POLITICAL & INTERNATIONAL LAW

Selected Recent Jurisprudence (2010-May 2016)1

By Prof. Alexis F. Medina2

PART I:

CONSTITUTIONAL LAW

CONSTITUTIONAL LAW:
POWERS & STRUCTURE OF GOVERNMENT

STATE POLICIES AND PRINCIPLES

CIVILIAN SUPREMACY

A civilian President is the ceremonial, legal and administrative head of the

armed forces. As Commander-in-Chief, the President has the power to direct
military operations and determine military strategy.

[W]hile 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 nations 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. As Commander-in-Chief, he is authorized to direct the movements of the naval and military
forces placed by law at his command, and to employ them in the manner he may deem most
effectual. (Kulayan v. Tan, G.R. No. 187298, July 03, 2012)

SEPARATION OF CHURCH AND STATE

Ecclesiastical affairs are beyond the jurisdiction of civil courts. These include
proceedings for excommunication, ordinations of religious ministers, administration
of sacraments and other activities with attached religious significance. The posting

1 This is a working draft of excerpts from recent jurisprudence, selected and organized under common subjects. The
author wrote the prefatory capsules (bold-faced) to capture the essence of each excerpt, and underscored selected
parts to highlight doctrinal statements, operative words, or case-defining facts. This material is subject to revision,
modification or updating. Reproduction for purely academic purposes with due attribution to the author is permitted.

2 AB Political Science, University of the Philippines (UP), Diliman; Order of the Purple Feather (OPF), UP, College of
Law; Valedictorian, San Sebastian College-Recoletos, Manila, College of Law; Philippine Representative to the World
Trade Organization (WTO) Trade Facilitation Preparatory Committee Meeting for Legal Review (Geneva, Switzerland,
2014); Philippine Representative, Senior Officials Meeting, Asia Pacific Economic Cooperation (APEC), 2015; former
Philippine Youth delegate to Japan and Southeast Asia; Transaction adviser on Public Private Partnerships (PPPS);
Litigation lawyer; formerly with the Ponce Enrile Reyes & Manlastas Law Offices (Pecabar); Professor of
Constitutional Law, San Sebastian College-Recoletos, Manila, College of Law, and Polytechnic University of the
Philippines (PUP), Manila, College of Law; former professor of Constitutional Law, New Ear University, College of Law,
Quezon City; Bar Review Lecturer, Recoletos Review Center, Manila
1|Page
of a tarpaulin classifying election candidates under Team Patay and Team Buhay
according to their respective votes on the Reproductive Health Law -- is not an
ecclesiastical affair.

At the outset, the Constitution mandates the separation of church and state. This takes
many forms. Article III, Section 5 of the Constitution, for instance provides:

Section 5. No law shall be made respecting an establishment of religion, or prohibiting the

free exercise thereof. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No religious test shall be required for the
exercise of civil or political rights.

There are two aspects of this provision. The first is the non-establishment clause.
Second is the free exercise and enjoyment of religious profession and worship. The second
aspect is at issue in this case.

Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or any other
religious make such act immune from any secular regulation. x x x

The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of a bishop
amounts to religious expression. x x x

xxx

As aptly argued by COMELEC, however, the tarpaulin, on its face, does not convey any
religious doctrine of the Catholic church.

That the position of the Catholic Church appears to coincide with the message of the
tarpaulin regarding the RH Law does not, by itself, bring the expression within the ambit of
religious speech. On the contrary, the tarpaulin clearly refers to candidates classified under
Team Patay and Team Buhay according to their respective votes on the RH Law.

The same may be said of petitioners reliance on papal encyclicals to support their claim
that the expression on the tarpaulin is an ecclesiastical matter. With all due respect to the
Catholic faithful, the church doctrines relied upon by petitioners are not binding upon this court.
The position of the Catholic religion in the Philippines as regards the RH Law does not suffice to
qualify the posting by one of its members of a tarpaulin as religious speech solely on such
basis. The enumeration of candidates on the face of the tarpaulin precludes any doubt as to its
nature as speech with political consequences and not religious speech. Furthermore, the
definition of an ecclesiastical affair in Austria v. National Labor Relations Commission cited by
petitioners finds no application in the present case. The posting of the tarpaulin does not fall
within the category of matters that are beyond the jurisdiction of civil courts as enumerated in
the Austria case such as proceedings for excommunication, ordinations of religious ministers,
administration of sacraments and other activities with attached religious significance. (The
Bishop of the Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, January 21,
2015)

Under the establishment clause, the government cannot adopt a religious

groups particular doctrines as policy for everyone. The State is not precluded to
pursue its legitimate secular objectives without being dictated upon by the policies
of any one religion.

In the same breath that the establishment clause restricts what the government can do
with religion, it also limits what religious sects can or cannot do with the government. They can
neither cause the government to adopt their particular doctrines as policy for everyone, nor can
they not cause the government to restrict other groups. To do so, in simple terms, would cause
the State to adhere to a particular religion and, thus, establishing a state religion.

Consequently, the petitioners are misguided in their supposition that the State cannot
enhance its population control program through the RH Law simply because the promotion of
contraceptive use is contrary to their religious beliefs. Indeed, the State is not precluded to
pursue its legitimate secular objectives without being dictated upon by the policies of any one
religion. One cannot refuse to pay his taxes simply because it will cloud his conscience. The
2|Page
demarcation line between Church and State demands that one render unto Caesar the things
that are Caesar's and unto God the things that are God's. (Imbong v. Ochoa, G.R. No. 204819,
April 8, 2014)

PROTECTING THE LIFE OF THE UNBORN

The intent of the Framers of the 1987 Constitution in protecting the life of the
unborn from conception was to prevent the Legislature from legalizing abortion. The RH
law is in line with this intent. It clearly mandates that protection be afforded from the
moment of fertilization.

The clear and unequivocal intent of the Framers of the 1987 Constitution in protecting the
life of the unborn from conception was to prevent the Legislature from enacting a measure legalizing
abortion.

xxx

A reading of the RH Law would show that it is in line with this intent and actually proscribes
abortion. While the Court has opted not to make any determination, at this stage, when life begins,
it finds that the RH Law itself clearly mandates that protection be afforded from the moment of
fertilization. As pointed out by Justice Carpio, the RH Law is replete with provisions that embody the
policy of the law to protect to the fertilized ovum and that it should be afforded safe travel to the
uterus for implantation.

Moreover, the RH Law recognizes that abortion is a crime under Article 256 of the Revised
Penal Code, which penalizes the destruction or expulsion of the fertilized ovum. x x x

x x x [T]he RH Law mandates that protection must be afforded from the moment of
fertilization. By using the word" or," the RH Law prohibits not only drugs or devices that prevent
implantation, but also those that induce abortion and those that induce the destruction of a fetus
inside the mother's womb. (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014)

The RH Law does not legalize abortion as it recognizes that: one, there is a need
to protect the fertilized ovum which already has life, and two, the fertilized ovum must
be protected the moment it becomes existent - all the way until it reaches and implants
in the mother's womb.

[T]he Court finds that the RH Law, consistent with the Constitution, recognizes that the
fertilized ovum already has life and that the State has a bounden duty to protect it. The conclusion
becomes clear because the RH Law, first, prohibits any drug or device that induces abortion (first
kind), which, x x x, refers to that which induces the killing or the destruction of the fertilized ovum,
and, second, prohibits any drug or device the fertilized ovum to reach and be implanted in the
mother's womb (third kind).

By expressly declaring that any drug or device that prevents the fertilized ovum to reach and
be implanted in the mother's womb is an abortifacient (third kind), the RH Law does not intend to
mean at all that life only begins only at implantation, as Hon. Lagman suggests. It also does not
declare either that protection will only be given upon implantation, as the petitioners likewise
suggest. Rather, it recognizes that: one, there is a need to protect the fertilized ovum which already
has life, and two, the fertilized ovum must be protected the moment it becomes existent - all the
way until it reaches and implants in the mother's womb. After all, if life is only recognized and
afforded protection from the moment the fertilized ovum implants - there is nothing to prevent any
drug or device from killing or destroying the fertilized ovum prior to implantation.

x x x [I]nasmuch as it affords protection to the fertilized ovum, the RH Law does not
sanction abortion. To repeat, it is the Court's position that life begins at fertilization, not at
implantation. When a fertilized ovum is implanted in the uterine wall, its viability is sustained but
that instance of implantation is not the point of beginning of life. It started earlier. And as defined by
the RH Law, any drug or device that induces abortion, that is, which kills or destroys the fertilized
ovum or prevents the fertilized ovum to reach and be implanted in the mother's womb, is an
abortifacient. (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014)

3|Page
 JUDICIAL REVIEW

ACTUAL CASE OR CONTROVERSY REQUIREMENT

A proposed bill does not present an actual justiciable controversy. The filing
of bills is within the legislative power of Congress and is not subject to judicial
restraint. Also, the judiciary cannot speculate on the constitutionality or
unconstitutionality of a bill that Congress may or may not pass.

One of the requirements for this court to exercise its power of judicial review is the
existence of an actual controversy. This means that there must be an existing case or
controversy that is appropriate or ripe for determination, not conjectural or anticipatory, lest the
decision of the court would amount to an advisory opinion.

As emphasized by this court in Information Technology Foundation of the Phils. v.

Commission on Elections:

It is well-established in this jurisdiction that . . . for a court to exercise its power

of adjudication, there must be an actual case or controversy one which involves a
conflict of legal rights, an assertion of opposite legal claims susceptible of judicial
resolution; the case must not be moot or academic or based on extra-legal or other similar
considerations not cognizable by a court of justice. . . . [C]ourts do not sit to adjudicate
mere academic questions to satisfy scholarly interest, however intellectually challenging.
The controversy must be justiciable definite and concrete, touching on the legal
relations of parties having adverse legal interests. In other words, the pleadings must show
an active antagonistic assertion of a legal right, on the one hand, and a denial thereof on
the other; that is, it must concern a real and not a merely theoretical question. There
ought to be an actual and substantial controversy admitting of specific relief through a
decree conclusive in nature, as distinguished from an opinion advising what the law would
be upon a hypothetical state of facts.

For this court to rule on constitutional issues, there must first be a justiciable
controversy. Pleadings before this court must show a violation of an existing legal right or a
controversy that is ripe for judicial determination. In the concurring opinion in Belgica v. Ochoa:

Basic in litigation raising constitutional issues is the requirement that there must be
an actual case or controversy. This Court cannot render an advisory opinion. x x x

Petitioners allegations show that he wants this court to strike down the proposed bills
abolishing the Judiciary Development Fund. x x x This court is not empowered to review
proposed bills because a bill is not a law.

[In] Montesclaros v. COMELEC x x x [t]his court held that:

Petitioners prayer to prevent Congress from enacting into law a proposed bill
lowering the membership age in the SK does not present an actual justiciable controversy.
A proposed bill is not subject to judicial review because it is not a law. A proposed bill
creates no right and imposes no duty legally enforceable by the Court. A proposed bill,
having no legal effect, violates no constitutional right or duty. The Court has no power to
declare a proposed bill constitutional or unconstitutional because that would be in the
nature of rendering an advisory opinion on a proposed act of Congress. x x x . . . . . . . .
Thus, there can be no justiciable controversy involving the constitutionality of a proposed
bill. The Court can exercise its power of judicial review only after a law is enacted, not
before. Under the separation of powers, the Court cannot restrain Congress from passing
any law, or from setting into motion the legislative mill according to its internal rules. Thus,
the following acts of Congress in the exercise of its legislative powers are not subject to
judicial restraint: the filing of bills by members of Congress, the approval of bills by each
chamber of Congress, the reconciliation by the Bicameral Committee of approved bills, and
the eventual approval into law of the reconciled bills by each chamber of Congress. x x x

4|Page
 Similar to Montesclaros, petitioner is asking this court to stop Congress from passing
laws that will abolish the Judiciary Development Fund. This court has explained that the filing of
bills is within the legislative power of Congress and is not subject to judicial restraint. A
proposed bill produces no legal effects until it is passed into law. Under the Constitution, the
judiciary is mandated to interpret laws. It cannot speculate on the constitutionality or
unconstitutionality of a bill that Congress may or may not pass. It cannot rule on mere
speculations or issues that are not ripe for judicial determination. The petition, therefore, does
not present any actual case or controversy that is ripe for this courts determination. (In The
Matter Of: Save The Supreme Court Judicial Independence and Fiscal Autonomy Movements v.
Abolition of Judiciary Development Fund and Reduction of Fiscal Autonomy, UDK-15143,
January 21, 2015)

An anticipatory petition must clearly show that the challenged prohibition

forbids the conduct or activity that a petitioner seeks to do. Otherwise, there is no
actual controversy. The possibility of abuse in the implementation of law does not
present an actual controversy. Allegations of abuse must be anchored on real events
before courts may step in to settle actual controversies.

An actual case or controversy means an existing case or controversy that is appropriate

or ripe for determination, not conjectural or anticipatory, lest the decision of the court would
amount to an advisory opinion.

xxx

Very recently, the US Supreme Court, in Holder v. Humanitarian Law Project, allowed
the pre-enforcement review of a criminal statute, challenged on vagueness grounds, since
plaintiffs faced a credible threat of prosecution and should not be required to await and
undergo a criminal prosecution as the sole means of seeking relief. x x x

Prevailing American jurisprudence allows an adjudication on the merits when an

anticipatory petition clearly shows that the challenged prohibition forbids the conduct or activity
that a petitioner seeks to do, as there would then be a justiciable controversy.

Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that the
challenged provisions of RA 9372 forbid constitutionally protected conduct or activity that they
seek to do. No demonstrable threat has been established, much less a real and existing one.

Petitioners obscure allegations of sporadic surveillance and supposedly being tagged as

communist fronts in no way approximate a credible threat of prosecution. From these
allegations, the Court is being lured to render an advisory opinion, which is not its function.

Without any justiciable controversy, the petitions have become pleas for declaratory
relief, over which the Court has no original jurisdiction. Then again, declaratory actions
characterized by double contingency, where both the activity the petitioners intend to
undertake and the anticipated reaction to it of a public official are merely theorized, lie beyond
judicial review for lack of ripeness.

The possibility of abuse in the implementation of RA 9372 does not avail to take the
present petitions out of the realm of the surreal and merely imagined. x x x Allegations of abuse
must be anchored on real events before courts may step in to settle actual controversies
involving rights which are legally demandable and enforceable. (Southern Hemisphere
Engagement Network v. Anti-Terrorism Council, G.R. No. 178552, October 5, 2010)

Facial challenges and the actual controversy requirement: A litigant cannot

successfully mount a facial challenge against a criminal statute on either vagueness
or overbreadth grounds. A facial challenge of penal statutes will go against the
doctrinal requirement of an existing and concrete controversy.

Petitioners assail for being intrinsically vague and impermissibly broad the definition of
the crime of terrorism under RA 9372 x x x, leaving law enforcement agencies with no standard
to measure the prohibited acts.

5|Page
 xxx

Distinguished from an as-applied challenge which considers only extant facts

affecting real litigants, a facial invalidation is an examination of the entire law, pinpointing its
flaws and defects, not only on the basis of its actual operation to the parties, but also on the
assumption or prediction that its very existence may cause others not before the court to
refrain from constitutionally protected speech or activities.

Justice Mendoza accurately phrased the subtitle in his concurring opinion that the
vagueness and overbreadth doctrines, as grounds for a facial challenge, are not applicable
to penal laws. A litigant cannot thus successfully mount a facial challenge against a
criminal statute on either vagueness or overbreadth grounds.

The allowance of a facial challenge in free speech cases is justified by the aim to avert
the chilling effect on protected speech x x x. As reflected earlier, this rationale is inapplicable to
plain penal statutes that generally bear an in terrorem effect in deterring socially harmful
conduct. x x x

The Court x x x underscored that an on-its-face invalidation of penal statutes x x x may

not be allowed.

[T]he rule established in our jurisdiction is, only statutes on free speech, religious
freedom, and other fundamental rights may be facially challenged. Under no case may
ordinary penal statutes be subjected to a facial challenge. The rationale is obvious.
If a facial challenge to a penal statute is permitted, the prosecution of crimes may be
hampered. No prosecution would be possible. A strong criticism against employing a facial
challenge in the case of penal statutes, if the same is allowed, would effectively go against
the grain of the doctrinal requirement of an existing and concrete controversy before
judicial power may be appropriately exercised. A facial challenge against a penal statute is,
at best, amorphous and speculative. It would, essentially, force the court to consider third
parties who are not before it. x x x

It is settled, on the other hand, that the application of the overbreadth doctrine is
limited to a facial kind of challenge and, owing to the given rationale of a facial challenge,
applicable only to free speech cases.

By its nature, the overbreadth doctrine has to necessarily apply a facial type of
invalidation in order to plot areas of protected speech, inevitably almost always under situations
not before the court, that are impermissibly swept by the substantially overbroad
regulation. Otherwise stated, a statute cannot be properly analyzed for being substantially
overbroad if the court confines itself only to facts as applied to the litigants.

The most distinctive feature of the overbreadth technique is that it marks an

exception to some of the usual rules of constitutional litigation. Ordinarily, a particular
litigant claims that a statute is unconstitutional as applied to him or her; if the litigant
prevails, the courts carve away the unconstitutional aspects of the law by invalidating its
improper applications on a case to case basis. Moreover, challengers to a law are not
permitted to raise the rights of third parties and can only assert their own interests. In
overbreadth analysis, those rules give way; challenges are permitted to raise the rights of
third parties; and the court invalidates the entire statute "on its face," not merely "as
applied for" so that the overbroad law becomes unenforceable until a properly authorized
court construes it more narrowly. The factor that motivates courts to depart from the
normal adjudicatory rules is the concern with the "chilling;" deterrent effect of the
overbroad statute on third parties not courageous enough to bring suit. The Court
assumes that an overbroad laws "very existence may cause others not before the court to
refrain from constitutionally protected speech or expression." An overbreadth ruling is
designed to remove that deterrent effect on the speech of those third parties.

