates revisiting Topacio v. This doctrine must be re-examined and its soundness once again put to the test to address the ever-recurring issue that a second placer who loses to an ineligible candidate cannot be proclaimed as the winner in the elections. It is but fair that their voices should be heard on who should be our national leaders. No. notwithstanding the outcome of the elections. The votes cast in favor of an ineligible candidate do not constitute the sole and total expression of the sovereign voice. 85 . COMELEC. he could not even have been a candidate in the first place. G. his ineligibility as a candidate remains unchanged. By express legal mandate. Even when the votes for the ineligible candidate are disregarded. COMELEC and Jalosjos v. Xxx The electorate’s awareness of the candidate’s disqualifications is not a prerequisite for the disqualification to attach to the candidate. The votes cast in favor of eligible and legitimate candidates form part of that voice and must also be respected. We have ruled in the recent cases of Aratea v. COMELEC that a void COC cannot produce any legal effect. (Casan Macode Maquiling v. and even more so. The very existence of a disqualifying circumstance makes the candidate ineligible. Xxx What prevents the transfer of the wreath of victory from the ineligible candidate to another candidate? When the issue being decided upon by the Court is the eligibility of the one receiving a plurality of the legally cast ballots and ineligibility is thereafter established. The second-placer in the vote count is actually the first-placer among the qualified candidates. their victory is voided and the laurel is awarded to the next in rank who does not possess any of the disqualifications nor lacks any of the qualifications set in the rules to be eligible as candidates. the will of the electorate is still respected.R. April 16. what stops the Court from adjudging another eligible candidate who received the next highest number of votes as the winner and bestowing upon him that “wreath?” An ineligible candidate who receives the highest number of votes is a wrongful winner. the votes cast in favor of the ineligible candidate are not considered at all in determining the winner of an election. It was a mere pronouncement of the Court comparing one process with another and explaining the effects thereof. When there are participants who turn out to be ineligible. The number of ballots cast in his favor cannot cure the defect of failure to qualify with the substantive legal requirements of eligibility to run for public office. Consequently. it is even illogical. CJ]) With Arnado’s disqualification. the phrase relied upon by a host of decisions does not even have a legal basis to stand on. As in any contest. As an independent statement. On closer scrutiny.. En Banc [Sereno. Ineligibility does not only pertain to his qualifications as a candidate but necessarily affects his right to hold public office. but by virtue of the lack of material time or any other intervening circumstances. Maquiling then becomes the winner in the election as he obtained the highest number of votes from among the qualified candidates. Knowledge by the electorate of a candidate’s disqualification is not necessary before a qualified candidate who placed second to a disqualified one can be proclaimed as the winner. 2013. his ineligibility might not have been passed upon prior to election date. No. et al. Thus. he may have had the opportunity to hold himself out to the electorate as a legitimate and duly qualified candidate. elections are governed by rules that determine the qualifications and disqualifications of those who are allowed to participate as players. 195649. However. The disqualifying circumstance affecting Arnado is his citizenship. It could not have produced any other legal effect x x x. Arnado being not a candidate. 2013. et al. economic and social structures. the rule on succession under the Local Government Code will not apply. Article X. municipalities. Xxx The disqualifying circumstance surrounding Arnado’s candidacy involves his citizenship. from holding the office. reaches back to the filing of the certificate of candidacy. his certificate of candidacy is thus rendered void from the beginning.R. En Banc [Sereno. This leaves Maquiling as the qualified candidate who obtained the highest number of votes therefore. 1987 Constitution) The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of 86 . although made long after the elections. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided. cities. cities. municipalities. the votes cast in his favor should not have been counted. It does not involve the commission of election offenses as provided for in the first sentence of Section 68 of the Omnibus Election Code. 195649. (Section 15. 1987 Constitution) Autonomous Regions There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces. April 16. The subsequent disqualifications based on a substantive ground that existed prior to the filing of the certificate of candidacy voids not only the COC but the proclamation.. CJ]) THE LAW OF PUBLIC CORPORATIONS Local Governments are the Territorial and Political Subdivisions of the Republic of the Philippines The territorial and political subdivisions of the Republic of the Philippines are the provinces. With Arnado being barred from even becoming a candidate. To hold that such proclamation is valid is to negate the prohibitory character of the disqualification which Arnado possessed even prior to the filing of the certificate of candidacy. Arnado is declared to be not a candidate at all in the May 2010 elections. That the disqualified candidate has already been proclaimed and has assumed office is of no moment. or if has already been elected. the effect of which is to disqualify the individual from continuing as a candidate. and geographical areas sharing common and distinctive historical and cultural heritage. Article X. (Section 1. The affirmation of Arnado’s disqualification. No. He was a dual citizen disqualified to run for public