In restricting the overbreadth doctrine to free speech claims, the Court, in at least two
cases, observed that the US Supreme Court has not recognized an overbreadth doctrine outside
the limited context of the First Amendment, and that claims of facial overbreadth have been
entertained in cases involving statutes which, by their terms, seek to regulate only spoken
words. In Virginia v. Hicks, it was held that rarely, if ever, will an overbreadth challenge
succeed against a law or regulation that is not specifically addressed to speech or speech-

6|Page
related conduct. Attacks on overly broad statutes are justified by the transcendent value to all
society of constitutionally protected expression.

xxx

American jurisprudence instructs that vagueness challenges that do not involve the First
Amendment must be examined in light of the specific facts of the case at hand and not with
regard to the statute's facial validity.

xxx

IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of the
therein subject penal statute as applied to the therein petitioners inasmuch as they were
actually charged with the pertinent crimes challenged on vagueness grounds. The Court in said
cases, however, found no basis to review the assailed penal statute on its face and in its
entirety.

xxx

As earlier reflected, petitioners have established neither an actual charge nor a credible
threat of prosecution under RA 9372. Even a limited vagueness analysis of the assailed
definition of terrorism is thus legally impermissible. The Court reminds litigants that judicial
power neither contemplates speculative counseling on a statutes future effect on hypothetical
scenarios nor allows the courts to be used as an extension of a failed legislative lobbying in
Congress. (Southern Hemisphere Engagement Network v. Anti-Terrorism Council, G.R. No.
178552, October 5, 2010)

Moot and academic principle and its exceptions: While a petition to be

included in the certified list of candidates has become moot after the elections, the
Court is not precluded from setting forth "controlling and authoritative doctrines" in
denying due course to or cancelling certificates of candidacy of nuisance candidates.

A case is moot and academic if it "ceases to present a justiciable controversy because of

supervening events so that a declaration thereon would be of no practical use or value." When
a case is moot and academic, this court generally declines jurisdiction over it.

There are recognized exceptions to this rule. This court has taken cognizance of moot
and academic cases when:

(1) there was a grave violation of the Constitution; (2) the case involved a situation of
exceptional character and was of paramount public interest; (3) the issues raised required the
formulation of controlling principles to guide the Bench, the Bar and the public; and (4) the
case was capable of repetition yet evading review.

We may no longer act on petitioners prayer that his name be included in the certified
list of candidates and be printed on the ballots as a candidate for Member of the Sangguniang
Panlungsod. x x x [T]he May 13, 2013 elections had been concluded, with the winners already
proclaimed.

That this case is moot and academic, however, does not preclude us from setting forth
"controlling and authoritative doctrines" to be observed by respondent in motu proprio denying
due course to or cancelling certificates of candidacy of alleged nuisance candidates. This motu
proprio authority is always subject to the alleged nuisance candidates opportunity to be heard
an essential element of procedural due process. (Timbol v. Comelec, G.R. No. 206004,
February 24, 2015)

Exceptions to the moot and academic principle: The constitutionality of the

Pork Barrel System involves a grave violation of the Constitution; presents a
situation of exceptional character as well as a matter of paramount public
interest; involves a compelling need to formulate controlling principles to guide

7|Page
the bench, the bar, and the public on how public funds should be utilized; and is an
issue capable of repetition yet evading review.

Even on the assumption of mootness, jurisprudence, nevertheless, dictates that the

moot and academic principle is not a magical formula that can automatically dissuade the
Court in resolving a case. The Court will decide cases, otherwise moot, if: first, there is a
grave violation of the Constitution; second, the exceptional character of the situation and
the paramount public interest is involved; third, when the constitutional issue raised
requires formulation of controlling principles to guide the bench, the bar, and the public; and
fourth, the case is capable of repetition yet evading review.

The applicability of the first exception is clear from the fundamental posture of
petitionersthey essentially allege grave violations of the Constitution with respect to,
inter alia, the principles of separation of powers, non-delegability of legislative power,
checks and balances, accountability and local autonomy.

The applicability of the second exception is also apparent from the nature of the
interests involved the constitutionality of the very system within which significant amounts
of public funds have been and continue to be utilized and expended undoubtedly presents a
situation of exceptional character as well as a matter of paramount public interest. The
present petitions, in fact, have been lodged at a time when the systems flaws have never
before been magnified. x x x

xxx

The Court also finds the third exception to be applicable largely due to the practical
need for a definitive ruling on the systems constitutionality. As disclosed during the Oral
Arguments, the CoA Chairperson estimates that thousands of notices of disallowances will
be issued by her office in connection with the findings made in the CoA Report. x x x
Accordingly, there is a compelling need to formulate controlling principles relative to the
issues raised herein in order to guide the bench, the bar, and the public, not just for the
expeditious resolution of the anticipated disallowance cases, but more importantly, so
that the government may be guided on how public funds should be utilized in
accordance with constitutional principles.

Finally, the application of the fourth exception is called for by the recognition that
the preparation and passage of the national budget is, by constitutional imprimatur, an
affair of annual occurrence. The relevance of the issues before the Court does not cease with
the passage of a PDAF-free budget for 2014. (Belgica v. Honorable Executive Secretary
Ochoa, G.R. No. 208566, November 19, 2013)

While the constitutionality of the concurrent holding of the two positions in

the Cabinet has become moot and academic, the Supreme Court may still resolve
the issue because all recognized exceptions obtain.

[D]id not the intervening appointment of and assumption by Cadiz as the Solicitor
General during the pendency of this suit render this suit and the issue tendered herein moot
and academic?

A moot and academic case is one that ceases to present a justiciable controversy by
virtue of supervening events, so that a declaration thereon would be of no practical use or
value. Although the controversy could have ceased due to the intervening appointment of and
assumption by Cadiz as the Solicitor General during the pendency of this suit, and such
cessation of the controversy seemingly rendered moot and academic the resolution of the issue
of the constitutionality of the concurrent holding of the two positions by Agra, the Court should
still go forward and resolve the issue and not abstain from exercising its power of judicial
review because this case comes under several of the well-recognized exceptions established in
jurisprudence. Verily, the Court did not desist from resolving an issue that a supervening event
meanwhile rendered moot and academic if any of the following recognized exceptions obtained,
namely: (1) there was a grave violation of the Constitution; (2) the case involved a situation of
exceptional character and was of paramount public interest; (3) the constitutional issue raised

8|Page
required the formulation of controlling principles to guide the Bench, the Bar and the public;
and (4) the case was capable of repetition, yet evading review.

It is the same here. The constitutionality of the concurrent holding by Agra of the two
positions in the Cabinet, albeit in acting capacities, was an issue that comes under all the
recognized exceptions. (Funa v. Agra, G.R. No. 191644, February 19, 2013)

Even if the DAP program has already been terminated, the Court can still rule
on its constitutionality because all the exceptions to the moot and academic
principle are present.

The Solicitor General then quickly confirmed the termination of the [Disbursement
Acceleration Program] as a program, and urged that its termination had already mooted the
challenges to the DAPs constitutionality.

xxx

A moot and academic case is one that ceases to present a justiciable controversy by
virtue of supervening events, so that a declaration thereon would be of no practical use or
value.

The Court cannot agree that the termination of the DAP as a program was a
supervening event that effectively mooted these consolidated cases. Verily, the Court had in the
past exercised its power of judicial review despite the cases being rendered moot and academic
by supervening events, like: (1) when there was a grave violation of the Constitution; (2) when
the case involved a situation of exceptional character and was of paramount public interest; (3)
when the constitutional issue raised required the formulation of controlling principles to guide
the Bench, the Bar and the public; and (4) when the case was capable of repetition yet evading
review. Assuming that the petitioners several submissions against the DAP were ultimately
sustained by the Court here, these cases would definitely come under all the exceptions. Hence,
the Court should not abstain from exercising its power of judicial review. (Araullo v. Aquino,
G.R. No. 209287, July 1, 2014)

THE STANDING REQUIREMENT

Locus standi: If the petition is anchored on a public right, such as the peoples
right to information on matters of public concern, any citizen can be the real party in
interest.

If the petition is anchored on the peoples right to information on matters of public

concern, any citizen can be the real party in interest. The requirement of personal interest is
satisfied by the mere fact that the petitioner is a citizen, and therefore, part of the general
public which possesses the right. There is no need to show any special interest in the result. It
is sufficient that petitioners are citizens and, as such, are interested in the faithful execution of
the laws. (Initiatives for Dialogue and Empowerment [IDEAL] v. Power Sector Liabilities and
Management Corporation [PSALM], G.R. No. 192088, October 9, 2012)

A facial challenge on grounds of overbreadth or vagueness is an exception to

the prohibition on third-party standing. A petitioner may mount a facial challenge
to the constitutionality of a statute even if he claims no violation of his own rights
under the assailed statute where it involves free speech on grounds of overbreadth
or vagueness of the statute. This is to counter the chilling effect on protected
speech.

When a penal statute encroaches upon the freedom of speech, a facial challenge
grounded on the void-for-vagueness doctrine is acceptable. The inapplicability of the doctrine
must be carefully delineated. x x x [W]e must view these statements of the Court on the
inapplicability of the overbreadth and vagueness doctrines to penal statutes as appropriate only

9|Page
insofar as these doctrines are used to mount facial challenges to penal statutes not involving
free speech.

In an as applied challenge, the petitioner who claims a violation of his constitutional

right can raise any constitutional groundabsence of due process, lack of fair notice, lack of
ascertainable standards, overbreadth, or vagueness. Here, one can challenge the
constitutionality of a statute only if he asserts a violation of his own rights. 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. This rule is also known as the prohibition against third-party
standing.

But this rule admits of exceptions. A petitioner may for instance mount a facial
challenge to the constitutionality of a statute even if he claims no violation of his own rights
under the assailed statute where it involves free speech on grounds of overbreadth or
vagueness of the statute. The rationale for this exception is to counter the chilling effect on
protected speech that comes from statutes violating free speech. A person who does not know
whether his speech constitutes a crime under an overbroad or vague law may simply restrain
himself from speaking in order to avoid being charged of a crime. The overbroad or vague law
thus chills him into silence. (Disini v. Secretary of Justice, G.R. No. 203335, February 18, 2014)

Locus standi: The Rules of Procedure for Environmental Cases allow for a
"citizen suit," and permit any Filipino citizen, as a steward of nature, to file an action
before our courts for violations of our environmental laws; this collapses the
traditional rule on personal and direct interest, on the principle that humans are
stewards of nature.

[I]n our jurisdiction, locus standi in environmental cases has been given a more liberalized
approach. While developments in Philippine legal theory and jurisprudence have not progressed
as far as Justice Douglas's paradigm of legal standing for inanimate objects, the current trend
moves towards simplification of procedures and facilitating court access in environmental cases.

Recently, the Court passed the landmark Rules of Procedure for Environmental Cases,
which allow for a "citizen suit," and permit any Filipino citizen to file an action before our courts
for violations of our environmental laws:

SEC. 5. Citizen suit. - Any Filipino citizen in representation of others, including minors or
generations yet unborn, may file an action to enforce rights or obligations under environmental
laws. Upon the filing of a citizen suit, the court shall issue an order which shall contain a brief
description of the cause of action and the reliefs prayed for, requiring all interested parties to
manifest their interest to intervene in the case within fifteen (15) days from notice thereof. The
plaintiff may publish the order once in a newspaper of a general circulation in the Philippines or
furnish all affected barangays copies of said order.

xxx

Explaining the rationale for this rule, the Court, in the Annotations to the Rules of
Procedure for Environmental Cases, commented:

Citizen suit. To further encourage the protection of the environment, the Rules
enable litigants enforcing environmental rights to file their cases as citizen suits. This
provision liberalizes standing for all cases filed enforcing environmental laws and collapses
the traditional rule on personal and direct interest, on the principle that humans are
stewards of nature. The terminology of the text reflects the doctrine first enunciated in
Oposa v. Factoran, insofar as it refers to minors and generations yet unborn.
(Underscoring supplied, citation omitted.)

Although this petition was filed in 2007, years before the effectivity of the Rules of
Procedure for Environmental Cases, it has been consistently held that rules of procedure "may
be retroactively applied to actions pending and undetermined at the time of their passage and
will not violate any right of a person who may feel that he is adversely affected, inasmuch as
there is no vested rights in rules of procedure."

xxx

10 | P a g e
 Moreover, even before the Rules of Procedure for Environmental Cases became effective,
this Court had already taken a permissive position on the issue of locus standi in environmental
cases. In Oposa, we allowed the suit to be brought in the name of generations yet unborn
"based on the concept of intergenerational responsibility insofar as the right to a balanced and
healthful ecology is concerned." x x x

In light of the foregoing, the need to give the Resident Marine Mammals legal standing
has been eliminated by our Rules, which allow any Filipino citizen, as a steward of nature, to
bring a suit to enforce our environmental laws. It is worth noting here that the Stewards are
joined as real parties in the Petition and not just in representation of the named cetacean
species. The Stewards, Ramos and Eisma-Osorio, having shown in their petition that there may
be possible violations of laws concerning the habitat of the Resident Marine Mammals, are
therefore declared to possess the legal standing to file this petition. (Resident Marine Mammals
of the Protected Seascape of Taon Strait v. Secretary Reyes, G.R. No. 180771, April 21, 2015)

POLITICAL QUESTIONS

The size limitation [on election campaign propaganda] and its reasonableness
are not political questions because the existence of constitutionally imposed limits
on regulations on free speech justifies subjecting the official actions of the Comelec
to review of the Court.

Respondents argue further that the size limitation [on election campaign propaganda]
and its reasonableness is a political question, hence not within the ambit of this courts power of
review. x x x

This case concerns the right of petitioners, who are non-candidates, to post the
tarpaulin in their private property, as an exercise of their right of free expression. Despite the
invocation of the political question doctrine by respondents, this court is not proscribed from
deciding on the merits of this case.

In Taada v. Cuenco, this court previously elaborated on the concept of what

constitutes a political question:

What is generally meant, when it is said that a question is political, and not
judicial, is that it is a matter which is to be exercised by the people in their primary political
capacity, or that it has been specifically delegated to some other department or particular
officer of the government, with discretionary power to act. (Emphasis omitted)

xxx

The case before this court does not call for the exercise of prudence or modesty. There
is no political question. It can be acted upon by this court through the expanded jurisdiction
granted to this court through Article VIII, Section 1 of the Constitution.

A political question arises in constitutional issues relating to the powers or competence

of different agencies and departments of the executive or those of the legislature. The political
question doctrine is used as a defense when the petition asks this court to nullify certain acts
that are exclusively within the domain of their respective competencies, as provided by the
Constitution or the law. In such situation, presumptively, this court should act with deference.
It will decline to void an act unless the exercise of that power was so capricious and arbitrary so
as to amount to grave abuse of discretion.

The concept of a political question, however, never precludes judicial review when the
act of a constitutional organ infringes upon a fundamental individual or collective right. Even
assuming arguendo that the COMELEC did have the discretion to choose the manner of
regulation of the tarpaulin in question, it cannot do so by abridging the fundamental right to
expression.

Marcos v. Manglapus limited the use of the political question doctrine:

11 | P a g e
 When political questions are involved, the Constitution limits the determination to
whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the official whose action is being questioned. If grave abuse is
not established, the Court will not substitute its judgment for that of the official concerned
and decide a matter which by its nature or by law is for the latter alone to decide.

xxx

As stated in Francisco, a political question will not be considered justiciable if there are
no constitutionally imposed limits on powers or functions conferred upon political bodies.
Hence, the existence of constitutionally imposed limits justifies subjecting the official actions of
the body to the scrutiny and review of this court.

In this case, the Bill of Rights gives the utmost deference to the right to free speech.
Any instance that this right may be abridged demands judicial scrutiny. It does not fall squarely
into any doubt that a political question brings. (The Diocese of Bacolod v. Commission on
Elections, G.R. No. 205728, January 21, 2015)

Political questions: The Court may not pass upon questions of wisdom, justice
or expediency of a law. It may do so where an attendant unconstitutionality or
grave abuse of discretion results.

[W]hile the Court may not pass upon questions of wisdom, justice or expediency of the
RH Law, it may do so where an attendant unconstitutionality or grave abuse of discretion
results. x x x

x x x The Court may pass upon the constitutionality of acts of the legislative and the
executive branches, since its duty is not to review their collective wisdom but, rather, to make
sure that they have acted in consonance with their respective authorities and rights as
mandated of them by the Constitution. x x x.

xxx

x x x Where an action of the legislative branch is seriously alleged to have infringed the
Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the
dispute. The question thus posed is judicial rather than political. The duty (to adjudicate)
remains to assure that the supremacy of the Constitution is upheld." Once a "controversy as to
the application or interpretation of constitutional provision is raised before this Court (as in the
instant case), it becomes a legal issue which the Court is bound by constitutional mandate to
decide. (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014)

Political questions: The conduct of the foreign relations is committed by the

Constitution to the executive and legislative departments. The Executive
Department has the exclusive prerogative to determine whether to espouse Filipino
citizens claims against Japan.

Petitioners argue that the general waiver of claims made by the Philippine government
in the Treaty of Peace with Japan is void. They claim that the comfort women system
established by Japan, and the brutal rape and enslavement of petitioners constituted a crime
against humanity, sexual slavery, and torture. They allege that the prohibition against these
international crimes is jus cogens norms from which no derogation is possible; as such, in
waiving the claims of Filipina comfort women and failing to espouse their complaints against
Japan, the Philippine government is in breach of its legal obligation not to afford impunity for
crimes against humanity. x x x

xxx

Stripped down to its essentials, the issue in this case is whether the Executive
Department committed grave abuse of discretion in not espousing petitioners claims for official
apology and other forms of reparations against Japan.

The petition lacks merit.

12 | P a g e
 From a Domestic Law Perspective, the Executive Department has the exclusive
prerogative to determine whether to espouse petitioners claims against Japan.

xxx

Certain types of cases often have been found to present political questions. One such
category involves questions of foreign relations.

The conduct of the foreign relations of our government is committed by the Constitution
to the executive and legislative--'the political'--departments of the government, and the
propriety of what may be done in the exercise of this political power is not subject to judicial
inquiry or decision

To be sure, not all cases implicating foreign relations present political questions, and
courts certainly possess the authority to construe or invalidate treaties and executive
agreements. However, the question whether the Philippine government should espouse claims
of its nationals against a foreign government is a foreign relations matter, the authority for
which is demonstrably committed by our Constitution not to the courts but to the political
branches. In this case, the Executive Department has already decided that it is to the best
interest of the country to waive all claims of its nationals for reparations against Japan in the
Treaty of Peace of 1951. The wisdom of such decision is not for the courts to question. (Vinuya
v. Executive Secretary, G.R. No. 162230, 28 April 2010)

The validity of the Pork Barrel System is not a political question because it is
not an issue dependent upon the wisdom of the political branches of government
but rather a legal one which the Constitution itself has commanded the Court to act
upon.

The intrinsic constitutionality of the "Pork Barrel System" is not an issue dependent upon
the wisdom of the political branches of government but rather a legal one which the
Constitution itself has commanded the Court to act upon. Scrutinizing the contours of the
system along constitutional lines is a task that the political branches of government are
incapable of rendering precisely because it is an exercise of judicial power. (Belgica v. Executive
Secretary Ochoa, G.R. No. 208566, November 19, 2013)

DOCTRINE OF OPERATIVE FACT

Under the doctrine of operative fact, in the interest of fair play, the actions
previous to the declaration of unconstitutionality are legally recognized. This is
because the existence of a law or executive act prior to its invalidation is an
operative fact. It provides an exception to the general rule that a void or
unconstitutional law produces no effect.

Under the doctrine of operative fact, in the interest of fair play, the actions previous to
the declaration of unconstitutionality are legally recognized. It nullifies the effects of an
unconstitutional law by recognizing that the existence of a statute prior to a determination of
unconstitutionality is an operative fact and may have consequences which cannot always be
ignored. Thus, acts of the Judicial and Bar Council, before its composition was declared
unconstitutional, are valid. (Chavez v. Judicial and Bar Council, G.R. No. 202242, July 17, 2012)

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. 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. It is resorted to only as a matter of equity and fair play. The Court can apply the
operative fact doctrine to acts and consequences that resulted from the reliance not only on a
law or executive act which is quasi-legislative in nature but also on decisions or orders of the
executive branch which were later nullified.

13 | P a g e
 The adoption and the implementation of the DAP and its related issuances were
executive acts. In that context, the doctrine of operative fact can apply only to the PAPs that
can no longer be undone, and whose beneficiaries relied in good faith on the validity of the
DAP, but cannot apply to the authors, proponents and implementors 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. (Araullo v. Aquino, G.R. No. 209287, July 1,
2014)

As a general rule, the nullification of an unconstitutional law or act carries

with it the illegality of its effects. However, in cases where nullification of the
effects will result in inequity and injustice, the operative fact doctrine may apply.
Bearing in mind the disastrous impact of nullifying P 144.378 Billion worth of
projects by virtue alone of the invalidation of certain acts under the DAP, the Court
has upheld the efficacy of such DAP-funded projects by applying the operative fact
doctrine.

The petitioners in G.R. No. 209442 pray for the partial reconsideration of the decision on
the ground that the Court thereby:

FAILED TO DECLARE AS UNCONSTITUTIONAL AND ILLEGAL ALL MONEYS UNDER

THE DISBURSEMENT ACCELERATION PROGRAM (DAP) USED FOR ALLEGED
AUGMENTATION OF APPROPRIATION ITEMS THAT DID NOT HAVE ACTUAL DEFICIENCIES

They submit that augmentation of items beyond the maximum amounts recommended
by the President for the programs, activities and projects (PAPs) contained in the budget
submitted to Congress should be declared unconstitutional.

xxx

As a general rule, the nullification of an unconstitutional law or act carries with it the
illegality of its effects. However, in cases where nullification of the effects will result in inequity
and injustice, the operative fact doctrine may apply. In so ruling, the Court has essentially
recognized the impact on the beneficiaries and the country as a whole if its ruling would pave
the way for the nullification of the P144.378 Billion worth of infrastructure projects, social and
economic services funded through the DAP. Bearing in mind the disastrous impact of nullifying
these projects by virtue alone of the invalidation of certain acts and practices under the DAP,
the Court has upheld the efficacy of such DAP-funded projects by applying the operative fact
doctrine. (Araullo v. Aquino, G.R. No. 209287, February 3, 2015)

SEPARATION OF POWERS

Why PDAF/Pork Barrel System is void

The PDAF/Pork Barrel System violates the principle of separation of

powers, as it authorizes legislators to participate in the post-enactment phases of
project implementation, such as project identification, fund release and fund
realignment, thus allowing legislators to intervene and/or assume duties that
properly belong to the sphere of budget execution.

Broadly speaking, there is a violation of the separation of powers principle when one
branch of government unduly encroaches on the domain of another. x x x [T]here is a violation
of the principle when there is impermissible (a) interference with and/or (b) assumption of
another departments functions.

The enforcement of the national budget, as primarily contained in the GAA, is

indisputably a function both constitutionally assigned and properly entrusted to the Executive
branch of government. x x x Thus, unless the Constitution provides otherwise, the Executive
department should exclusively exercise all roles and prerogatives which go into the
implementation of the national budget as provided under the GAA as well as any other
appropriation law.

14 | P a g e
 [T]he Legislative branch of government, much more any of its members, should not
cross over the field of implementing the national budget since, as earlier stated, the same is
properly the domain of the Executive. x x x Upon approval and passage of the GAA, Congress
law-making role necessarily comes to an end and from there the Executives role of
implementing the national budget begins.

xxx

[T]he defining feature of all forms of Congressional Pork Barrel would be the authority
of legislators to participate in the post-enactment phases of project implementation.

At its core, legislators may it be through project lists, prior consultations or program
menus have been consistently accorded post-enactment authority to identify the projects they
desire to be funded through various Congressional Pork Barrel allocations. x x x

Aside from the area of project identification, legislators have also been accorded post-
enactment authority in the areas of fund release and realignment. x x x

Clearly, these post-enactment measures which govern the areas of project identification,
fund release and fund realignment are not related to functions of congressional oversight and,
hence, allow legislators to intervene and/or assume duties that properly belong to the sphere of
budget execution. x x x The fundamental rule [is] from the moment the law becomes
effective, any provision of law that empowers Congress or any of its members to play any role
in the implementation or enforcement of the law violates the principle of separation of powers
and is thus unconstitutional.(Belgica v. Executive Secretary, G.R. No. 208566, November 19,
2013)

The PDAF/Pork Barrel System violates the principle of non-delegation of

legislative power considering that an individual legislator is given the authority to
dictate (a) how much fund would go to (b) a specific project or beneficiary that he
himself also determines, two (2) acts that comprise the exercise of the power of
appropriation, which is lodged in Congress.

[O]nly Congress, acting as a bicameral body, and the people, through the process of
initiative and referendum, may constitutionally wield legislative power and no other. This
premise embodies the principle of non-delegability of legislative power, and the only recognized
exceptions thereto would be: (a) delegated legislative power to local governments which, by
immemorial practice, are allowed to legislate on purely local matters; and (b) constitutionally-
grafted exceptions such as the authority of the President to, by law, exercise powers necessary
and proper to carry out a declared national policy in times of war or other national emergency,
or fix within specified limits, and subject to such limitations and restrictions as Congress may
impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or
imposts within the framework of the national development program of the Government.

xxx

[T]he 2013 PDAF Article, insofar as it confers post-enactment identification authority to

individual legislators, violates the principle of non-delegability since said legislators are
effectively allowed to individually exercise the power of appropriation, which as settled in
Philconsa is lodged in Congress. That the power to appropriate must be exercised only
through legislation is clear from Section 29(1), Article VI of the 1987 Constitution which states
that: "No money shall be paid out of the Treasury except in pursuance of an appropriation
made by law." x x x [T]he Court, in Bengzon v. Secretary of Justice and Insular Auditor
(Bengzon), held that the power of appropriation involves (a) the setting apart by law of a
certain sum from the public revenue for (b) a specified purpose. Essentially, under the 2013
PDAF Article, individual legislators are given a personal lump-sum fund from which they are able
to dictate (a) how much from such fund would go to (b) a specific project or beneficiary that
they themselves also determine. As these two (2) acts comprise the exercise of the power of
appropriation as described in Bengzon, and given that the 2013 PDAF Article authorizes
individual legislators to perform the same, undoubtedly, said legislators have been conferred
the power to legislate which the Constitution does not, however, allow. (Belgica v. Executive
Secretary, G.R. No. 208566, November 19, 2013)

15 | P a g e
 The PDAF/Pork Barrel System undermines the system of checks and
balance by impairing the Presidents item veto power. For the President to exercise
his item-veto power, there must be a proper "item" which may be the object of the
veto. Because PDAF is a lump-sum appropriation, the actual items of PDAF
appropriation would not have been written into the General Appropriations Bill and
thus effectuated without veto consideration. The legislators identification of the
projects after the passage of the GAA denies the President the chance to veto that
item later on.

A prime example of a constitutional check and balance would be the Presidents power
to veto an item written into an appropriation, revenue or tariff bill submitted to him by
Congress for approval through a process known as "bill presentment." The Presidents item-veto
power is found in Section 27(2), Article VI of the 1987 Constitution which reads as follows:
Sec. 27. x x x.

xxxx

(2) The President shall have the power to veto any particular item or items in an
appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he does
not object.

xxx

For the President to exercise his item-veto power, it necessarily follows that there exists
a proper "item" which may be the object of the veto. An item, as defined in the field of
appropriations, pertains to "the particulars, the details, the distinct and severable parts of the
appropriation or of the bill." In the case of Bengzon v. Secretary of Justice of the Philippine
Islands, the US Supreme Court characterized an item of appropriation as follows:
An item of an appropriation bill obviously means an item which, in itself, is a
specific appropriation of money, not some general provision of law which happens to be
put into an appropriation bill.

On this premise, it may be concluded that an appropriation bill, to ensure that the
President may be able to exercise his power of item veto, must contain "specific appropriations
of money" and not only "general provisions" which provide for parameters of appropriation.

Further, it is significant to point out that an item of appropriation must be an item

characterized by singular correspondence meaning an allocation of a specified singular
amount for a specified singular purpose, otherwise known as a "line-item.

xxx

In these cases, petitioners claim that "in the current x x x system where the PDAF is a
lump-sum appropriation, the legislators identification of the projects after the passage of the
GAA denies the President the chance to veto that item later on." x x x

xxx

The Court agrees with petitioners.

Under the 2013 PDAF Article, the amount of P24.79 Billion only appears as a collective
allocation limit since the said amount would be further divided among individual legislators who
would then receive personal lump-sum allocations and could, after the GAA is passed,
effectively appropriate PDAF funds based on their own discretion. As these intermediate
appropriations are made by legislators only after the GAA is passed and hence, outside of the
law, it necessarily means that the actual items of PDAF appropriation would not have been
written into the General Appropriations Bill and thus effectuated without veto consideration.
This kind of lump-sum/post-enactment legislative identification budgeting system x x x impairs
the Presidents power of item veto. As petitioners aptly point out, the above-described system
forces the President to decide between (a) accepting the entire P24.79 Billion PDAF allocation
without knowing the specific projects of the legislators, which may or may not be consistent
with his national agenda and (b) rejecting the whole PDAF to the detriment of all other
legislators with legitimate projects. (Belgica v. Executive Secretary Ochoa, G.R. No. 208566,
November 19, 2013)

16 | P a g e
 The PDAF/Pork Barrel System undermines public accountability by
impairing Congress oversight functions considering that legislators would, in effect,
be checking on activities in which they themselves participate. It also violates the
constitutional prohibition on legislators intervention on matters where he may be
called upon to act.

Petitioners further relate that the system under which various forms of Congressional
Pork Barrel operate defies public accountability as it renders Congress incapable of checking
itself or its Members. In particular, they point out that the Congressional Pork Barrel "gives each
legislator a direct, financial interest in the smooth, speedy passing of the yearly budget" which
turns them "from fiscalizers" into "financially-interested partners." x x x

xxx

The Court agrees with petitioners that certain features embedded in some forms of
Congressional Pork Barrel, among others the 2013 PDAF Article, has an effect on congressional
oversight. The fact that individual legislators are given post-enactment roles in the
implementation of the budget makes it difficult for them to become disinterested "observers"
when scrutinizing, investigating or monitoring the implementation of the appropriation law. To a
certain extent, the conduct of oversight would be tainted as said legislators, who are vested
with post-enactment authority, would, in effect, be checking on activities in which they
themselves participate. Also, it must be pointed out that this very same concept of post-
enactment authorization runs afoul of Section 14, Article VI of the 1987 Constitution which
provides that:

Sec. 14. No Senator or Member of the House of Representatives may personally

appear as counsel before any court of justice or before the Electoral Tribunals, or quasi-
judicial and other administrative bodies. Neither shall he, directly or indirectly, be
interested financially in any contract with, or in any franchise or special privilege granted
by the Government, or any subdivision, agency, or instrumentality thereof, including any
government-owned or controlled corporation, or its subsidiary, during his term of office. He
shall not intervene in any matter before any office of the Government for his pecuniary
benefit or where he may be called upon to act on account of his office. (Emphasis
supplied)

Clearly, allowing legislators to intervene in the various phases of project implementation

a matter before another office of government renders them susceptible to taking undue
advantage of their own office. (Belgica v. Executive Secretary Ochoa, G.R. No. 208566,
November 19, 2013)

The PDAF/Pork Barrel System violates the constitutional principles on local

autonomy as it allows district representatives who are national officers to substitute
the judgement of local officials on use of public funds for local development. A
Congressman can simply bypass the local development council and initiate projects
on his own.

In the cases at bar, petitioners contend that the Congressional Pork Barrel goes against
the constitutional principles on local autonomy since it allows district representatives, who are
national officers, to substitute their judgments in utilizing public funds for local development.
The Court agrees with petitioners.

xxx

With PDAF, a Congressman can simply bypass the local development council and initiate
projects on his own, and even take sole credit for its execution. Indeed, this type of personality-
driven project identification has not only contributed little to the overall development of the
district, but has even contributed to "further weakening infrastructure planning and
coordination efforts of the government."

Thus, insofar as individual legislators are authorized to intervene in purely local matters
and thereby subvert genuine local autonomy, the 2013 PDAF Article as well as all other similar
forms of Congressional Pork Barrel is deemed unconstitutional.

Thus, insofar as individual legislators are authorized to intervene in purely local matters
and thereby subvert genuine local autonomy, the 2013 PDAF Article as well as all other similar

17 | P a g e
forms of Congressional Pork Barrel is deemed unconstitutional. (Belgica v. Executive Secretary
Ochoa, G.R. No. 208566, November 19, 2013)

THE EXECUTIVE BRANCH

Executive power is granted only to the President. It is only the President, as

Executive, who is authorized to exercise emergency powers as provided under
Section 23, Article VI, of the Constitution, as well as the calling-out powers under
Section 7, Article VII thereof. Certain constitutional powers and prerogatives of the
Chief Executive must be exercised by him in person, such as the power to suspend
the writ of habeas corpus, proclaim martial law, and call out the armed forces.

On 31 March 2009, Governor Tan issued Proclamation 1-09, declaring a state of

emergency in the province of Sulu. It cited the kidnapping incident [of three members from the
International Committee of the Red Cross] as a ground for the said declaration x x x.

In the same Proclamation, respondent Tan called upon the PNP and the CEF to set up
checkpoints and chokepoints, conduct general search and seizures including arrests, and other
actions necessary to ensure public safety. The pertinent portion of the proclamation states:

NOW, THEREFORE, BY VIRTUE OF THE POWERS VESTED IN ME BY LAW, I,

ABDUSAKUR MAHAIL TAN, GOVERNOR OF THE PROVINCE OF SULU, DO HEREBY
DECLARE A STATE OF EMERGENCY IN THE PROVINCE OF SULU, AND CALL ON THE
PHILIPPINE NATIONAL POLICE WITH THE ASSISTANCE OF THE ARMED FORCES OF THE
PHILIPPINES AND THE CIVILIAN EMERGENCY FORCE TO IMPLEMENT THE FOLLOWING:

1. The setting-up of checkpoints and chokepoints in the province;

2. The imposition of curfew for the entire province subject to such Guidelines as
may be issued by proper authorities;

3. The conduct of General Search and Seizure including arrests in the pursuit of
the kidnappers and their supporters; and

4. To conduct such other actions or police operations as may be necessary to

ensure public safety.

xxx

On 16 April 2009, [petitioners] filed the present Petition for Certiorari and Prohibition,
claiming that Proclamation 1-09 was issued with grave abuse of discretion amounting to lack or
excess of jurisdiction, as it threatened fundamental freedoms guaranteed under Article III of
the 1987 Constitution.

i. One executive, one commander-in-chief

[I]t has already been established that there is one repository of executive powers, and
that is the President of the Republic. This means that when Section 1, Article VII of the
Constitution speaks of executive power, it is granted to the President and no one else.

xxx

Corollarily, it is only the President, as Executive, who is authorized to exercise

emergency powers as provided under Section 23, Article VI, of the Constitution, as well as what
became known as the calling-out powers under Section 7, Article VII thereof.

ii. The exceptional character of Commander-in-Chief powers dictate that they are
exercised by one president

Springing from the well-entrenched constitutional precept of One President is the notion
that there are certain acts which, by their very nature, may only be performed by the president
as the Head of the State. One of these acts or prerogatives is the bundle of Commander-in-
Chief powers to which the "calling-out" powers constitutes a portion. x x x

xxx

18 | P a g e
 The power to declare a state of martial law is subject to the Supreme Courts authority
to review the factual basis thereof. By constitutional fiat, the calling-out powers, which is of
lesser gravity than the power to declare martial law, is bestowed upon the President alone. As
noted in Villena, "(t)here are certain constitutional powers and prerogatives of the Chief
Executive of the Nation which must be exercised by him in person and no amount of approval
or ratification will validate the exercise of any of those powers by any other person. Such, for
instance, is his power to suspend the writ of habeas corpus and proclaim martial law x x x.

xxx

In the case of Integrated Bar of the Philippines v. Zamora, the Court had occasion to
rule that the calling-out powers belong solely to the President as commander-in-chief:

When the President calls the armed forces to prevent or suppress lawless violence,
invasion or rebellion, he necessarily exercises a discretionary power solely vested in his
wisdom. This is clear from the intent of the framers and from the text of the Constitution
itself. The Court, thus, cannot be called upon to overrule the Presidents wisdom or
substitute its own. However, this does not prevent an examination of whether such power
was exercised within permissible constitutional limits or whether it was exercised in a
manner constituting grave abuse of discretion. In view of the constitutional intent to give
the President full discretionary power to determine the necessity of calling out the armed
forces, it is incumbent upon the petitioner to show that the Presidents decision is totally
bereft of factual basis.

xxx

In the more recent case of Constantino, Jr. v. Cuisia, the Court characterized these
powers as exclusive to the President, precisely because they are of exceptional import:

x x x The declaration of martial law, the suspension of the writ of habeas corpus,
and the exercise of the pardoning power, notwithstanding the judicial determination of
guilt of the accused, all fall within this special class that demands the exclusive exercise by
the President of the constitutionally vested power. The list is by no means exclusive, but
there must be a showing that the executive power in question is of similar gravitas and
exceptional import.