office based on Section 40(d) of the Local Government Code. and barangays. and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. X x x Arnado was both a Filipino and an American citizen when he filed his certificate of candidacy. COMELEC. G. (Casan Macode Maquiling v. Therefore.R. The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose. or is separated by a chartered city or cities which do not contribute to the income of the province. Navarro. The organic acts shall likewise provide for special courts with personal. family and property law jurisdiction consistent with the provisions of this Constitution and national laws. The Government of the Republic of the Philippines Peace Panel. et al. or is separated by a local government unit independent of the others. and sufficient to provide for such basic services and facilities to meet the requirements of its populace. and (2) the land area must be sufficient to provide for such basic services and facilities to meet the requirements of its populace. or barangay may be created. provides that the land area must be contiguous. to wit. abolished. paragraph (b) of Section 461 provides two instances of exemption from the requirement of territorial contiguity. En Banc (Peralta) Section 7. unless it comprises two (2) or more islands. cities.000 square kilometers are distinct and separate requirements for land area under paragraph (a) (i) of Section 461 and Section 7 (c) of LGC. v. 180050. No. 183591. 1987 Constitution) The Province of North Cotabato v. A sufficient land area in the creation of a province is at least 2. No. G. Nowhere in paragraph (b) is it expressly stated or may it be implied that when a province is composed of two or more islands. 1987 Constitution) Rodolfo G. The organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly. However. representatives appointed by the President from a list of nominees from multisectoral bodies. merged. or is separated by a chartered city or cities which do not contribute to the income of the province. provided that only provinces.. G. Art. (Section 10. city. except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. (Sec. Article X. as provided by Section 461 of LGC. or its boundary substantially altered. October 14. “the territory need not be contiguous if it comprises two (2) or more islands. divided. or when the territory of a province is separated by a 87 . Chapter 2 paragraph (c) of the Local Government Code (LGC). Executive Secretary Eduardo Ermita. et al. 2008. Hence x x x the requirement of a contiguous territory and the requirement of a land area of at least 2.R. both of which shall be elective and representative of the constituent political units. municipality. there are two requirements for land area: (1) the land area must be contiguous. 18. It clearly states that the requirement of territorial contiguity may be dispensed with in the case of a province comprising two or more islands. properly identified by metes and bounds with technical descriptions. 568 SCRA 402.” The exemption above pertains only to the requirement of territorial contiguity. and geographical areas voting favorably in such plebiscite shall be included in the autonomous region. 12 May 2010. X.000 square kilometers. En Banc (Carpio- Morales) Creation of Local Governments No province. good faith. X x x. The formalities in enacting an ordinance are laid down in Section 53 and Section 54 of The Local Government Code. prosperity.e. as well as with the requirements of fairness and reason.000 square kilometers or the requirement in paragraph (a) (i) of Section 461 of LGC. but only for application. whether the ordinance is enacted within the corporate powers of the local government unit. practical utility and other similar reasons so as to relax non-compliance therewith. lawful businesses and occupations in order to promote the general welfare.chartered city or cities. and its consistency with public policy). the acts of the local government unit designed to ensure the health and lives of its constituents and to promote a balanced and healthful ecology are well within the corporate powers vested in the 88 . These provisions require the ordinance to be passed by the majority of the members of the sanggunian concerned. The police power. the court may not introduce exceptions or conditions where none is provided from considerations of convenience.e. namely: the general legislative power and the police power proper. Such legislative powers spring from the delegation thereof by Congress through either the Local Government Code or a special law. the local government unit takes its cue from Section 15 and Section 16. an ordinance must pass a two-pronged test: the formal (i. nor construe its provisions by taking into account questions of expediency.. morals. to enable the local legislative body to enact ordnances and make regulations. or the Sangguniang Panlungsod in the case of Davao City. and presented to the mayor for approval. there is no room for interpretation.. on the other hand. Section 16 comprehends two branches of delegated powers. The corporate powers of the local government unit confer the basic authority to enact legislation that may interfere with personal liberty. and for the protection of their property. or for any laudable purpose. comfort. Section 458 of the Local Government Code explicitly vests the local government unit with the authority to enact ordinances aimed at promoting the general welfare x x x. involving inherent merit. and convenience of the local government unit and its constituents. peace. like the conformity of the ordinance with the limitations under the Constitution and the statutes. The General Welfare Clause in Section 16 of the Local Government Code embodies the legislative grant that enables the local government unit to effectively accomplish and carry out the declared objects of its creation. Where the law speaks in clear and categorical language. property. and the power must be exercised to effectuate and discharge the powers and duties legally conferred to the local legislative