In addition to being the commander-in-chief of the armed forces, the President also acts
as the leader of the countrys police forces, under the mandate of Section 17, Article VII of the
Constitution, which provides that, "The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be faithfully executed." x x x

xxx

x x x But as a civilian agency of the government, the police, through the NAPOLCOM,
properly comes within, and is subject to, the exercise by the President of the power of
executive control.

iii. The provincial governor does not possess the same calling-out powers as the
President

Given the foregoing, respondent provincial governor 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 x x x. (Kulayan v. Tan, G.R. No. 187298, July 03, 2012)

Power to transfer appropriations: Constitutional requisites for a valid transfer

of appropriated funds: 1) law authorizing the transfer; 2) savings; and 3) transfer is
to augment an item in the general appropriations law for their respective offices.

The transfer of appropriated funds, to be valid under Section 25(5), must be made upon
a concurrence of the following requisites, namely:

19 | P a g e
 (1) There is a law authorizing the President, the President of the Senate, the Speaker of
the House of Representatives, the Chief Justice of the Supreme Court, and the heads of the
Constitutional Commissions to transfer funds within their respective offices;

(2) The funds to be transferred are savings generated from the appropriations for their
respective offices; and

(3) The purpose of the transfer is to augment an item in the general appropriations law
for their respective offices. (Araullo v. Aquino, G.R. No. 209287, July 1, 2014)

Why the transfer of funds under DAP is invalid

The transfer of funds under the Disbursement Acceleration Program (DAP) is

invalid for lack of a valid law authorizing the transfer. The GAAs of 2011 and 2012
authorized the transfers "to augment any item in this Act", and the effect was that
the 2011 and 2012 GAAs allowed the transfer of funds to augment any item in the
GAAs even if the item belonged to an office outside the Executive, contravention of
the Constitution.

[Section 59 of the 2011 GAA and Section 53 of the 2012 GAA] were textually unfaithful
to the Constitution for not carrying the phrase "for their respective offices" contained in Section
25(5). The impact of the phrase "for their respective offices" was to authorize only transfers of
funds within their offices (i.e., in the case of the President, the transfer was to an item of
appropriation within the Executive). The provisions carried a different phrase ("to augment any
item in this Act"), and the effect was that the 2011 and 2012 GAAs thereby literally allowed the
transfer of funds from savings to augment any item in the GAAs even if the item belonged to an
office outside the Executive. To that extent did the 2011 and 2012 GAAs contravene the
Constitution. At the very least, the aforequoted provisions cannot be used to claim authority to
transfer appropriations from the Executive to another branch, or to a constitutional commission.
(Araullo v. Aquino, G.R. No. 209287, July 1, 2014)

The transfer of funds under DAP is invalid because DAP funds were not
necessarily savings. Savings are realized only when the purpose for which the
funds had been allocated were already satisfied, or the need for such funds had
ceased to exist. Funds described as unreleased or unalloted are not necessarily
savings.

[T]he power to augment was to be used only when the purpose for which the funds had
been allocated were already satisfied, or the need for such funds had ceased to exist, for only
then could savings be properly realized. This interpretation prevents the Executive from unduly
transgressing Congress power of the purse.

The definition of "savings" in the GAAs, particularly for 2011, 2012 and 2013, reflected
this interpretation and made it operational, viz:

xxx

The three instances listed in the GAAs aforequoted definition were a sure indication that
savings could be generated only upon the purpose of the appropriation being fulfilled, or upon
the need for the appropriation being no longer existent.

xxx

The fact alone that the appropriations are unreleased or unalloted is a mere description
of the status of the items as unalloted or unreleased. They have not yet ripened into categories
of items from which savings can be generated. (Araullo v. Aquino, G.R. No. 209287, July 1,
2014)

The transfer of funds under DAP is invalid because DAP funds were not
transferred to augment existing items in the GAA. There must be an existing item,
project or activity, purpose or object of expenditure with an appropriation to which

20 | P a g e
savings may be transferred for the purpose of augmentation. The power to augment
cannot be used to fund non-existent items in the GAA.

The third requisite for a valid transfer of funds is that the purpose of the transfer should
be "to augment an item in the general appropriations law for the respective offices." The term
"augment" means to enlarge or increase in size, amount, or degree.

The GAAs for 2011, 2012 and 2013 set as a condition for augmentation that the
appropriation for the PAP item to be augmented must be deficient.

xxx

In other words, an appropriation for any PAP must first be determined to be deficient
before it could be augmented from savings. x x x

xxx

Upon careful review of the documents contained in the seven evidence packets, we
conclude that the "savings" pooled under the DAP were allocated to PAPs that were not covered
by any appropriations in the pertinent GAAs.

xxx

[T]he failure of the GAAs to set aside any amounts for an expense category sufficiently
indicated that Congress purposely did not see fit to fund, much less implement, the PAP
concerned. This indication becomes clearer when even the President himself did not
recommend in the NEP to fund the PAP. The consequence was that any PAP requiring
expenditure that did not receive any appropriation under the GAAs could only be a new PAP,
any funding for which would go beyond the authority laid down by Congress in enacting the
GAAs. That happened in some instances under the DAP. (Araullo v. Aquino, G.R. No. 209287,
July 1, 2014)

The power to augment cannot be used to fund non-existent provisions in the GAA.

xxx

[T]here must be an existing item, project or activity, purpose or object of expenditure

with an appropriation to which savings may be transferred for the purpose of augmentation.
Accordingly, so long as there is an item in the GAA for which Congress had set aside a specified
amount of public fund, savings may be transferred thereto for augmentation purposes. This
interpretation is consistent not only with the Constitution and the GAAs, but also with the
degree of flexibility allowed to the Executive during budget execution in responding to
unforeseeable contingencies.

xxx

[O]nly DAP projects found in the appropriate GAAs may be the subject of augmentation
by legally accumulated savings. (Araullo v. Aquino, G.R. No. 209287, February 3, 2015)

The transfer of funds under DAP is invalid for because some of the transfers
of appropriation were not made to their respective offices. Cross-border transfers,
whether as augmentation, or as aid, are prohibited.

[T]he phrase "respective offices" used in Section 25(5), supra, refers to the entire
Executive, with respect to the President; the Senate, with respect to the Senate President; the
House of Representatives, with respect to the Speaker; the Judiciary, with respect to the Chief
Justice; the Constitutional Commissions, with respect to their respective Chairpersons.

Did any cross-border transfers or augmentations transpire?

xxx

21 | P a g e
 The records show, indeed, that funds amounting to P143,700,000.00 and
P250,000,000.00 were transferred under the DAP respectively to the COA and the House of
Representatives. Those transfers of funds, which constituted cross-border augmentations for
being from the Executive to the COA and the House of Representatives x x x.

xxx

Regardless of the variant characterizations of the cross-border transfers of funds, the

plain text of Section 25(5), supra, disallowing cross border transfers was disobeyed. Cross-
border transfers, whether as augmentation, or as aid, were prohibited under Section 25(5),
supra. (Araullo v. Aquino, G.R. No. 209287, July 1, 2014)

DAP in Summary: Violation of Section 25(5), Article VI of the 1987

Constitution and the doctrine of separation of powers

[T]he following acts and practices under the Disbursement Acceleration Program,
National Budget Circular No. 541 and related executive issuances [are] unconstitutional for
being in violation of Section 25(5), Article VI of the 1987 Constitution and the doctrine of
separation of powers, namely:

(a) The withdrawal of unobligated allotments from the implementing agencies, and the
declaration of the withdrawn unobligated allotments and unreleased appropriations as savings
prior to the end of the fiscal year and without complying with the statutory definition of savings
contained in the General Appropriations Acts;

(b) The cross-border transfers of the savings of the Executive to augment the
appropriations of other offices outside the Executive; and

(c) The funding of projects, activities and programs that were not covered by any
appropriation in the General Appropriations Act. (Araullo v. Aquino, G.R. No. 209287, July 1,
2014)

Presidential power to create investigating bodies: pursuant to his duty to

faithfully execute the law, the President has the power to conduct investigations
and create an ad hoc investigating body.

The power of control is entirely different from the power to create public offices. The
former is inherent in the Executive, while the latter finds basis from either a valid delegation
from Congress, or his inherent duty to faithfully execute the laws.

The creation of the Philippine Truth Commission finds justification under Section 17,
Article VII of the Constitution, imposing upon the President the duty to ensure that the laws are
faithfully executed. The Presidents power to conduct investigations to aid him in ensuring the
faithful execution of laws in this case, fundamental laws on public accountability and
transparency is inherent in the Presidents powers as the Chief Executive. That the authority
of the President to conduct investigations and to create bodies to execute this power is not
explicitly mentioned in the Constitution or in statutes does not mean that he is bereft of such
authority. As explained in the landmark case of Marcos v. Manglapus, the powers of the
President cannot be said to be limited only to the specific powers enumerated in the
Constitution. (Biraogo v. Philippine Truth Commission, G.R. No. 192935, December 7, 2010)

Power to reorganize the government: The President does not have continuing
authority to reorganize the national government.

Is there a valid delegation of power from Congress, empowering the President to create
a public office? According to the OSG, the power to create a truth commission pursuant to the
above provision finds statutory basis under P.D. 1416, as amended by P.D. No. 1772. The said
law granted the President the continuing authority to reorganize the national government,
including the power to group, consolidate bureaus and agencies, to abolish offices, to transfer
functions, to create and classify functions, services and activities, transfer appropriations, and
to standardize salaries and materials.
22 | P a g e
 The Court, however, declines to recognize P.D. No. 1416 as a justification for the
President to create a public office. Said decree is already stale, anachronistic and inoperable.
P.D. No. 1416 was a delegation to then President Marcos of the authority to reorganize the
administrative structure of the national government including the power to create offices and
transfer appropriations pursuant to one of the purposes of the decree. Clearly, as it was only for
the purpose of providing manageability and resiliency during the interim, P.D. No. 1416, as
amended by P.D. No. 1772, became functus oficio upon the convening of the First Congress, as
expressly provided in Section 6, Article XVIII of the 1987 Constitution. (Biraogo v. Philippine
Truth Commission, G.R. No. 192935, December 7, 2010)

The Presidents pardoning power: The pardoning power of the President

cannot be limited by legislative action. This doctrine of non-diminution or non-
impairment of the Presidents power of pardon by acts of Congress was strongly
adhered to by the framers of the 1987 Constitution. Articles 36 and 41 of the
Revised Penal Code cannot abridge or diminish the exclusive power and prerogative
of the President to pardon persons convicted of violating penal statutes.

[T]he petition for disqualification filed by Risos-Vidal against former President Estrada,
docketed as SPA No. 13-211 (DC), was anchored on Section 40 of the LGC, in relation to
Section 12 of the OEC, that is, having been convicted of a crime punishable by imprisonment of
one year or more, and involving moral turpitude, former President Estrada must be disqualified
to run for and hold public elective office notwithstanding the fact that he is a grantee of a
pardon that includes a statement expressing "[h]e is hereby restored to his civil and political
rights." Risos-Vidal theorizes that former President Estrada is disqualified from running for
Mayor of Manila in the May 13, 2013 Elections, and remains disqualified to hold any local
elective post despite the presidential pardon extended to him in 2007 by former President
Arroyo for the reason that it (pardon) did not expressly provide for the remission of the penalty
of perpetual absolute disqualification, particularly the restoration of his (former President
Estrada) right to vote and be voted upon for public office. She invokes Articles 36 and 41 of the
Revised Penal Code as the foundations of her theory.

xxx

The pardoning power of the President cannot be limited by legislative action.

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, to wit:

Section 19. 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 a majority
of all the Members of the Congress.

xxxx

Section 5. No pardon, amnesty, parole, or suspension of sentence for violation of

election laws, rules, and regulations shall be granted by the President without the
favorable recommendation of the Commission.

It is apparent from the foregoing constitutional provisions that the only instances in
which the President may not extend pardon remain to be in: (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.

In Cristobal v. Labrador and Pelobello v. Palatino, x x x, the Court then unequivocally

declared that "subject to the limitations imposed by the Constitution, the pardoning power
cannot be restricted or controlled by legislative action." The Court reiterated this
pronouncement in Monsanto v. Factoran, Jr. thereby establishing that, under the present
Constitution, "a pardon, being a presidential prerogative, should not be circumscribed by
23 | P a g e
legislative action." Thus, 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 Presidents 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 x x x

xxx

The foregoing pronouncements solidify the thesis that Articles 36 and 41 of the Revised
Penal Code cannot, in any way, serve to abridge or diminish the exclusive power and
prerogative of the President to pardon persons convicted of violating penal statutes. (Risos-
Vidal v. Commission on Elections, G.R. No. 206666, January 21, 2015)

Effect of presidential pardon: A presidential pardon restoring to a person his

civil and political rights, includes the restoration of the right to seek public elective
office, which is a political right.

A close scrutiny of the text of the pardon extended to former President Estrada shows
that both the principal penalty of reclusion perpetua and its accessory penalties are included in
the pardon. The first sentence refers to the executive clemency extended to former President
Estrada who was convicted by the Sandiganbayan of plunder and imposed a penalty of
reclusion perpetua. The latter is the principal penalty pardoned which relieved him of
imprisonment. The sentence that followed, which states that "(h)e is hereby restored to his civil
and political rights," expressly remitted the accessory penalties that attached to the principal
penalty of reclusion perpetua. Hence, even if we apply Articles 36 and 41 of the Revised Penal
Code, it is indubitable from the text of the pardon that the accessory penalties of civil
interdiction and perpetual absolute disqualification were expressly remitted together with the
principal penalty of reclusion perpetua.

In this jurisdiction, the right to seek public elective office is recognized by law as falling
under the whole gamut of civil and political rights.

xxx

Thus, from both law and jurisprudence, the right to seek public elective office is
unequivocally considered as a political right. Hence, the Court reiterates its earlier statement
that the pardon granted to former President Estrada admits no other interpretation other than
to mean that, upon acceptance of the pardon granted to him, he regained his FULL civil and
political rights including the right to seek elective office.

xxx

The disqualification of former President Estrada under Section 40 of the LGC in relation
to Section 12 of the OEC was removed by his acceptance of the absolute pardon granted to
him. (Risos-Vidal v. Commission on Elections, G.R. No. 206666, January 21, 2015)

Presidential immunity from suit: A non-sitting President does not enjoy

immunity from suit, even for acts committed during the latters tenure. Hence,
former President Arroyo cannot use the presidential immunity from suit to shield
herself from judicial scrutiny, within the context of amparo proceedings, to
determine if she was responsible or accountable for the abduction of a person.

[T]here is no determination of administrative, civil or criminal liability

in amparo and habeas data proceedings, courts can only go as far as ascertaining responsibility
or accountability for the enforced disappearance or extrajudicial killing. As we held in Razon v.
Tagitis:

It does not determine guilt nor pinpoint criminal culpability for the
disappearance; rather, it determines responsibility, or at least accountability, for the
24 | P a g e
 enforced disappearance for purposes of imposing the appropriate remedies to address
the disappearance. Responsibility refers to the extent the actors have been established
by substantial evidence to have participated in whatever way, by action or omission, in
an enforced disappearance, as a measure of the remedies this Court shall craft, among
them, the directive to file the appropriate criminal and civil cases against the responsible
parties in the proper courts. Accountability, on the other hand, refers to the measure
of remedies that should be addressed to those who exhibited involvement in the
enforced disappearance without bringing the level of their complicity to the
level of responsibility defined above; or who are imputed with knowledge relating
to the enforced disappearance and who carry the burden of disclosure; or those
who carry, but have failed to discharge, the burden of extraordinary diligence
in the investigation of the enforced disappearance. In all these cases, the issuance of
the Writ of Amparo is justified by our primary goal of addressing the disappearance, so
that the life of the victim is preserved and his liberty and security are restored.
(Emphasis supplied.)

xxx

In Estrada v. Desierto, we clarified the doctrine that a non-sitting President does not
enjoy immunity from suit, even for acts committed during the latters tenure. x x x

xxx

Further, in our Resolution in Estrada v. Desierto, we reiterated that the presidential

immunity from suit exists only in concurrence with the presidents incumbency:

x x x We held that given the intent of the 1987 Constitution to breathe

life to the policy that a public office is a public trust, the petitioner, as a non-
sitting President, cannot claim executive immunity for his alleged criminal
acts committed while a sitting President. x x x

Applying the foregoing rationale to the case at bar, it is clear that former President Arroyo
cannot use the presidential immunity from suit to shield herself from judicial scrutiny that would
assess whether, within the context of amparo proceedings, she was responsible or accountable for
the abduction of Rodriguez. (Rodriguez v. Macapagal-Arroyo, G.R. No. 193160, November 15,
2011)

THE JUDICIARY

Rule-making power: The 1987 Constitution took away the power of Congress
to repeal, alter, or supplement rules concerning pleading, practice and procedure.
The power to promulgate rules of pleading, practice and procedure is no longer
shared by the Supreme Court with Congress, more so with the Executive.