body. neither may it engraft into the law qualifications not contemplated. public welfare. Following the provisions of the Local Government Code and the Constitution. such province need not comply with the land area requirement of at least 2. Where the law is free from ambiguity. authorizes the local government unit to enact ordinances necessary and proper for the health and safety. and to promote and maintain local autonomy. This power is limited in that the enacted ordinances must not be repugnant to law. and whether it is passed in accordance with the procedure prescribed by law). Powers of Local Governments Corporate Powers of Local Governments To be considered as a valid police power. Article II of the 1987 Constitution. In terms of the right of the citizens to health and to a balanced and healthful ecology. General legislative power refers to the power delegated by Congress to the local legislative body. and the substantive (i. good order. X x x. (Wilfredo Mosqueda. No. the FPA was responsible for ensuring the compatibility between the usage and the application of pesticides in agricultural activities and the demands for human health and environmental safety. 1144. the City of Davao performed an ultra vires act. 1144 the following powers and functions with respect to pesticides and other agricultural chemicals x x x. 2016. 2016. The FPA was established in recognition of the need for a technically oriented government entity that will protect the public from the risks inherent in the use of pesticides. (3) it must not be partial or discriminatory. and its every act should always conform to and reflect the will of its principal x x x. it was given under Section 6 of Presidential Decree No. its ordinance cannot run against or contravene existing laws. En Banc [Bersamin]) Requisites of a Valid Ordinance A valid ordinance must not only be enacted within the corporate powers of the local government and passed according to the procedure prescribed by law. et al. et al. En Banc (Bersamin) Held: The function of pesticides control. 189185. and (6) it must not be unreasonable. 0309-07 proposes to prohibit an activity already covered by the jurisdiction of the FPA. In no instance can the local government unit rise above its source of authority.. G. regulation and development is within the jurisdiction of the FPA (Fertilizer and Pesticide Authority) under Presidential Decree No. X x x. X x x In enacting Ordinance No. v. This responsibility includes not only the identification of safe and unsafe pesticides. No. For sure. 2016. v. On the other hand. not oppressive. et al. In order to declare it as a valid piece of local legislation. precisely because its authority is only by virtue of the valid delegation from Congress.R. 189185. August 16.R. As such. (5) it must be general and consistent with public policy. X xx Moreover.. which has issued its own regulations under its Memorandum Circular x x x. (Wilfredo Mosqueda. 0309-07 of Davao City Prohibiting Aerial Spraying in That City Declared Ultra Vires Wilfredo Mosqueda. En Banc [Bersamin]) Ordinance No. 0309-07 without the inherent and explicit authority to do so. every local government unit only derives its legislative authority from Congress. et al.. 89 .local government unit. G. but also the prescription of the safe modes of application in keeping with the standard of good agricultural practices. Evidently. Pilipino Banana Growers & Exporters Association. As a local government unit. (2) it must be fair. v. Pilipino Banana Growers & Exporters Association. August 16. G. the City of Davao could act only as an agent of Congress. the enumerated devolved functions to the local government units do not include the regulation and control of pesticides and other agricultural chemicals.R. namely: (1) it must not contravene the Constitution or any statute. 189185. To perform its mandate. Pilipino Banana Growers & Exporters Association. it must also comply with the following substantive requirements. No. et al. Ordinance No. August 16. et al. (4) it must not prohibit but may regulate trade. (Section 8. Hence. the City of Davao exceeded its delegated authority to enact Ordinance No.R. v. Sept. the property rights of individuals may be subjected to restraints and burdens in order to fulfill the objectives of the Government. 0309-07 must be struck down also for being an ultra vires act on the part of the Sangguning Bayan of Davao City. 0309-07 failed to pass this test as it contravenes the specific regulatory policy on aerial spraying in banana plantations on a nationwide scale of the National Government. 2016. Ordinance No. This means that in exercising police power the local government unit must not arbitrarily. No. 0309-07. G. 1998. et al. 189185. (Borja. No.R. Consequently. the second. COMELEC and Capco. G. the ordnances must survive a due process challenge. Substantive due process requires that a valid ordinance must have a sufficient justification for the Government’s action. En Banc [Bersamin]) Vacancies and Succession in the Local Governments Farinas v. The first requirement refers to the Equal Protection Clause of the Constitution. Jr. as distinguished from those of a particular class. Article X.. et al. and (2) the means employed are reasonably necessary for the attainment of the object sought to be accomplished and not unduly oppressive. shall be three years and no such official shall serve for more than three consecutive terms. 133495. except barangay officials. Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. to wit: (1) the interests of the public generally. to the Due Process Clause of the Constitution. not prohibitive. August 16. require the interference of the State. Jr. whimsically or despotically enact the ordinance regardless of its salutary purpose. v. Ordinance No. and it employs means that are reasonably necessary to achieve that purpose without unduly oppressing the individuals regulated. which shall be determined by law. it is not enough that an individual has served three consecutive terms in an elective local office. ordinances that conform with the policy directions of the National Government. En Banc [Mendoza]) 90 .. Pilipino Banana Growers & Exporters Association. We must emphasize that our ruling herein does not seek to deprive the LGUs their right to regulate activities within their jurisdiction. They are empowered under Section 16 of the Local Government Code to promote the general welfare of the people through regulatory. So long as the ordinance realistically serves a legitimate public purpose. A local government unit is considered to have properly exercised its police power only if it satisfies the following requisites. 3. Xxx Devoid of the specific delegation to its legislative body. he must also have been elected to the same position for the same number of times before the disqualification can apply. (Wilfredo Mosqueda. Barba Limitation on Term of Office of Local Elective Officials The term of office of elective local officials. 1987 Constitution) The term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. through the FPA. Requisites for a Proper Exercise by Local Governments of Police Power In the State’s exercise of police power. 295 SCRA 157. Jr. Absent one or both of these two conditions. however short. No. COMELEC and Capco. with the exception of barangay officials. the office holder. COMELEC and Capco. The two conditions for the application of the disqualification provision are: (1) that the local official concerned has been elected three consecutive times for the same position. 1998. is not to be considered as one full term for purposes of applying the disqualification under Section 8. and (2) that he has fully served three consecutive terms. Is the preventive suspension of an elected local government official an interruption of his term of office for purposes of the three-term limit rule? The “interruption” of a term exempting an elective official from the three-term limit rule is one that involves no less than the involuntary loss of title to office. 133495. To put it differently. To consider. G. is simply barred from exercising the functions of his office for a reason provided by law. Sec. The other policy is that of enhancing the freedom of choice of the people. X fixes an elective official’s term of office and limits his stay in office to three consecutive terms as an inflexible rule that is stressed no less. loss of office by operation of law. should not be considered an effective interruption of a term because it does not involve the loss of title to office or at least an effective break from holding office. Any subsequent reelection. 295 SCRA 157. (Borja. not in the context of interrupting the full continuity of the exercise 91 . with the exception of barangay officials. 295 SCRA 157. even if involuntary. COMELEC (December 17. The elective official must have involuntarily left his office for a length of time.. 2002) Service of the recall term. the term “failure to serve” cannot be used once the right to office is lost. 3. G. and cannot be equated with the failure to render service. from serving more than three consecutive terms? To prevent the establishment of political dynasties is not the only policy embodied in the constitutional provision in question (barring elective local officials. for an effective interruption to occur. being involuntary. COMELEC (November 12.R. 3. v. is an effective interruption of service within a term. 2002) What is prohibited by the Constitution is after serving three (3) consecutive terms to the same position a local elective official shall run for immediate reelection. Jr. since it is less than three (3) years. On the other hand. Mendoza v. An interruption occurs when the term is broken because the office holder lost the right to hold on to his office. like a recall election. Sept. Article X of the Constitution. without the right to hold office or serve. is no longer covered by the provision. Of course. 8. 1998. based on this standard. Art. No. the disqualification may not yet apply. Jr. Jr. En Banc [Mendoza]) Socrates v.. temporary inability or disqualification to exercise the functions of an elective post. v. while retaining title. The latter occurs during an office holder’s term when he retains title to the office but cannot exercise his functions for reasons established by law. The provision should be read in the context of interruption of term. therefore. for as long as it is not an immediate reelection after serving the three (3) consecutive terms. by citing involuntary renunciation as an example of a circumvention. Thus. from serving more than three consecutive terms). (Borja. Sept. 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. En Banc [Mendoza]) What are the policies embodied in the constitutional provision barring elective local officials.R. 133495. then no service can be rendered so that none is really lost. . v. 184836. a treaty that violates a jus cogens norm will have to be invalidated. in contemporary international law. Between an erga omnes obligation and an obligation of a State towards another State pursuant to a treaty. En Banc [Del Castillo]). April 28. Romulo. as also from the principles and rules 92 . or that the duty to prosecute perpetrators of international crimes is an erga omnes obligation or has attained the status of jus cogens. However. petitioners have not deigned to show that the crimes committed by the Japanese army violated jus cogens prohibitions at the time the Treaty of Peace was signed. in Vinuya. In all cases of preventive suspension. the SC clarified that there is yet no consensus on the proper criteria for identifying peremptory norms.R. (G. for example. The Honorable Executive Secretary Alberto G. 2009.R. 2004) – An Act Abolishing the Preparatory Recall Assembly as a Mode of Initiating Recall Claudio v. Such obligations derive. The term erga omnes (Latin: in relation to everyone) in international law has been used as a legal term describing obligations owed by States towards the community of states as a whole. G. No. loss of office is a consequence that only results upon an eventual finding of guilt or liability.A. 23. Dec. from the outlawing of acts of aggression. 