The 1987 Constitution textually altered the power-sharing scheme under the previous
charters by deleting in Section 5(5) of Article VIII Congress subsidiary and corrective
power. This glaring and fundamental omission led the Court to observe in Echegaray v.
Secretary of Justice that this Courts power to promulgate judicial rules is no longer shared by
this Court with Congress:

xxx

The rule making power of this Court was expanded . This Court for the first time
was given the power to promulgate rules concerning the protection and enforcement of
constitutional rights. The Court was also granted for the first time the power to
disapprove rules of procedure of special courts and quasi-judicial bodies. But most
importantly, the 1987 Constitution took away the power of Congress to repeal, alter, or
supplement rules concerning pleading, practice and procedure . In fine, the power to
promulgate rules of pleading, practice and procedure is no longer shared by this
Court with Congress, more so with the Executive. x x x x (Italicization in the original;
boldfacing supplied)

Any lingering doubt on the import of the textual evolution of Section 5(5) should be put
to rest with our recent En Banc ruling denying a request by the Government Service Insurance
25 | P a g e
System (GSIS) for exemption from payment of legal fees based on Section 39 of its Charter,
Republic Act No. 8291, exempting GSIS from all taxes, assessments, fees, charges or dues of all
kinds. Reaffirming Echegarays construction of Section 5(5), the Court described its exclusive
power to promulgate rules on pleading, practice and procedure as one of the safeguards of this
Courts institutional independence:

[T]he payment of legal fees is a vital component of the rules promulgated

by this Court concerning pleading, practice and procedure, it cannot be validly
annulled, changed or modified by Congress. As one of the safeguards of this
Courts institutional independence, the power to promulgate rules of pleading,
practice and procedure is now the Courts exclusive domain. x x x (Emphasis
supplied)

(Baguio Market Vendors Multi-Purpose Cooperative v. Cabato-Cortes, G.R. No. 165922,

February 26, 2010)

Congress cannot grant exemptions from payment of legal fees. First, payment
of legal fees is part of the rule-making power of the Supreme Court, which is no
longer shared with Congress. Second, any grant by Congress of exemptions from
payment of legal fees will impair the Judiciarys fiscal autonomy and erode its
independence.

PHCCI [Perpetual Help Community Cooperative] contends that as a cooperative it enjoys

the exemption [from the payment of court and sheriffs fees] provided for under Section 6,
Article 61 of Republic Act No. 9520 x x x.

xxx

On 11 February 2010, however, the Supreme Court En Banc issued a Resolution in A.M.
No. 08-2-01-0, which denied the petition of the Government Service Insurance System (GSIS)
for recognition of its exemption from payment of legal fees imposed under Section 22 of Rule
141 of the Rules of Court. In the GSIS case, the Court citing Echegaray v. Secretary of
Justice, stressed that the 1987 Constitution molded an even stronger and more independent
judiciary; took away the power of Congress to repeal, alter, or supplement rules concerning
pleading, practice and procedure; and held that the power to promulgate these Rules is no
longer shared by the Court with Congress, more so, with the Executive, thus:

Since the payment of legal fees is a vital component of the rules promulgated by
this Court concerning pleading, practice and procedure, it cannot be validly annulled,
changed or modified by Congress. As one of the safeguards of this Courts institutional
independence, the power to promulgate rules of pleading, practice and procedure is now
the Courts exclusive domain. That power is no longer shared by this Court with
Congress, much less with the Executive.

xxxx

xxx

Congress could not have carved out an exemption for the GSIS from the
payment of legal fees without transgressing another equally important institutional
safeguard of the Courts independence - fiscal autonomy. Fiscal autonomy recognizes the
power and authority of the Court to levy, assess and collect fees, including legal
fees. Moreover, legal fees under Rule 141 have two basic components, the Judiciary
Development Fund (JDF) and the Special Allowance for the Judiciary Fund (SAJF). The
laws which established the JDF and SAJF expressly declare the identical purpose of these
funds to guarantee the independence of the Judiciary as mandated by the Constitution
and public policy. Legal fees therefore do not only constitute a vital source of the Courts
financial resources but also comprise an essential element of the Courts fiscal
independence. Any exemption from the payment of legal fees granted by Congress to
government-owned or controlled corporations and local government units will necessarily
reduce the JDF and the SAJF. Undoubtedly, such situation is constitutionally infirm for it
impairs the Courts guaranteed fiscal autonomy and erodes its independence.

26 | P a g e
 (Re: in the Matter of Clarification of Exemption from Payment of all Court and Sheriff's
Fees of Cooperative etc., A.M. No. 12-2-03-0, March 13, 2012)

The execution of a decision is but an integral part of the adjudicative function

of the Supreme Court. Thus, in the execution of its continuing mandamus against
agencies of the Executive Department, the Supreme Court may order such agencies
to perform their assigned tasks within specific time frames or completion periods.
The imposition of such time frames or completion periods is not an encroachment
over the powers and functions of the Executive Branch.

On December 18, 2008, this Court rendered a Decision in G.R. Nos. 171947-48 ordering
petitioners to clean up, rehabilitate and preserve Manila Bay in their different capacities. The
fallo reads:

WHEREFORE, the petition is DENIED. The September 28, 2005 Decision of the CA
in CA-G.R. CV No. 76528 and SP No. 74944 and the September 13, 2002 Decision of the
RTC in Civil Case No. 1851-99 are AFFIRMED but with MODIFICATIONS in view of
subsequent developments or supervening events in the case. The fallo of the RTC Decision
shall now read:
WHEREFORE, judgment is hereby rendered ordering the abovenamed defendant-
government agencies to clean up, rehabilitate, and preserve Manila Bay, and restore and
maintain its waters to SB level (Class B sea waters per Water Classification Tables under
DENR Administrative Order No. 34 [1990]) to make them fit for swimming, skin-diving, and
other forms of contact recreation.

xxxx

The case is now in the execution phase of the final and executory December 18, 2008
Decision. The Manila Bay Advisory Committee was created [by the Supreme Court] to receive
and evaluate the quarterly progressive reports on the activities undertaken by the agencies in
accordance with said decision and to monitor the execution phase.

In the absence of specific completion periods, the Committee recommended that time
frames be set for the agencies to perform their assigned tasks. This may be viewed as an
encroachment over the powers and functions of the Executive Branch headed by the President
of the Philippines.

This view is misplaced.

The issuance of subsequent resolutions by the Court is simply an exercise of judicial

power under Art. VIII of the Constitution, because the execution of the Decision is but an
integral part of the adjudicative function of the Court. None of the agencies ever questioned the
power of the Court to implement the December 18, 2008 Decision nor has any of them raised
the alleged encroachment by the Court over executive functions.

While additional activities are required of the agencies like submission of plans of action,
data or status reports, these directives are but part and parcel of the execution stage of a final
decision under Rule 39 of the Rules of Court. Section 47 of Rule 39 reads:

Section 47. Effect of judgments or final orders.The effect of a judgment or

final order rendered by a court of the Philippines, having jurisdiction to pronounce the
judgment or final order, may be as follows:
xxxx
(c) In any other litigation between the same parties of their successors in
interest, that only is deemed to have been adjudged in a former judgment or final order
which appears upon its face to have been so adjudged, or which was actually and
necessarily included therein or necessary thereto. (Emphasis supplied.)

It is clear that the final judgment includes not only what appears upon its face to have
been so adjudged but also those matters "actually and necessarily included therein or necessary
thereto." Certainly, any activity that is needed to fully implement a final judgment is necessarily
encompassed by said judgment.

27 | P a g e
 Moreover, the submission of periodic reports is sanctioned by Secs. 7 and 8, Rule 8 of
the Rules of Procedure for Environmental cases:

Sec. 7. Judgment.If warranted, the court shall grant the privilege of the
writ of continuing mandamus requiring respondent to perform an act or series of
acts until the judgment is fully satisfied and to grant such other reliefs as may be
warranted resulting from the wrongful or illegal acts of the respondent. The court
shall require the respondent to submit periodic reports detailing the progress and
execution of the judgment, and the court may, by itself or through a commissioner
or the appropriate government agency, evaluate and monitor compliance. The
petitioner may submit its comments or observations on the execution of the
judgment.
Sec. 8. Return of the writ.The periodic reports submitted by the
respondent detailing compliance with the judgment shall be contained in partial
returns of the writ. Upon full satisfaction of the judgment, a final return of the writ
shall be made to the court by the respondent. If the court finds that the judgment
has been fully implemented, the satisfaction of judgment shall be entered in the
court docket. (Emphasis supplied.)

With the final and executory judgment in MMDA, the writ of continuing mandamus
issued in MMDA means that until petitioner-agencies have shown full compliance with the
Courts orders, the Court exercises continuing jurisdiction over them until full execution of the
judgment. (Metro Manila Development Authority [MMDA] v. Concerned Residents of Manila Bay,
G.R. Nos. 171947-48, February 15, 2011)

Court injunctions against Ombudsman investigations: The prohibition under

Section 14, RA 6770 against courts other than the Supreme Court from issuing
provisional injunctive writs to enjoin investigations conducted by the Office of the
Ombudsman encroaches upon the Supreme Courts rule-making authority and
should be considered ineffective, pending deliberation on whether or not the
Supreme Court should adopt such prohibition.

The Ombudsmans argument against the CAs lack of subject matter jurisdiction over the
main petition, and her corollary prayer for its dismissal, is based on her interpretation of Section
14, RA 6770, or the Ombudsman Act, which reads in full:

Section 14. Restrictions. No writ of injunction shall be issued by any court to

delay an investigation being conducted by the Ombudsman under this Act, unless there
is a prima facie evidence that the subject matter of the investigation is outside the
jurisdiction of the Office of the Ombudsman.

No court shall hear any appeal or application for remedy against the decision or
findings of the Ombudsman, except the Supreme Court, on pure question of law.

xxxx

The first paragraph of Section 14, RA 6770 is a prohibition against any court (except the
Supreme Court119) from issuing a writ of injunction to delay an investigation being conducted
by the Office of the Ombudsman. Xxxx

xxx [T]he Court rules that when Congress passed the first paragraph of Section 14, RA
6770 and, in so doing, took away from the courts their power to issue a TRO and/or
WPI to enjoin an investigation conducted by the Ombudsman, it encroached upon
this Courts constitutional rule-making authority. Clearly, these issuances, which are, by
nature, provisional reliefs and auxiliary writs created under the provisions of the Rules of Court,
are matters of procedure which belong exclusively within the province of this Court. Rule 58 of
the Rules of Court did not create, define, and regulate a right but merely prescribed the means
of implementing an existing right220 since it only provided for temporary reliefs to preserve the
applicants right in esse which is threatened to be violated during the course of a pending
litigation.

xxxx

28 | P a g e
 xxx When Congress creates a court and delimits its jurisdiction, the procedure for which
its jurisdiction is exercised is fixed by the Court through the rules it promulgates. The first
paragraph of Section 14, RA 6770 is not a jurisdiction-vesting provision, as the Ombudsman
misconceives, because it does not define, prescribe, and apportion the subject matter
jurisdiction of courts to act on certiorari cases; the certiorari jurisdiction of courts, particularly
the CA, stands under the relevant sections of BP 129 which were not shown to have been
repealed. Instead, through this provision, Congress interfered with a provisional remedy that
was created by this Court under its duly promulgated rules of procedure, which utility is both
integral and inherent to every courts exercise of judicial power. Without the Courts consent to
the proscription, as may be manifested by an adoption of the same as part of the rules of
procedure through an administrative circular issued therefor, there thus, stands to be a violation
of the separation of powers principle.

In addition, it should be pointed out that the breach of Congress in prohibiting

provisional injunctions, such as in the first paragraph of Section 14, RA 6770, does not only
undermine the constitutional allocation of powers; it also practically dilutes a
courts ability to carry out its functions. This is so since a particular case can easily be
mooted by supervening events if no provisional injunctive relief is extended while the court is
hearing the same. Accordingly, the courts acquired jurisdiction, through which it exercises its
judicial power, is rendered nugatory. Indeed, the force of judicial power, especially under the
present Constitution, cannot be enervated due to a courts inability to regulate what occurs
during a proceedings course. As earlier intimated, when jurisdiction over the subject matter is
accorded by law and has been acquired by a court, its exercise thereof should be unclipped. To
give true meaning to the judicial power contemplated by the Framers of our
Constitution, the Courts duly promulgated rules of procedure should therefore
remain unabridged, this, even by statute. Truth be told, the policy against
provisional injunctive writs in whatever variant should only subsist under rules of
procedure duly promulgated by the Court given its sole prerogative over the same.

xxxx

xxx Thus, pending deliberation on whether or not to adopt the same, the
Court, under its sole prerogative and authority over all matters of procedure, deems
it proper to declare as ineffective the prohibition against courts other than the
Supreme Court from issuing provisional injunctive writs to enjoin investigations
conducted by the Office of the Ombudsman, until it is adopted as part of the rules of
procedure through an administrative circular duly issued therefor.

Hence, with Congress interfering with matters of procedure (through passing the first
paragraph of Section 14, RA 6770) without the Courts consent thereto, it remains that the CA
had the authority to issue the questioned injunctive writs enjoining the implementation of the
preventive suspension order against Binay, Jr. At the risk of belaboring the point, these
issuances were merely ancillary to the exercise of the CAs certiorari jurisdiction conferred to it
under Section 9 (1), Chapter I of BP 129, as amended, and which it had already acquired over
the main CA-G.R. SP No. 139453 case. (Carpio-Morales v. Court of Appeals, G.R. Nos. 217126-
27, November 10, 2015)

JUDICIAL AND BAR COUNCIL

Judicial and Bar Council: There should be only one (1) representative from
Congress.

There should be only one (1) representative from Congress in the Judicial and Bar
Council: The unmistakable tenor of Article VIII, Section 8(1) was to have each ex-officio
member as representing one co-equal branch of government. (Chavez v. Judicial and Bar
Council, G.R. No. 202242, July 17, 2012)

29 | P a g e
 JBCs policy of requiring five years of service as judges of first-level courts
before they can qualify as applicant to second-level courts is constitutional. The JBC
has the authority to set the standards/criteria in choosing its nominees for every
vacancy in the judiciary, subject only to the minimum qualifications required by the
Constitution and law for every position.

The crux of this petition is whether or not the policy of JBC requiring five years of
service as judges of first-level courts before they can qualify as applicant to second-level courts
is constitutional.

xxx

As an offspring of the 1987 Constitution, the JBC is mandated to recommend appointees

to the judiciary and only those nominated by the JBC in a list officially transmitted to the
President may be appointed by the latter as justice or judge in the judiciary. x x x While the
1987 Constitution has provided the qualifications of members of the judiciary, this does not
preclude the JBC from having its own set of rules and procedures and providing policies to
effectively ensure its mandate.

The functions of searching, screening, and selecting are necessary and incidental to the
JBCs principal function of choosing and recommending nominees for vacancies in the judiciary
for appointment by the President. x x x In carrying out its main function, the JBC has the
authority to set the standards/criteria in choosing its nominees for every vacancy in the
judiciary, subject only to the minimum qualifications required by the Constitution and law for
every position. The search for these long held qualities necessarily requires a degree of
flexibility in order to determine who is most fit among the applicants. Thus, the JBC has
sufficient but not unbridled license to act in performing its duties.

[T]he JBC had to establish a set of uniform criteria in order to ascertain whether an
applicant meets the minimum constitutional qualifications and possesses the qualities expected
of him and his office. Thus, the adoption of the five-year requirement policy applied by JBC to
the petitioners case is necessary and incidental to the function conferred by the Constitution to
the JBC.

xxx

As the constitutional body granted with the power of searching for, screening, and
selecting applicants relative to recommending appointees to the Judiciary, the JBC has the
authority to determine how best to perform such constitutional mandate. Pursuant to this
authority, the JBC issues various policies setting forth the guidelines to be observed in the
evaluation of applicants, and formulates rules and guidelines in order to ensure that the rules
are updated to respond to existing circumstances. Its discretion is freed from legislative,
executive or judicial intervention to ensure that the JBC is shielded from any outside pressure
and improper influence. Limiting qualified applicants in this case to those judges with five years
of experience was an exercise of discretion by the JBC. (Villanueva v. Judicial and Bar Council,
G.R. No. 211833, April 7, 2015)

COMMISSION ON AUDIT

The COA is endowed with latitude to determine, prevent, and disallow

irregular, unnecessary, excessive, extravagant, or unconscionable expenditures of
government funds. The Court has accorded not only respect but also finality to COA
findings especially when their decisions are not tainted with grave abuse of
discretion.

The COA is endowed with latitude to determine, prevent, and disallow irregular,
unnecessary, excessive, extravagant, or unconscionable expenditures of government funds. It
has the power to ascertain whether public funds were utilized for the purpose for which they
had been intended by law. The Constitution has made the COA "the guardian of public funds,
vesting it with broad powers over all accounts pertaining to government revenue and
30 | P a g e
expenditures and the uses of public funds and property, including the exclusive authority to
define the scope of its audit and examination, establish the techniques and methods for such
review, and promulgate accounting and auditing rules and regulations." Thus, the COA is
generally accorded complete discretion in the exercise of its constitutional duty and
responsibility to examine and audit expenditures of public funds, particularly those which are
perceptibly beyond what is sanctioned by law.

x x x The Court has accorded not only respect but also finality to their findings especially
when their decisions are not tainted with unfairness or arbitrariness that would amount to grave
abuse of discretion. Only when the COA acted without or in excess of jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction, may this Court entertain and
grant a petition for certiorari brought to assail its actions. (Technical Education and Skills
Development Authority v. Commission on Audit, G.R. No. 196418, February 10, 2015)

COA has primary jurisdiction over money claims against government agencies
and instrumentalities, including local governments. The COA and not the RTC has
primary jurisdiction to pass upon a money claim against a local government unit.

[R]espondent seeks to enforce a claim for sums of money allegedly owed by petitioner,
a local government unit.

Under Commonwealth Act No. 327, as amended by Section 26 of Presidential Decree

No. 1445, it is the COA which has primary jurisdiction over money claims against government
agencies and instrumentalities. x x x

Pursuant to its rule-making authority conferred by the 1987 Constitution and existing
laws, the COA promulgated the 2009 Revised Rules of Procedure of the Commission on Audit.
Rule II, Section 1 specifically enumerated those matters falling under COAs exclusive
jurisdiction, which include "money claims due from or owing to any government agency." Rule
VIII, Section 1 further provides:
Section 1. Original Jurisdiction - The Commission Proper shall have original jurisdiction
over:

a) money claim against the Government; b) request for concurrence in the hiring of legal
retainers by government agency; c) write off of unliquidated cash advances and dormant
accounts receivable in amounts exceeding one million pesos (P 1,000,000.00); d) request for
relief from accountability for loses due to acts of man, i.e. theft, robbery, arson, etc, in amounts
in excess of Five Million pesos (P 5,000,000.00).