162230. Even if we sidestep the question of whether jus cogens norms existed in 1951. Erga omnes literally means “in relation to the whole. En Banc [Brion]) Recall R. 2010. COMELEC PUBLIC INTERNATIONAL LAW Jus Cogens Norms and Erga Omnes Obligations Just cogens literally means “compelling law. with preventive suspension being only one of them. Under the Vienna Convention on the Law of Treaties. an erga omnes is superior. The “voluntary renunciation” it speaks of refers only to the elective official’s voluntary relinquishment of office and loss of title to his office.of the powers of the elective position. No. It held: Even the invocation of jus cogens norms and erga omnes obligations will not alter this analysis. but does not vacate and lose title to his office. et. (Aldovino. It does not speak of the temporary “cessation of the exercise of power or authority” that may occur for various reasons. et. v. The concept was recognized by the ICJ in Barcelona Traction x x x. 9244 (February 18.” As defined. Jr.” An erga omnes refers to an obligation of a State towards the international community of States as a whole. the suspended official is barred from performing the functions of his office and does not receive salary in the meanwhile. it means a peremptory (mandatory) norm of general international law which is recognized and accepted by the international community of States as a norm that does not permit of any derogation and which can be replaced or modified only by a subsequent norm of the same character. al. No. and of genocide. COMELEC. al. ” Thus. while the existence of jus cogens in international law is undisputed. its full potential remains to be realized in practice. i. the reality is neither so clear nor so bright. i. The Government of the Republic of the Philippines Peace Panel. The term is closely connected with the international law concept of jus cogens. in case of people under colonial rule.. no consensus exists on its substance. may be invoked only in extreme cases. the ILC was unable to reach a consensus on the proper criteria for identifying peremptory norms. 183591. the ILC concluded ruefully in 1963 that “there is not as yet any generally accepted criterion by which to identify a general rule of international law as having the character of jus cogens. a people’s pursuit of its own political. as is so often the case. the term “jus cogens” (literally. G. concerning the basic rights of the human person. it has now been elevated into the status of a generally accepted of international law. the ILC indicated that “the prudent course seems to be to x x x leave the full content of this rule to be worked out in State practice and in the jurisprudence of international tribunals. Some of the corresponding rights of protection have entered into the body of general international law … others are conferred by international instruments of a universal or quasi-universal character. In international law. do not admit derogation. this right to self-determination merely refers to right to internal self-determination.’ has since become one of the rallying cries of those sharing a belief in the emergence of a value-based international public order. economic. The Latin phrase.R. but peremptory norms began to attract greater scholarly attention with the publication of Alfred von Verdross’s influential 1937 article. Jus cogens norms are considered peremptory in the sense that they are mandatory.e. including protection from slavery and racial discrimination. “compelling law”) refers to norms that command peremptory authority. However. which consists of the assertion of a right to unilateral secession. Early strains of the jus cogens doctrine have existed since the 1700s.. Whatever the relevance of obligations erga omnes as a legal concept. No. in fact. The State The Concept of an Association or Associated State 93 . as normally understood in international law.. Forbidden Treaties in International Law. En Banc (Carpio- Morales) The right to self-determination of peoples has gone beyond mere treaty or convention. The recognition of jus cogens gained even more force in the 1050s and 1960s with the ILC’s preparation of the Vienna Convention on the Law of Treaties (VCLT). beyond a tiny core of principles and rules.” In a commentary accompanying the draft convention. October 14. or in case of people under foreign domination or exploitation outside of a colonial context. superseding conflicting treaties and custom. ` After an extended debate over these and other theories of jus cogens. The Doctrine of Incorporation The Province of North Cotabato v. social and cultural development within the framework of an existing State. The right to external self-determination. Though there was a consensus that certain international norms had attained the status of jus cogens. However.e. ‘erga omnes. and can be modified only by general international norms of equivalent authority. 2008. 568 SCRA 402. Indeed. In the basic model. city. 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. 568 SCRA 402. St. live with coequals. does not contemplate any state in this jurisdiction other than the Philippine State. the country is bound by generally accepted principles of international law. (The Province of North Cotabato v. St. nations may surrender some aspects of their state power in exchange for greater benefits granted by or derived from a convention or pact. treaties really limit or restrict the absoluteness of sovereignty. while maintaining its international status as a state.R. 2008. expressly or impliedly. The Government of the Republic of the Philippines Peace Panel. the “associated state” arrangement has usually been used as a transitional device of former colonies on their way to full independence. or municipality. Vincent and Grenada. Free associations represent a middle ground between integration and independence. 2008. as a member of the family of nations. The Compact of Free Association is a treaty which is subordinate to the associated nation’s national constitution. By their voluntary act. G. An association is formed when two states of unequal power voluntarily establish durable links. 183591. The Constitution. By the doctrine of incorporation.R. It has been said that. October 14. In US constitutional and international practice. G. En Banc [Carpio-Morales]) The Concept of “Association” is not recognized under the 1987 Philippine Constitution The 1987 Constitution provides that no province. the associate. free association is understood as an international association between sovereigns. the principal. Dominica. and each party may terminate the association consistent with the right of independence. not even the Autonomous Region for Muslim Mindanao (ARMM) is recognized under our laws as having an “associative” relationship with the national government. one state. like individuals. Lucia. what are its restrictions and limitations? While sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level. Examples of states which maintain an associated state relationship with the United States are the newly-formed states of Micronesia and the Marshall Islands in the Pacific. No. After all. Kitts-Nevis-Anguilla. 94 . much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence. En Banc [Carpio-Morales]) Sovereignty as an Element of a State Is sovereignty really absolute and all-encompassing? If not. with the admission of the US-associated states to the UN in 1990. By their inherent nature. it is however subject to restrictions and limitations voluntarily agreed to by the Philippines. In international practice. All have since become independent states. October 14. delegates certain responsibilities to the other. No. which are considered to be automatically part of our own laws. the UN recognized that the American model of free association is actually based on an underlying status of independence. (The Province of North Cotabato v. It also implies the recognition of the associated entity as a state. 568 SCRA 402. 183591. and in pursuit of mutually covenanted objectives and benefits. states. however. St. The Government of the Republic of the Philippines Peace Panel. the concept implies powers that go beyond anything ever granted by the Constitution to any local or regional government. One of the oldest and most fundamental rules in international law is pacta sunt servanda – international agreements must be performed in good faith. Examples of states that have passed through the status of associated states as a transitional phase are Antigua. 323 SCRA 692 (2000). 272 SCRA 18. membership of a particular social group or political opinion. et al. the formation of alliances. En Banc (Carpio) Diplomatic and Consular Immunities and Privileges Liang v. 289) The Law on Treaties Rene A. v. the laying down of rules governing conduct in peace and the establishment of international organizations. (Magallona..they also commonly agree to limit the exercise of their otherwise absolute rights. membership of a particular social group or political opinion. Ochoa. Saguisag. 187167. 287) The Non-Refoulement Principle The right of a refugee not to be expelled or returned “in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race. et al.R. Art. May 2. v. 2011. Magallona. the sale or cession of territory. Fundamentals of Public International Law. or owing to such fear. is outside the country of his nationality and is unable or owing to such fear. People.. et al. Executive Secretary Paquito N. 655 SCRA 476. owing to a well-founded fear of being persecuted for reasons of race. p. G. (Tanada v. it is duty-bound to provide protection to that alien so that once the State is 95 . 1 A[2]) (Magallona. nationality. the settling of claims.V. The sovereignty of a state therefore cannot in fact and in reality be considered absolute.. August 16. However.R. No. religion. G. p. the lease of naval bases. 2005 Ed. Angara. is unwilling to return to it. 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. En Banc (Sereno. No. or who. the moment it admits an alien. (Convention Relating to the Status of Refugees. is unwilling to avail himself of the protection of that country.” The prohibition of such expulsion or return becomes an obligation of States parties to the Convention Relating to the Status of Refugees. 2005 Ed. treaties have been used to record agreements between States concerning such widely diverse matters as. Hon. Thus. religion. 355 SCRA 125 (2001) (Focus on Justice Puno’s Concurring Opinion) Extradition and Asylum Nationality and Statelessness Refugees A refugee is a person who. the regulation of commercial relations. 2016. Eduardo Ermita. January 12. nationality. CJ) The Doctrine of State Responsibility to Aliens An important premise for this doctrine to be validly invoked is that a State is under no legal obligation in international law to admit an alien in its territory. is unable or. Fundamentals of Public International Law. the regulation of conduct of hostilities. not having a nationality and being outside the country of his former habitual residence. for example. Jr. 1997 [Panganiban]) Territory of States Professor Merlin M. the termination of war. 212426.. Exhaustion of local remedies. No unreasonable delay in filing the claim. 2. this could lead to liability on the part of the State. Attributable to the State. Requisites for this doctrine to apply: 1. No improper conduct on the part of the injured alien. The 1977 Additional Protocols. four treaties signed by almost every nation in the world.. and for civilians. These are: (1) Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12. or indirectly. Conditions for the enforcement of claims under this doctrine: 1. An act or omission in violation of international law. 4. or capture. 3. a state may engage in armed attack against another state. further expand those rights. 1949 (Fourth Geneva Convention). 