In Euro-Med Laboratories Phil., Inc. v. Province of Batangas, we ruled that it is the COA
and not the RTC which has primary jurisdiction to pass upon petitioners money claim against
respondent local government unit. Such jurisdiction may not be waived by the parties failure to
argue the issue nor active participation in the proceedings. Thus:

This case is one over which the doctrine of primary jurisdiction clearly held sway for
although petitioners collection suit for P487,662.80 was within the jurisdiction of the RTC, the
circumstances surrounding petitioners claim brought it clearly within the ambit of the COAs
jurisdiction.

First, petitioner was seeking the enforcement of a claim for a certain amount of money
against a local government unit. This brought the case within the COAs domain to pass upon
money claims against the government or any subdivision thereof under Section 26 of the
Government Auditing Code of the Philippines:

The authority and powers of the Commission [on Audit] shall extend to and
comprehend all matters relating to x x x the examination, audit, and settlement of all debts
and claims of any sort due from or owing to the Government or any of its subdivisions,
agencies, and instrumentalities. x x x.

(Province of Aklan v. Jody King Construction and Development Corp., G.R. Nos. 197592
& 20262, November 27, 2013)

31 | P a g e
 COAs authority over money claims is limited to liquidated claims, or those
determined or readily determinable from vouchers, invoices, and such other papers
within reach of accounting officers.

The scope of the COAs authority to take cognizance of claims is circumscribed,

however, by an unbroken line of cases holding statutes of similar import to mean only
liquidated claims, or those determined or readily determinable from vouchers, invoices, and
such other papers within reach of accounting officers. Petitioners claim was for a fixed amount
and although respondent took issue with the accuracy of petitioners summation of its
accountabilities, the amount thereof was readily determinable from the receipts, invoices and
other documents. Thus, the claim was well within the COAs jurisdiction under the Government
Auditing Code of the Philippines. (Province of Aklan v. Jody King Construction and Development
Corp., G.R. Nos. 197592 & 20262, November 27, 2013)

When money claims need not be filed first with COA: Money claims against
the government need not be filed with COA first, and may be filed directly with the
courts directly, if the case falls under any of the exceptions to the rule on
exhaustion of administrative remedies, such as when there is unreasonable delay or
official inaction that will irretrievably prejudice the complainant, or where the
question involved is purely legal.

Firstly, petitioners claim that the Complaint filed by respondent before the Regional Trial
Court was done without exhausting administrative remedies. Petitioners aver that respondent
should have first filed a claim before the Commission on Audit (COA) before going to the courts.
However, it has been established that the doctrine of exhaustion of administrative remedies and
the doctrine of primary jurisdiction are not ironclad rules. In Republic of the Philippines v.
Lacap, this Court enumerated the numerous exceptions to these rules, namely: (a) where there
is estoppel on the part of the party invoking the doctrine; (b) where the challenged
administrative act is patently illegal, amounting to lack of jurisdiction; (c) where there is
unreasonable delay or official inaction that will irretrievably prejudice the complainant; (d)
where the amount involved is relatively so small as to make the rule impractical and oppressive;
(e) where the question involved is purely legal and will ultimately have to be decided by the
courts of justice; (f) where judicial intervention is urgent; (g) where the application of the
doctrine may cause great and irreparable damage; (h) where the controverted acts violate due
process; (i) where the issue of non-exhaustion of administrative remedies has been rendered
moot; (j) where there is no other plain, speedy and adequate remedy; (k) where strong public
interest is involved; and (l) in quo warranto proceedings. In the present case, conditions (c) and
(e) are present.

The government project contracted out to respondent was completed almost two
decades ago. To delay the proceedings by remanding the case to the relevant government
office or agency will definitely prejudice respondent. More importantly, the issues in the present
case involve the validity and the enforceability of the Contract of Agreement entered into by the
parties. These are questions purely of law and clearly beyond the expertise of the Commission
on Audit or the DPWH. x x x

xxx

The government project involved in this case, the construction of a dike, was completed
way back on 9 July 1992. For almost two decades, the public and the government benefitted
from the work done by respondent. Thus, the Court of Appeals was correct in applying Eslao to
the present case. In Eslao, this Court stated:

...the Court finds that the contractor should be duly compensated for services rendered,
which were for the benefit of the general public. To deny the payment to the
contractor of the two buildings which are almost fully completed and
presently occupied by the university would be to allow the government to
unjustly enrich itself at the expense of another. Justice and equity demand
compensation on the basis of quantum meruit. (Emphasis supplied.)

(Vigilar v. Aquino, G.R. No. 180388, January 18, 2011)

32 | P a g e
 THE OMBUDSMAN

[T]he concept of Ombudsmans independence covers three (3) things:

First: creation by the Constitution, which means that the office cannot be
abolished, nor its constitutionally specified functions and privileges, be removed, altered, or
modified by law, unless the Constitution itself allows, or an amendment thereto is made;

Second: fiscal autonomy, which means that the office may not be obstructed from
[its] freedom to use or dispose of [its] funds for purposes germane to [its] functions;168 hence,
its budget cannot be strategically decreased by officials of the political branches of government
so as to impair said functions; and

Third: insulation from executive supervision and control, which means that
those within the ranks of the office can only be disciplined by an internal authority.

Evidently, all three aspects of independence intend to protect the Office of the
Ombudsman from political harassment and pressure, so as to free it from the insidious
tentacles of politics.

That being the case, the concept of Ombudsman independence cannot be invoked as
basis to insulate the Ombudsman from judicial power constitutionally vested unto the courts.
(Carpio-Morales v. Court of Appeals, G.R. Nos. 217126-27, November 10, 2015)

NATIONAL ECONOMY

The Constitutional requirements for a valid service contract for the large-
scale exploration and development of minerals, petroleum and other mineral oils are
the following: 1) the service contract shall be crafted in accordance with a general
law that will set standard or uniform terms, conditions; 2) the President shall be the
signatory for the government; and 3) within 30 days, the President shall report it to
Congress

Petitioners maintain that [Service Contract]-46 [which allowed the exploration,

development, and exploitation of petroleum resources within Taon Strait, a narrow passage of
water situated between the islands of Negros and Cebu] transgresses the Jura Regalia Provision
or paragraph 1, Section 2, Article XII of the 1987 Constitution because [Japan Petroleum
Exploration Co., (JAPEX)] is 100% Japanese-owned. Furthermore, the FIDEC asserts that SC-46
cannot be considered as a technical and financial assistance agreement validly executed under
paragraph 4 of the same provision. x x x

The petitioners insist that SC-46 is null and void for having violated Section 2, Article XII
of the 1987 Constitution, which reads as follows:

Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and
other natural resources are owned by the State. With the exception of agricultural lands, all other
natural resources shall not be alienated. The exploration, development, and utilization of natural
resources shall be under the full control and supervision of the State. The State may directly
undertake such activities, or it may enter into co-production, joint venture, or production-sharing
agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose
capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five
years, renewable for not more than twenty-five years, and under such terms and conditions as may
be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses
other than the development of water power, beneficial use may be the measure and limit of the
grant.

The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea,
and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. The
Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as
cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays,
and lagoons.

33 | P a g e
 The President may enter into agreements with foreign-owned corporations involving either
technical or financial assistance for large-scale exploration, development, and utilization of minerals,
petroleum, and other mineral oils according to the general terms and conditions provided by law,
based on real contributions to the economic growth and general welfare of the country. In such
agreements, the State shall promote the development and use of local scientific and technical
resources.

The President shall notify the Congress of every contract entered into in accordance with
this provision, within thirty days from its execution. (Emphases ours.)

This Court has previously settled the issue of whether service contracts are still allowed
under the 1987 Constitution. In La Bugal, we held that the deletion of the words "service
contracts" in the 1987 Constitution did not amount to a ban on them per se. x x x

xxx

[T]he phrase agreements involving either technical or financial assistance, referred to in

paragraph 4, are in fact service contracts. But unlike those of the 1973 variety, the new ones
are between foreign corporations acting as contractors on the one hand; and on the other, the
government as principal or "owner" of the works. In the new service contracts, the foreign
contractors provide capital, technology and technical know-how, and managerial expertise in
the creation and operation of large-scale mining/extractive enterprises; and the government,
through its agencies (DENR, MGB), actively exercises control and supervision over the entire
operation.

In summarizing the matters discussed in the ConCom, we established that paragraph 4,

with the safeguards in place, is the exception to paragraph 1, Section 2 of Article XII. The
following are the safeguards this Court enumerated in La Bugal:

Such service contracts may be entered into only with respect to minerals, petroleum and
other mineral oils. The grant thereof is subject to several safeguards, among which are these
requirements:

(1) The service contract shall be crafted in accordance with a general law that will set
standard or uniform terms, conditions and requirements, presumably to attain a certain
uniformity in provisions and avoid the possible insertion of terms disadvantageous to the
country.

(2) The President shall be the signatory for the government because, supposedly before
an agreement is presented to the President for signature, it will have been vetted several times
over at different levels to ensure that it conforms to law and can withstand public scrutiny.

(3) Within thirty days of the executed agreement, the President shall report it to
Congress to give that branch of government an opportunity to look over the agreement and
interpose timely objections, if any.

Adhering to the aforementioned guidelines, this Court finds that SC-46 is indeed null and
void for noncompliance with the requirements of the 1987 Constitution. (Resident Marine
Mammals of the Protected Seascape of Taon Strait v. Secretary Reyes, G.R. No. 180771, April
21, 2015)

Capital for purposes of determining Filipino ownership of a public utility

refers only to shares of stock that can vote in the election of directors. The intent of
the framers of the Constitution is to place in the hands of Filipino citizens the
control and management of public utilities. The right to vote in the election of
directors, coupled with full beneficial ownership of stocks, translates to effective
control of a corporation.

For a corporation to be granted authority to operate a public utility, at least 60 percent

of its "capital" must be owned by Filipino citizens. Considering that common shares have voting
rights which translate to control, as opposed to preferred shares which usually have no voting
rights, the term "capital" in Section 11, Article XII of the Constitution refers only to common
shares.

34 | P a g e
 However, if the preferred shares also have the right to vote in the election of directors,
then the term "capital" shall include such preferred shares, because the right to participate in
the control or management of the corporation is exercised through the right to vote in the
election of directors. In short, the term "capital" in Section 11, Article XII of the Constitution
refers only to shares of stock that can vote in the election of directors.

This interpretation is consistent with the intent of the framers of the Constitution to
place in the hands of Filipino citizens the control and management of public utilities. The right
to vote in the election of directors, coupled with full beneficial ownership of stocks, translates to
effective control of a corporation.

xxx

The legal and beneficial ownership of 60 percent of the outstanding capital stock must
rest in the hands of Filipinos in accordance with the constitutional mandate. Full beneficial
ownership of 60 percent of the outstanding capital stock, coupled with 60 percent of the voting
rights, is constitutionally required for the States grant of authority to operate a public utility.
The undisputed fact that the PLDT preferred shares, 99.44% owned by Filipinos, are non-voting
and earn only 1/70 of the dividends that PLDT common shares earn, grossly violates the
constitutional requirement of 60 percent Filipino control and Filipino beneficial ownership of a
public utility. (Gamboa v. Teves, G.R. No. 176579, June 28, 2011)

Where the 60-40 Filipino-foreign equity ownership is in doubt, the

Grandfather Rule will apply. Thus, the combined totals in the Investing Corporation
and the Investee Corporation must be traced (i.e., "grandfathered") to determine
the total percentage of Filipino ownership. The ultimate Filipino ownership of the
shares must first be traced to the level of the Investing Corporation and added to
the shares directly owned in the Investee Corporation.

"Corporate layering" is admittedly allowed by the FIA; but if it is used to circumvent the
Constitution and pertinent laws, then it becomes illegal. x x x

xxx

x x x Sec. 2 [of Art. XII of the 1987 Constitution] which focuses on the State entering
into different types of agreements for the exploration, development, and utilization of natural
resources with entities who are deemed Filipino due to 60 percent ownership of capital is
pertinent to this case, since the issues are centered on the utilization of our countrys natural
resources or specifically, mining. Thus, there is a need to ascertain the nationality of petitioners
since, as the Constitution so provides, such agreements are only allowed corporations or
associations "at least 60 percent of such capital is owned by such citizens."

x x x It is apparent that it is the intention of the framers of the Constitution to apply the
grandfather rule in cases where corporate layering is present.

xxx

Under the above-quoted SEC Rules, there are two cases in determining the nationality of
the Investee Corporation. The first case is the liberal rule, later coined by the SEC as the
Control Test in its 30 May 1990 Opinion, and pertains to the portion in said Paragraph 7 of the
1967 SEC Rules which states, (s)hares belonging to corporations or partnerships at least 60%
of the capital of which is owned by Filipino citizens shall be considered as of Philippine
nationality. Under the liberal Control Test, there is no need to further trace the ownership of
the 60% (or more) Filipino stockholdings of the Investing Corporation since a corporation which
is at least 60% Filipino-owned is considered as Filipino.

The second case is the Strict Rule or the Grandfather Rule Proper and pertains to the
portion in said Paragraph 7 of the 1967 SEC Rules which states, "but if the percentage of
Filipino ownership in the corporation or partnership is less than 60%, only the number of shares
corresponding to such percentage shall be counted as of Philippine nationality." Under the Strict
Rule or Grandfather Rule Proper, the combined totals in the Investing Corporation and the
Investee Corporation must be traced (i.e., "grandfathered") to determine the total percentage
of Filipino ownership.

35 | P a g e
 Moreover, the ultimate Filipino ownership of the shares must first be traced to the level
of the Investing Corporation and added to the shares directly owned in the Investee
Corporation x x x.

xxxx

In other words, based on the said SEC Rule and DOJ Opinion, the Grandfather Rule or
the second part of the SEC Rule applies only when the 60-40 Filipino-foreign equity ownership
is in doubt (i.e., in cases where the joint venture corporation with Filipino and foreign
stockholders with less than 60% Filipino stockholdings [or 59%] invests in other joint venture
corporation which is either 60-40% Filipino-alien or the 59% less Filipino). Stated differently,
where the 60-40 Filipino- foreign equity ownership is not in doubt, the Grandfather Rule will not
apply.

After a scrutiny of the evidence extant on record, the Court finds that this case calls for
the application of the grandfather rule since, as ruled by the POA and affirmed by the OP, doubt
prevails and persists in the corporate ownership of petitioners. Also, as found by the CA, doubt
is present in the 60-40 Filipino equity ownership of petitioners Narra, McArthur and Tesoro,
since their common investor, the 100% Canadian corporationMBMI, funded them. However,
petitioners also claim that there is "doubt" only when the stockholdings of Filipinos are less than
60%.

The assertion of petitioners that "doubt" only exists when the stockholdings are less
than 60% fails to convince this Court. DOJ Opinion No. 20, which petitioners quoted in their
petition, only made an example of an instance where "doubt" as to the ownership of the
corporation exists. It would be ludicrous to limit the application of the said word only to the
instances where the stockholdings of non-Filipino stockholders are more than 40% of the total
stockholdings in a corporation. The corporations interested in circumventing our laws would
clearly strive to have "60% Filipino Ownership" at face value. It would be senseless for these
applying corporations to state in their respective articles of incorporation that they have less
than 60% Filipino stockholders since the applications will be denied instantly. Thus, various
corporate schemes and layerings are utilized to circumvent the application of the Constitution.

Obviously, the instant case presents a situation which exhibits a scheme employed by
stockholders to circumvent the law, creating a cloud of doubt in the Courts mind. (Narra Nickel
Mining and Development Corp. v. Redmont Consolidated Mines Corp., G.R. No. 195580, April
21, 2014)

Hydropower generation by foreign entities is not constitutionally proscribed.

Waters are "natural resources" within the meaning of Section 2 Article XII of the
present Constitution, hence, the exploitation, development and utilization of waters
should be limited to Filipino citizens or corporations or associations at least sixty per
centum of the capital of which is owned by Filipino citizens. However, utilization of
waters can be opened even to foreign nationals, after the same have been extracted
from the source by qualified persons or entities. The process of generating electric
power from the dam water entering the power plant does not constitute
appropriation of natural resource. There is no legal impediment to foreign-owned
companies undertaking the generation of electric power using waters already
appropriated by qualified persons or entities, such as NPC.

Sec. 2, Art. XII of the 1987 Constitution provides in part:

SEC.2. All lands of the public domain, waters, minerals, coal, petroleum, and
other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora
and fauna, and other natural resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be alienated. The exploration,
development, and utilization of natural resources shall be under the full
control and supervision of the State. The State may directly undertake such
activities, or it may enter into co-production, joint venture, or production-sharing
agreements with Filipino citizens, or corporations or associations at least sixty per centum
of whose capital is owned by such citizens. x x x

36 | P a g e
 xxx (Emphasis supplied.)

xxx

[T]he law [P.D. No. 1067] limits the grant of water rights only to Filipino citizens and
juridical entities duly qualified by law to exploit and develop water resources, including private
corporations with sixty percent of their capital owned by Filipinos. In the case of Angat River,
the NWRB has issued separate water permits to MWSS, NPC and NIA.

Under the EPIRA, the generation of electric power, a business affected with public
interest, was opened to private sector and any new generation company is required to secure a
certificate of compliance from the Energy Regulatory Commission (ERC), as well as health,
safety and environmental clearances from the concerned government agencies. Power
generation shall not be considered a public utility operation, and hence no franchise is
necessary. Foreign investors are likewise allowed entry into the electric power industry.
However, there is no mention of water rights in the privatization of multi-purpose hydropower
facilities. x x x

xxx

In accordance with the foregoing implementing regulations, and in furtherance of the

Asset Purchase Agreement (APA), PSALM, NPC and K-Water executed on April 28, 2010 an
Operations and Maintenance Agreement (O & M Agreement) for the administration,
rehabilitation, operation, preservation and maintenance, by K-Water as the eventual owner of
the AHEPP [Angat Hydro Electric Power Plant], of the Non-Power Components meaning the
Angat Dam, non-power equipment, facilities, installations, and appurtenant devices and
structures, including the water sourced from the Angat Reservoir.

It is the position of PSALM that x x x [t]his process of generating electric power from the
dam water entering the power plant thus does not constitute appropriation within the meaning
of natural resource utilization in the Constitution and the Water Code.

xxx

Foreign ownership of a hydropower facility is not prohibited under existing laws. The
construction, rehabilitation and development of hydropower plants are among those
infrastructure projects which even wholly-owned foreign corporations are allowed to undertake
under the Amended Build-Operate-Transfer (Amended BOT) Law (R.A. No. 7718).

xxx

With respect to foreign investors, the nationality issue had been framed in terms of the
character or nature of the power generation process itself, i.e., whether the activity amounts to
utilization of natural resources within the meaning of Sec. 2, Art. XII of the Constitution. If so,
then foreign companies cannot engage in hydropower generation business; but if not, then
government may legally allow even foreign-owned companies to operate hydropower facilities.

The DOJ has consistently regarded hydropower generation by foreign entities as not
constitutionally proscribed based on the definition of water appropriation under the Water Code,
thus:

xxx

Sustaining the position of PSALM, then Secretary Raul M. Gonzalez opined:

xxx

Applied to the instant case, and construed in relation to the earlier-

mentioned constitutional inhibition, it would appear clear that while both
waters and geothermal steam are, undoubtedly "natural resources",
within the meaning of Section 2 Article XII of the present Constitution,
hence, their exploitation, development and utilization should be limited to Filipino
citizens or corporations or associations at least sixty per centum of the capital of
which is owned by Filipino citizens, the utilization thereof can be opened
even to foreign nationals, after the same have been extracted from the
source by qualified persons or entities. The rationale is because, since they

37 | P a g e
 no longer form part of the natural resources of the country, they become subject
to ordinary commerce.

xxx

The fact that under the proposal, the non-power components and
structures shall be retained and maintained by the government entities
concerned is, to us, not only a sufficient compliance of constitutional
requirement of "full control and supervision of the State" in the
exploitation, development and utilization of natural resources. It is also an
enough safeguard against the evil sought to be avoided by the constitutional
reservation x x x. (Italics in the original, emphasis supplied.)

xxx

Under the Water Code concept of appropriation, a foreign company may not be said to
be "appropriating" our natural resources if it utilizes the waters collected in the dam and
converts the same into electricity through artificial devices. Since the NPC remains in control of
the operation of the dam by virtue of water rights granted to it, as determined under DOJ
Opinion No. 122, s. 1998, there is no legal impediment to foreign-owned companies
undertaking the generation of electric power using waters already appropriated by NPC, the
holder of water permit. Such was the situation of hydropower projects under the BOT
contractual arrangements whereby foreign investors are allowed to finance or undertake
construction and rehabilitation of infrastructure projects and/or own and operate the facility
constructed. However, in case the facility requires a public utility franchise, the facility operator
must be a Filipino corporation or at least 60% owned by Filipino.

xxx

Lease or transfer of water rights is allowed under the Water Code, subject to the
approval of NWRB after due notice and hearing. However, lessees or transferees of such water
rights must comply with the citizenship requirement imposed by the Water Code and its IRR. x
xx

xxx

x x x [T]he Water Code explicitly provides that Filipino citizens and juridical persons who
may apply for water permits should be "duly qualified by law to exploit and develop water
resources."

xxx

In fine, the Court rules that while the sale of AHEPP to a foreign corporation pursuant to
the privatization mandated by the EPIRA did not violate Sec. 2, Art. XII of the 1987 Constitution
which limits the exploration, development and utilization of natural resources under the full
supervision and control of the State or the States undertaking the same through joint venture,
co-production or production sharing agreements with Filipino corporations 60% of the capital of
which is owned by Filipino citizens, the stipulation in the Asset Purchase Agreement and
Operations and Maintenance Agreement whereby NPC consents to the transfer of water rights
to the foreign buyer, K-Water, contravenes the aforesaid constitutional provision and the Water
Code. (Initiatives For Dialogue And Empowerment Through Alternative Legal Services, Inc. v.
Power Sector Assets and Liabilities Management Corporation, G.R. No. 192088, October 9,
2012)

STATE IMMUNITY FROM SUIT

An unincorporated agency without any separate juridical personality of its

own enjoys immunity from suit. The State will be deemed to have impliedly waived
its non-suability only if it has entered into a contract in its proprietary or private
capacity. Contracts for the construction of public roads that the DPWH enter into are
done in the exercise of its governmental functions, hence, there is no implied waiver
by the DPWH simply by entering into such contract.
38 | P a g e
 The doctrine of immunity from suit is anchored on Section 3, Article XVI of the 1987
Constitution which provides:

Section 3. The State may not be sued without its consent.

The general rule is that a state may not be sued, but it may be the subject of a suit if it
consents to be sued, either expressly or impliedly. There is express consent when a law so
provides, while there is implied consent when the State enters into a contract or it itself
commences litigation. This Court explained that in order to determine implied waiver when the
State or its agency entered into a contract, there is a need to distinguish whether the contract
was entered into in its governmental or proprietary capacity, thus:

x x x. However, it must be clarified that when a state enters into a contract, it does
not automatically mean that it has waived its nonsuability. The State "will be deemed to
have impliedly waived its nonsuability [only] if it has entered into a contract in its
proprietary or private capacity. [However,] when the contract involves its sovereign or
governmental capacity[,] x x x no such waiver may be implied." Statutory provisions
waiving [s]tate immunity are construed in strictissimi juris. For, waiver of immunity is in
derogation of sovereignty.

In Air Transportation Office v. Ramos, the Court expounded:

An unincorporated agency without any separate juridical personality of its own

enjoys immunity from suit because it is invested with an inherent power of sovereignty. x x
x. However, the need to distinguish between an unincorporated government agency
performing governmental function and one performing proprietary functions has arisen.
The immunity has been upheld in favor of the former because its function is governmental
or incidental to such function; it has not been upheld in favor of the latter whose function
was not in pursuit of a necessary function of government but was essentially a business.

Having made this distinction, we reiterate that the DPWH is an unincorporated

government agency without any separate juridical personality of its own and it enjoys immunity
from suit. x x x

xxx

It is clear from the enumeration of its functions [under EO 710 series of 1981; and EO
124 series of 1987] that the DPWH performs governmental functions. x x x

The contracts that the DPWH entered into with Mendoza for the construction of
Packages VI and IX of the HADP were done in the exercise of its governmental functions.
Hence, petitioners cannot claim that there was an implied waiver by the DPWH simply by
entering into a contract. Thus, the Court of Appeals correctly ruled that the DPWH enjoys
immunity from suit and may not be sued without its consent. (Mendoza v. Department of Public
Works and Highways, G.R. No. 203834, July 9, 2014)

An unincorporated government agency without any separate juridical

personality of its own enjoys immunity from suit. However, if an unincorporated
government agency performs proprietary, private or non-governmental functions, it
is not immune from suit. The ATO was involved in the management and
maintenance of the Loakan Airport, which are primarily private or non-
governmental functions. Hence, the ATO has no claim to immunity from suit.

The immunity of the State from suit, known also as the doctrine of sovereign immunity
or non-suability of the State, is expressly provided in Article XVI of the 1987 Constitution, viz:

Section 3. The State may not be sued without its consent.

The immunity from suit is based on the political truism that the State, as a sovereign,
can do no wrong. Moreover, as the eminent Justice Holmes said in Kawananakoa v. Polyblank:

39 | P a g e
 x x x A sovereign is exempt from suit, not because of any formal conception or
obsolete theory, but on the logical and practical ground that there can be no legal right as
against the authority that makes the law on which the right depends. x x x

Practical considerations dictate the establishment of an immunity from suit in favor

of the State. Otherwise, and the State is suable at the instance of every other individual,
government service may be severely obstructed and public safety endangered because of
the number of suits that the State has to defend against. x x x

An unincorporated government agency without any separate juridical personality of its

own enjoys immunity from suit because it is invested with an inherent power of sovereignty.
Accordingly, a claim for damages against the agency cannot prosper; otherwise, the doctrine of
sovereign immunity is violated. However, the need to distinguish between an unincorporated
government agency performing governmental function and one performing proprietary
functions has arisen. The immunity has been upheld in favor of the former because its function
is governmental or incidental to such function; it has not been upheld in favor of the latter
whose function was not in pursuit of a necessary function of government but was essentially a
business.

Should the doctrine of sovereignty immunity or non-suability of the State be extended to

the ATO?

xxx

[I]n the much later case of Civil Aeronautics Administration vs. Court of Appeals (167
SCRA 28 [1988]), the Supreme Court, reiterating the pronouncements laid down in Teodoro,
declared that the CAA (predecessor of ATO) is an agency not immune from suit, it being
engaged in functions pertaining to a private entity. It went on to explain in this wise:

xxx

The Civil Aeronautics Administration comes under the category of a private entity. Although
not a body corporate it was created, like the National Airports Corporation, not to maintain a
necessary function of government, but to run what is essentially a business, even if revenues be not
its prime objective but rather the promotion of travel and the convenience of the travelling public. It
is engaged in an enterprise which, far from being the exclusive prerogative of state, may, more
than the construction of public roads, be undertaken by private concerns. [National Airports Corp. v.
Teodoro, supra, p. 207.]

xxx

True, the law prevailing in 1952 when the Teodoro case was promulgated was Exec. Order
365 (Reorganizing the Civil Aeronautics Administration and Abolishing the National Airports
Corporation). Republic Act No. 776 (Civil Aeronautics Act of the Philippines), subsequently enacted
on June 20, 1952, did not alter the character of the CAAs objectives under Exec. Order 365. The
pertinent provisions cited in the Teodoro case, particularly Secs. 3 and 4 of Exec. Order 365, which
led the Court to consider the CAA in the category of a private entity were retained substantially in
Republic Act 776, Sec. 32(24) and (25). x x x

From the foregoing, it can be seen that the CAA is tasked with private or non-
governmental functions which operate to remove it from the purview of the rule on State immunity
from suit. For the correct rule as set forth in the Teodoro case states:

xxx

Not all government entities, whether corporate or non-corporate, are immune from suits.
Immunity from suits is determined by the character of the objects for which the entity was
organized. The rule is thus stated in Corpus Juris:

Suits against State agencies with relation to matters in which they have assumed to act in
private or non-governmental capacity, and various suits against certain corporations created by the
state for public purposes, but to engage in matters partaking more of the nature of ordinary
business rather than functions of a governmental or political character, are not regarded as suits
against the state. The latter is true, although the state may own stock or property of such a
corporation for by engaging in business operations through a corporation, the state divests itself so
far of its sovereign character, and by implication consents to suits against the corporation. (59 C.J.,
313) [National Airports Corporation v. Teodoro, supra, pp. 206-207; Italics supplied.]

This doctrine has been reaffirmed in the recent case of Malong v. Philippine National
Railways [G.R. No. L-49930, August 7, 1985, 138 SCRA 63], where it was held that the Philippine
National Railways, although owned and operated by the government, was not immune from suit as

40 | P a g e
 it does not exercise sovereign but purely proprietary and business functions. Accordingly, as the
CAA was created to undertake the management of airport operations which primarily involve
proprietary functions, it cannot avail of the immunity from suit accorded to government agencies
performing strictly governmental functions.

In our view, the CA thereby correctly appreciated the juridical character of the ATO as
an agency of the Government not performing a purely governmental or sovereign function, but
was instead involved in the management and maintenance of the Loakan Airport, an activity
that was not the exclusive prerogative of the State in its sovereign capacity. Hence, the ATO
had no claim to the States immunity from suit. We uphold the CAs aforequoted holding.

xxx

Lastly, the issue of whether or not the ATO could be sued without the States consent
has been rendered moot by the passage of Republic Act No. 9497, otherwise known as the Civil
Aviation Authority Act of 2008.

R.A. No. 9497 abolished the ATO. x x x

Under its Transitory Provisions, R.A. No. 9497 established in place of the ATO the Civil
Aviation Authority of the Philippines (CAAP), which thereby assumed all of the ATOs powers,
duties and rights, assets, real and personal properties, funds, and revenues, x x x.

Section 23 of R.A. No. 9497 enumerates the corporate powers vested in the CAAP,
including the power to sue and be sued x x x. (Air Transportation Office v. Spouses Ramos,
G.R. No. 159402, February 23, 2011)

The doctrine of sovereign immunity cannot be invoked to defeat a valid claim

for compensation arising from a taking without just compensation. The doctrine of
sovereign immunity is not an instrument for perpetrating any injustice on a citizen.

We further observe the doctrine of sovereign immunity cannot be successfully invoked

to defeat a valid claim for compensation arising from the taking without just compensation and
without the proper expropriation proceedings being first resorted to of the plaintiffs property.
Thus, in De los Santos v. Intermediate Appellate Court, the trial courts dismissal based on the
doctrine of non-suability of the State of two cases (one of which was for damages) filed by
owners of property where a road 9 meters wide and 128.70 meters long occupying a total area
of 1,165 square meters and an artificial creek 23.20 meters wide and 128.69 meters long
occupying an area of 2,906 square meters had been constructed by the provincial engineer of
Rizal and a private contractor without the owners knowledge and consent was reversed and the
cases remanded for trial on the merits. The Supreme Court ruled that the doctrine of sovereign
immunity was not an instrument for perpetrating any injustice on a citizen. In exercising the
right of eminent domain, the Court explained, the State exercised its jus imperii, as
distinguished from its proprietary rights, or jus gestionis; yet, even in that area, where private
property had been taken in expropriation without just compensation being paid, the defense of
immunity from suit could not be set up by the State against an action for payment by the
owners. (Air Transportation Office v. Spouses Ramos, G.R. No. 159402, February 23, 2011)

The Bureau of Customs may be sued and held liable for the loss of imported
goods due to BOC's ineptitude and gross negligence. Justice and equity demand that
the State's cloak of invincibility against suit and liability be shredded.

On the issue regarding the state immunity doctrine, the Commissioner cannot escape
liability for the lost shipment of goods. This was clearly discussed in the UNIMEX Micro-
Electronics GmBH decision, where the Court wrote:

Finally, petitioner argues that a money judgment or any charge against the
government requires a corresponding appropriation and cannot be decreed by mere
judicial order.

Although it may be gainsaid that the satisfaction of respondent's demand will

ultimately fall on the government, and that, under the political doctrine of "state
immunity," it cannot be held liable for governmental acts (jus imperii), we still hold that
41 | P a g e
 petitioner cannot escape its liability. The circumstances of this case warrant its exclusion
from the purview of the state immunity doctrine.

As previously discussed, the Court cannot turn a blind eye to BOC's ineptitude and
gross negligence in the safekeeping of respondent's goods. We are not likewise unaware of
its lackadaisical attitude in failing to provide a cogent explanation on the goods'
disappearance, considering that they were in its custody and that they were in fact the
subject of litigation. The situation does not allow us to reject respondent's claim on the
mere invocation of the doctrine of state immunity. Succinctly, the doctrine must be fairly
observed and the State should not avail itself of this prerogative to take undue advantage
of parties that may have legitimate claims against it.

In Department of Health v. C.V. Canchela & Associates, we enunciated that this

Court, as the staunch guardian of the people's rights and welfare, cannot sanction an
injustice so patent in its face, and allow itself to be an instrument in the perpetration
thereof. x x x Justice and equity now demand that the State's cloak of invincibility against
suit and liability be shredded.

Accordingly, we agree with the lower courts' directive that, upon payment of the
necessary customs duties by respondent, petitioner's "payment shall be taken from the
sale or sales of goods or properties seized or forfeited by the Bureau of Customs."

xxx

In line with the ruling in UNIMEX Micro-Electronics GmBH, the Commissioner of Customs
should pay AGFHA the value of the subject lost shipment in the amount of US$160,348.08 x x
x. (Commissioner of Customs v. AGFHA Inc., G.R. No. 187425, March 28, 2011)

The DPWH can be sued and held liable to pay for a project that was already
completed decades ago. The doctrine of governmental immunity from suit cannot
serve as an instrument for perpetrating an injustice to a citizen.

The government project involved in this case, the construction of a dike, was completed
way back on 9 July 1992. x x x

xxx

Neither can petitioners escape the obligation to compensate respondent for services
rendered and work done by invoking the states immunity from suit. This Court has long
established in Ministerio v. CFI of Cebu, and recently reiterated in Heirs of Pidacan v. ATO, that
the doctrine of governmental immunity from suit cannot serve as an instrument for perpetrating
an injustice to a citizen. As this Court enunciated in EPG Construction:

To our mind, it would be the apex of injustice and highly inequitable to defeat
respondents right to be duly compensated for actual work performed and services
rendered, where both the government and the public have for years received and accepted
benefits from the project and reaped the fruits of respondents honest toil and labor.

xxx xxx xxx

Under these circumstances, respondent may not validly invoke the Royal
Prerogative of Dishonesty and conveniently hide under the State's cloak of invincibility
against suit, considering that this principle yields to certain settled exceptions. True
enough, the rule, in any case, is not absolute for it does not say that the state may not be
sued under any circumstance.

xxx xxx

Although the Amigable and Ministerio cases generously tackled the issue of the
State's immunity from suit vis a vis the payment of just compensation for expropriated
property, this Court nonetheless finds the doctrine enunciated in the aforementioned cases
applicable to the instant controversy, considering that the ends of justice would be
subverted if we were to uphold, in this particular instance, the State's immunity from suit.

To be sure, this Court x x x cannot sanction an injustice so patent on its face, and
allow itself to be an instrument in the perpetration thereof. Justice and equity sternly
demand that the State's cloak of invincibility against suit be shred in this particular
42 | P a g e
 instance, and that petitioners-contractors be duly compensated on the basis of quantum
meruit for construction done on the public works housing project.

(Vigilar v. Aquino, G.R. No. 180388, January 18, 2011)

CITIZENSHIP IN GENERAL

As a matter of law, foundlings are natural-born citizens.