3. In violation of the prohibition against the threat or use of force under international law. Sick and Shipwrecked Members of Armed Forces at Sea of August 12. (5) Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977. resulting in armed conflict between them. Fundamentals of Public International Law. and (6) Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8 June 1977. (4) Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12. 291) International Humanitarian Law (IHL) encompasses both humanitarian principles and international treaties that seek to save lives and alleviate suffering of combatants and noncombatants during armed conflict. IHL is not concerned with the lawfulness or unlawfulness of armed conflict.remiss in the performance of this duty and the alien dies. to a national of the third State. p. which supplement the Geneva Conventions. and 5. Its principal legal documents are the Geneva Conventions of 1949. The nationality of the claim. (3) Geneva Convention Relative to the Treatment of Prisoners of War of August 12. 1949 (First Geneva Convention). 1949 (Third Geneva convention). illness. Causing damage or injury to a third State directly. (Magallona. 1949 (Second Geneva Convention). The Conventions define fundamental rights for combatants removed from the fighting due to injury. (2) Geneva Convention for the Amelioration of the Condition of Wounded. International Humanitarian Law (IHL) International humanitarian law is the branch of public international law which governs armed conflicts to the end that the use of violence is limited and that human suffering is mitigated or reduced by regulating or limiting the means of military operations and by protecting persons who do not or no longer participate in the hostilities. 2005 ed. 2. The application of IHL in their conflict pertains solely to the fact of armed conflict as the use of force 96 . or suffers injury or loss. No waiver. persons directly engaged in armed conflict must. The Statute was opened for signature by all States in Rome on July 17. 293) The Principle of Distinction An important principle to be observed under IHL is the Principle of Distinction. Armed conflict. crimes against humanity. 2005. p. Jr.” This conflict involving the right of peoples to self-determination is an international armed conflict. Rome Statute). Hence. there will be victims of the conflict who must come under the protection of IHL. war crimes and the crime of aggression as defined in the 97 . War of National Liberation War of National Liberation An armed conflict may be of such nature in which “peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self- determination. Rome Statute). In either case. (Magallona. Categories of Armed Conflicts 1. acceptance or approval of the signatory states (Article 25. in which IHL properly applies. 2005 ed. at all times. July 6. crimes against humanity. between civilian objects and military objectives. 2000 x x x. International Armed Conflicts 2. and there may be methods of warfare which may come under the prohibition of IHL. Fundamentals of Public International Law.” (Article I. war crimes and the crime of aggression as defined in the Statute (Article 5. Internal or Non-international Armed Conflicts 3. Under these provisions. Rome Statute) Its jurisdiction covers the crime of genocide. the issue of lawfulness or unlawfulness of the armed conflict is of no legal importance from the standpoint of IHL. Its provisions.. so that only combatants and military objectives may be subject of attack. Under this principle. this conflict which may be referred to as “war of national liberation. (Magallona. The Philippines signed the Statute on December 28. It is so classified under Article I. 2005 ed. 307) The International Criminal Court (ICC) The Rome Statute The Rome Statute established the International Criminal Court which “shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern x x x and shall be complementary to the national criminal jurisdictions. distinguish between civilians and combatants. 1988 and had remained open for signature until December 31. p. v.” is included in the classification set out in Article 2 common to the four Geneva Conventions of 1949 x x x. Office of the Executive Secretary.remains unlawful. require that it be subject to ratification. paragraphs 3 and 4 of Protocol I. however. 2000 at the United Nations Headquarters in New York. Its jurisdiction covers the crime of genocide.. (Pimentel. Fundamentals of Public International Law. En Banc [Puno]) What offenses fall under the jurisdiction of the International Criminal Court (ICC)? The International Criminal Court (ICC) shall have the power to exercise jurisdiction over persons for the most serious crimes of international concern. may arise from a legitimate use of force as when a multinational force of UN members engages in armed attack against a State by authority of the UN Security Council as an enforcement measure under Article 42 of the UN Charter. 462 SCRA 622. It also gives coastal States more or less jurisdiction over foreign vessels depending on where the vessel is located (Id. The principle of ne bis in idem in Article 20. “Coastal State’s Jurisdiction Over Foreign Vessels” 14 Pace Int’l. This.]) International Environmental Law Background Information The Convention on Biological Diversity (CBD) 98 . At 29). Office of the Executive Secretary. Such sovereignty extends to the air apace over the territorial sea as well as to its bed and subsoil (Art. however.” This principle becomes operative in Article 1 of the Statute..” (Merlin M. A Primer on the Law of the Sea. thus: Unless the proceedings in the national court is for the purpose of shielding the person concerned from liability. “no person who has been tried by another court for conduct … [constituting crimes within its jurisdiction] shall be tried by the Court with respect to the same conduct x x x. 2014. et al. Rome Statute). It was ratified by the Philippines in 1984 but came into force on November 16. paragraph 3. September 16. subject to the UNCLOS and other rules of international law. regulating the relations of states with respect to the uses of the oceans. 1997. UNCLOS). Rev. Jamaica. The principle of complementarity gives primacy to national jurisdiction x x x. Arigo. En Banc [Puno]) What is the Principle of Complementarity in the Statute of the International Criminal Court (ICC)? The tenth preambular paragraph of the ICC Statute emphasizes that “the International Criminal Court x x x shall be complementary to national criminal jurisdiction. 2005. 4) exclusive economic zone. v. No. 28 [2002]).R.” (Magallona. et al. and the exercise of jurisdiction over maritime regimes. 2. or not conducted independently or impartially. Magallona. Swift. of ICC Statute strengthens complementarity. the Coastal States exercises sovereignty. and 5) the high seas. 462 SCRA 622. En Banc [Villarama. July 6. 206510. 1994 upon the submission of the 60 th ratification. Scott H. The UNCLOS gives to the coastal State sovereign rights in varying degrees over the different zones of the sea which are: 1) internal waters.]) The Law of the Sea The international law of the sea is generally defined as “a body of treaty rules and customary norms governing the uses of the sea. v. the exploitation of its resources. G. Jr. (Pimentel. 3) contiguous zone. p. The UNCLOS is a product of international negotiation that seeks to balance State sovereignty (mare clausum) and the principle of freedom of the high seas (mare liberum). 1) The UNCLOS is a multilateral treaty which was opened for signature on December 10.” The principle of complementarity produces a correlation of the ICC jurisdiction with that of every state over international crimes under the ICC Statute. 2) territorial sea. 1982 at Montego Bay. Insofar as the internal waters and territorial sea is concerned. has to be correlated with the sixth preambular paragraph of the Statute which declares that “it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes. 27.Statute (Article 5. Pedro D. Fundamentals of Public International Law [2005 ed. (Most Rev. It is a branch of public international law. The freedom to use the world’s marine waters is one of the oldest customary principle of international law (Anne Bardin. Jr. lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. Inc. On December 29. industrial chemicals and pharmaceuticals. 2003. (International Service for the Acquisition of Agri-biotech Applications. taking into account risks to human health. For the first time. handling and use of living modified organisms resulting from modern biotechnology that may have adverse effects on the conservation and sustainable use of biological diversity. 2015. This multilateral treaty recognized that “modern biotechnology has great potential for human well-being if developed and used with adequate safety measures for the environment and human health. expressing the normative idea that governments are obligated to “foresee and forestall” harm to the environment.” Its main objectives.” On May 24. 209271. which came into force on September 11. It has been incorporated in various 99 . In the following decades.” (International Service for the Acquisition of Agri-biotech Applications. the precautionary approach shall be widely applied by States according to their capabilities. the precautionary approach was codified under Principle 15. It states that the long term economic progress is only ensured if it s linked with the protection of the environment. which reads: In order to protect the environment. GR No. The Rio Declaration on Environment and Development. v. v. et al. 92 or the “Resolution Concurring in the Ratification of the Cartagena Protocol on Biosafety (CPB) to the UN Convention on Biological Diversity. are the “conservation of biological diversity. 2000. the outcome of the 1992 United Nations Conference on Environment and Development held in Rio de Janeiro. or to develop microorganisms for specific uses. the Philippine Senate adopted Senate Resolution No. Greenpeace Southeast Asia (Philippines). and the responsibilities of human beings to safeguard the common environment. Where there are threats of serious or irreversible damage.” (International Service for the Acquisition of Agri-biotech Applications. 2015. which indicates that lack of scientific certainty is no reason to postpone action to avoid potentially serious or irreversible harm to the environment. et al. On August 14. as spelled out in Article I. December 8. 209271. 2015. 209271.” Its many applications include agricultural production. an agreement was reached on the Cartagena Protocol on Biosafety (Cartagena Protocol). defines the rights of the people to be involved in the development of their economies. Inc. the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources.. The Cartagena Protocol aims “to contribute to ensuring an adequate level of the safe transfer. the Philippines signed the Cartagena Protocol. a supplemental to the CBD. v. Principle 15 codified for the first time at the global level the precautionary approach. livestock. Greenpeace Southeast Asia (Philippines). 2006. En Banc [Villarama]) The Precautionary Principle The precautionary principle originated in Germany in the 1960s. and specifically focusing on transboundary movements. et al. GR No. 1993. the precautionary principle has served as the normative guideline for policymaking by many national governments. En Banc [Villarama]) Biotechnology Biotechnology is a multi-disciplinary field which may be defined as “any technique that uses living organisms or substances from those organisms to make or modify a product. December 8. to improve plants or animals.. December 8. En Banc [Villarama]) The Cartagena Protocol In January 2000. Inc. the Convention on Biological Diversity (CBD) came into force.. GR No. Greenpeace Southeast Asia (Philippines). 2000. finalized and adopted in Montreal on January 29.international legal instruments. Rule 20. The Rules (of Procedure for Environmental Cases) incorporated the principle in Part V. 100 . The Cartagena Protocol on Biosafety to the Convention on Biological Diversity. establishes an international regime primarily aimed at regulating trade in GMOs intended for release into the environment. in accordance with Principle 15 of the Rio Declaration on Environment and Development.