As a matter of law, foundlings are as a class, natural-born citizens. While the 1935
Constitution's enumeration is silent as to foundlings, there is no restrictive language which
would definitely exclude foundlings either. Because of silence and ambiguity in the enumeration
with respect to foundlings, there is a need to examine the intent of the framers. Xxx

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

In other words, the constitutional silence is fully explained in terms of linguistic

efficiency and the avoidance of redundancy. The policy is clear: it is to recognize foundlings, as
a class, as Filipinos under Art. IV, Section 1 (3) of the 1935 Constitution. This inclusive policy is
carried over into the 1973 and 1987 Constitution. (Poe-Llamanzares v. Comelec, G.R. No.
221697, March 8, 2016)

Foundlings are citizens under international law. Also, it is a generally

accepted principle of international law to presume foundlings as having been born
of nationals of the country in which the foundling is found.

Foundlings are likewise citizens under international law. Under the 1987 Constitution, an
international law can become part of the sphere of domestic law either by transformation or
incorporation. The transformation method requires that an international law be transformed into
a domestic law through a constitutional mechanism such as local legislation. On the other hand,
generally accepted principles of international law, by virtue of the incorporation clause of the
Constitution, form part of the laws of the land even if they do not derive from treaty
obligations. xxx Universal Declaration of Human Rights ("UDHR") has been interpreted by this
Court as part of the generally accepted principles of international law and binding on the State.
Article 15 thereof states:
1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality nor denied the
right to change his nationality.

The Philippines has also ratified the UN Convention on the Rights of the Child (UNCRC).
Article 7 of the UNCRC imposes the following obligations on our country:
Article 7
1. The child shall be registered immediately after birth and shall have the
right from birth to a name, the right to acquire a nationality and as far as
possible, the right to know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in
accordance with their national law and their obligations under the relevant
international instruments in this field, in particular where the child would
otherwise be stateless.

In 1986, the country also ratified the 1966 International Covenant on Civil and Political
Rights (ICCPR). Article 24 thereof provide for the right of every child "to acquire a nationality:"
Article 24
1. Every child shall have, without any discrimination as to race, colour,
sex, language, religion, national or social origin, property or birth, the right, to
such measures of protection as are required by his status as a minor, on the part
of his family, society and the State.

43 | P a g e
 2. Every child shall be registered immediately after birth and shall have a
name.
3. Every child has the right to acquire a nationality.

The common thread of the UDHR, UNCRC and ICCPR is to obligate the
Philippines to grant nationality from birth and ensure that no child is stateless. This
grant of nationality must be at the time of birth, and it cannot be accomplished by the
application of our present naturalization laws, Commonwealth Act No. 473, as amended, and
R.A. No. 9139, both of which require the applicant to be at least eighteen (18) years old.

The principles found in two conventions, while yet unratified by the Philippines, are
generally accepted principles of international law. The first is Article 14 of the 1930 Hague
Convention on Certain Questions Relating to the Conflict of Nationality Laws under which a
foundling is presumed to have the "nationality of the country of birth," to wit:
Article 14
A child whose parents are both unknown shall have the nationality of the
country of birth. If the child's parentage is established, its nationality shall be
determined by the rules applicable in cases where the parentage is known.
A foundling is, until the contrary is proved, presumed to have been born
on the territory of the State in which it was found. (Underlining supplied)

The second is the principle that a foundling is presumed born of citizens of the country
where he is found, contained in Article 2 of the 1961 United Nations Convention on the
Reduction of Statelessness:
Article 2
A foundling found in the territory of a Contracting State shall, in the
absence of proof to the contrary, be considered to have been born within the
territory of parents possessing the nationality of that State.

That the Philippines is not a party to the 1930 Hague Convention nor to the 1961
Convention on the Reduction of Statelessness does not mean that their principles are not
binding. While the Philippines is not a party to the 1930 Hague Convention, it is a signatory to
the Universal Declaration on Human Rights, Article 15(1) of which effectively affirms Article 14
of the 1930 Hague Convention. Article 2 of the 1961 "United Nations Convention on the
Reduction of Statelessness" merely "gives effect" to Article 15(1) of the UDHR. In Razon v.
Tagitis, this Court noted that the Philippines had not signed or ratified the "International
Convention for the Protection of All Persons from Enforced Disappearance." Yet, we ruled that
the proscription against enforced disappearances in the said convention was nonetheless
binding as a "generally accepted principle of international law." Razon v. Tagitis is likewise
notable for declaring the ban as a generally accepted principle of international law although the
convention had been ratified by only sixteen states and had not even come into force and which
needed the ratification of a minimum of twenty states. xxx

Our approach in Razon and Mijares effectively takes into account the fact that "generally
accepted principles of international law" are based not only on international custom, but also on
"general principles of law recognized by civilized nations," as the phrase is understood in Article
38.1 paragraph (c) of the ICJ Statute. Justice, fairness, equity and the policy against
discrimination, which are fundamental principles underlying the Bill of Rights and which are
"basic to legal systems generally," support the notion that the right against enforced
disappearances and the recognition of foreign judgments, were correctly considered as
"generally accepted principles of international law" under the incorporation clause.

Petitioner's evidence shows that at least sixty countries in Asia, North and South
America, and Europe have passed legislation recognizing foundlings as its citizen. xxx Also, the
Chief Justice, at the 2 February 2016 Oral Arguments pointed out that in 166 out of 189
countries surveyed (or 87.83%), foundlings are recognized as citizens. These circumstances,
including the practice of jus sanguinis countries, show that it is a generally accepted
principle of international law to presume foundlings as having been born of
nationals of the country in which the foundling is found.

Current legislation reveals the adherence of the Philippines to this generally accepted
principle of international law. In particular, R.A. No. 8552, R.A. No. 8042 and this Court's Rules
on Adoption, expressly refer to "Filipino children." In all of them, foundlings are among the

44 | P a g e
Filipino children who could be adopted. Likewise, it has been pointed that the DFA issues
passports to foundlings. Passports are by law, issued only to citizens. This shows that even the
executive department, acting through the DFA, considers foundlings as Philippine citizens.

Adopting these legal principles from the 1930 Hague Convention and the 1961
Convention on Statelessness is rational and reasonable and consistent with the jus
sanguinis regime in our Constitution. The presumption of natural-born citizenship of foundlings
stems from the presumption that their parents are nationals of the Philippines. xxx

In sum, all of the international law conventions and instruments on the matter of
nationality of foundlings were designed to address the plight of a defenseless class which
suffers from a misfortune not of their own making. We cannot be restrictive as to their
application if we are a country which calls itself civilized and a member of the community of
nations. (Poe-Llamanzares v. Comelec, G.R. No. 221697, March 8, 2016) (Emphases supplied)

Election of citizenship: Children born under the 1935 Constitution of a Filipino

mother and an alien father who executed an affidavit of election of Philippine
citizenship and took their oath of allegiance to the government upon reaching the
age of majority, but failed to immediately file the documents of election with the
nearest civil registry did not lose their right to elect Philippine citizenship. Their
registration of the documents of election should be allowed, if in the meanwhile
positive acts of citizenship have publicly, consistently, and continuously been done.

Should children born under the 1935 Constitution of a Filipino mother and an alien
father, who executed an affidavit of election of Philippine citizenship and took their oath of
allegiance to the government upon reaching the age of majority, but who failed to immediately
file the documents of election with the nearest civil registry, be considered foreign nationals
subject to deportation as undocumented aliens for failure to obtain alien certificates of
registration?

xxx

The 1935 Constitution declares as citizens of the Philippines those whose mothers are
citizens of the Philippines and elect Philippine citizenship upon reaching the age of majority. xxx

In 1941, Commonwealth Act No. 625 was enacted. It laid down the manner of electing
Philippine citizenship, to wit:

Section 1. The option to elect Philippine citizenship in accordance with

subsection (4), Section 1, Article IV, of the Constitution shall be expressed in a
statement to be signed and sworn to by the party concerned before any officer
authorized to administer oaths, and shall be filed with the nearest civil registry. The said
party shall accompany the aforesaid statement with the oath of allegiance to the
Constitution and the Government of the Philippines.

The statutory formalities of electing Philippine citizenship are: (1) a statement of

election under oath; (2) an oath of allegiance to the Constitution and Government of the
Philippines; and (3) registration of the statement of election and of the oath with the
nearest civil registry.

xxx

Petitioners complied with the first and second requirements upon reaching the age of
majority. It was only the registration of the documents of election with the civil registry that
was belatedly done.

We rule that under the facts peculiar to the petitioners, the right to elect Philippine
citizenship has not been lost and they should be allowed to complete the statutory requirements
for such election.

xxx

In Ching, it may be recalled that we denied his application for admission to the
Philippine Bar because, in his case, all the requirements, to wit: (1) a statement of election
under oath; (2) an oath of allegiance to the Constitution and Government of the Philippines;
and (3) registration of the statement of election and of the oath with the nearest civil registry
45 | P a g e
were complied with only fourteen (14) years after he reached the age of majority. Ching offered
no reason for the late election of Philippine citizenship.

xxx

We are not prepared to state that the mere exercise of suffrage, being elected public
official, continuous and uninterrupted stay in the Philippines, and other similar acts showing
exercise of Philippine citizenship can take the place of election of citizenship. What we now say
is that where, as in petitioners case, the election of citizenship has in fact been done and
documented within the constitutional and statutory timeframe, the registration of the
documents of election beyond the frame should be allowed if in the meanwhile positive acts of
citizenship have publicly, consistently, and continuously been done. The actual exercise of
Philippine citizenship, for over half a century by the herein petitioners, is actual notice to the
Philippine public which is equivalent to formal registration of the election of Philippine
citizenship.

xxx

Registration, then, is the confirmation of the existence of a fact. In the instant case,
registration is the confirmation of election as such election. It is not the registration of the act
of election, although a valid requirement under Commonwealth Act No. 625, that will confer
Philippine citizenship on the petitioners. It is only a means of confirming the fact that citizenship
has been claimed.

xxx

Notably, the petitioners timely took their oath of allegiance to the Philippines. This was a
serious undertaking. It was commitment and fidelity to the state coupled with a pledge "to
renounce absolutely and forever all allegiance" to any other state. This was unqualified
acceptance of their identity as a Filipino and the complete disavowal of any other nationality.

xxx

Having a Filipino mother is permanent. It is the basis of the right of the petitioners to
elect Philippine citizenship. Petitioners elected Philippine citizenship in form and substance. The
failure to register the election in the civil registry should not defeat the election and resultingly
negate the permanent fact that they have a Filipino mother. The lacking requirements may still
be complied with subject to the imposition of appropriate administrative penalties, if any. (Ma v.
Fernandez, G.R. No. 183133, July 26, 2010)

Reacquisition of Philippine citizenship under RA 9225 for those who have lost
the same by naturalization before the effectivity of RA 9225 -- has no retroactive
effect. A former natural-born Filipino citizen re-acquires his Philippine citizenship
upon taking the oath of allegiance to the Republic.

While Section 2 [of RA 9225] declares the general policy that Filipinos who have become
citizens of another country shall be deemed "not to have lost their Philippine citizenship," such
is qualified by the phrase "under the conditions of this Act." Section 3 lays down such conditions
for two categories of natural-born Filipinos referred to in the first and second paragraphs. Under
the first paragraph are those natural-born Filipinos who have lost their citizenship by
naturalization in a foreign country who shall re-acquire their Philippine citizenship upon taking
the oath of allegiance to the Republic of the Philippines. The second paragraph covers those
natural-born Filipinos who became foreign citizens after R.A. 9225 took effect, who shall retain
their Philippine citizenship upon taking the same oath. The taking of oath of allegiance is
required for both categories of natural-born Filipino citizens who became citizens of a foreign
country, but the terminology used is different, "re-acquired" for the first group, and "retain" for
the second group.

The law thus makes a distinction between those natural-born Filipinos who became
foreign citizens before and after the effectivity of R.A. 9225. x x x

In fine, for those who were naturalized in a foreign country, they shall be deemed to
have re-acquired their Philippine citizenship which was lost pursuant to CA 63, under which
naturalization in a foreign country is one of the ways by which Philippine citizenship may be
lost. As its title declares, R.A. 9225 amends CA 63 by doing away with the provision in the old
46 | P a g e
law which takes away Philippine citizenship from natural-born Filipinos who become naturalized
citizens of other countries and allowing dual citizenship, and also provides for the procedure for
re-acquiring and retaining Philippine citizenship. In the case of those who became foreign
citizens after R.A. 9225 took effect, they shall retain Philippine citizenship despite having
acquired foreign citizenship provided they took the oath of allegiance under the new law.

Petitioner insists we should not distinguish between re-acquisition and retention in R.A.
9225. He asserts that in criminal cases, that interpretation of the law which favors the accused
is preferred because it is consistent with the constitutional presumption of innocence x x x.

These contentions have no merit.

That the law distinguishes between re-acquisition and retention of Philippine citizenship
was made clear in the discussion of the Bicameral Conference Committee on the Disagreeing
Provisions of House Bill No. 4720 and Senate Bill No. 2130 held on August 18, 2003 x x x.

Considering that petitioner was naturalized as a Canadian citizen prior to the effectivity
of R.A. 9225, he belongs to the first category of natural- born Filipinos under the first paragraph
of Section 3 who lost Philippine citizenship by naturalization in a foreign country. x x x

xxx

Petitioner made the untruthful statement in the MLA, a public document, that he is a
Filipino citizen at the time of the filing of said application, when in fact he was then still a
Canadian citizen. Under CA 63, the governing law at the time he was naturalized as Canadian
citizen, naturalization in a foreign country was among those ways by which a natural-born
citizen loses his Philippine citizenship. While he re-acquired Philippine citizenship under R.A.
9225 six months later, the falsification was already a consummated act, the said law having no
retroactive effect insofar as his dual citizenship status is concerned. (David v. Agbay, G.R. No.
199113, March 18, 2015)

STATE POWERS

POLICE POWER

Property rights must bow to the primacy of police power because property
rights, though sheltered by due process, must yield to general welfare. The
regulation of a profession, calling, business or trade has always been upheld as a
legitimate exercise of police power.

Petitioners contend that the assailed provisions of R.A. No. 9646 are unduly oppressive
and infringe the constitutional rule against deprivation of property without due process of law.
They stress that real estate developers are now burdened by law to employ licensed real estate
brokers to sell, market and dispose of their properties. x x x

The contention has no basis. There is no deprivation of property as no restriction on

their use and enjoyment of property is caused by the implementation of R.A. No. 9646. xxx

Indeed, no right is absolute, and the proper regulation of a profession, calling, business
or trade has always been upheld as a legitimate subject of a valid exercise of the police power
of the State particularly when their conduct affects the execution of legitimate governmental
functions, the preservation of the State, public health and welfare and public morals. x x x
[U]nder the mantle of police power, of regulating entry to the practice of various trades or
professions.

Here, the legislature recognized the importance of professionalizing the ranks of real
estate practitioners x x x.

We thus find R.A. No. 9646 a valid exercise of the States police power. x x x

47 | P a g e
 x x x Police power x x x is "[t]he power vested in the legislature by the constitution to
make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and
ordinances, either with penalties or without, not repugnant to the constitution, as they shall
judge to be for the good and welfare of the commonwealth, and of the subjects of the same."

For this reason, when the conditions so demand as determined by the legislature,
property rights must bow to the primacy of police power because property rights, though
sheltered by due process, must yield to general welfare. (Remman Enterprises v. Professional
Regulatory Board of Real Estate Service, G.R. No. 197676, February 4, 2014)

The rational relationship test for a valid exercise of police power: (1) the
interests of the public generally require its exercise and (2) the means employed are
reasonably necessary for the purpose and not unduly oppressive upon individuals.
Lacking these two requisites, the police power measure shall be struck down as an
arbitrary intrusion into private rights and a violation of the due process clause.

Ordinance No. 192 was passed by the City Council of Marikina in the apparent exercise
of its police power. To successfully invoke the exercise of police power as the rationale for the
enactment of an ordinance and to free it from the imputation of constitutional infirmity, two
tests have been used by the Court the rational relationship test and the strict scrutiny test:

We ourselves have often applied the rational basis test mainly in analysis of equal
protection challenges. Using the rational basis examination, laws or ordinances are upheld if
they rationally further a legitimate governmental interest. Under intermediate review,
governmental interest is extensively examined and the availability of less restrictive measures is
considered. Applying strict scrutiny, the focus is on the presence of compelling, rather than
substantial, governmental interest and on the absence of less restrictive means for achieving
that interest.

Even without going to a discussion of the strict scrutiny test, Ordinance No. 192, series
of 1994 must be struck down for not being reasonably necessary to accomplish the Citys
purpose. More importantly, it is oppressive of private rights.

Under the rational relationship test, an ordinance must pass the following requisites as
discussed in Social Justice Society (SJS) v. Atienza, Jr.:

As with the State, local governments may be considered as having properly

exercised their police power only if the following requisites are met: (1) the interests of the
public generally, as distinguished from those of a particular class, require its exercise and
(2) the means employed are reasonably necessary for the accomplishment of the purpose
and not unduly oppressive upon individuals. In short, there must be a concurrence of a
lawful subject and lawful method.

Lacking a concurrence of these two requisites, the police power measure shall be struck
down as an arbitrary intrusion into private rights and a violation of the due process clause.
(Fernando v. St. Scholasticas College, G.R. No. 161107, March 12, 2013)

The State may not, under the guise of police power, permanently divest
owners of the beneficial use of their property solely to preserve or enhance the
aesthetic appearance of the community. The requirement under the ordinance for
owners of educational institutions to build their fences six meters back for
beautification purposes is invalid.

Section 3.1 and 5 of the assailed ordinance are pertinent to the issue at hand, to wit:

Section 3. The standard height of fences of walls allowed under this ordinance are as
follows:

(1) Fences on the front yard shall be no more than one (1) meter in height. Fences in
excess of one (1) meter shall be an open fence type, at least eighty percent (80%) see-thru;

xxx xxx xxx

48 | P a g e
 Section 5. In no case shall walls and fences be built within the five (5) meter parking area
allowance located between the front monument line and the building line of commercial and
industrial establishments and educational and religious institutions.

The respondents, thus, sought to prohibit the petitioners from requiring them to (1)
demolish their existing concrete wall, (2) build a fence (in excess of one meter) which must be
80% see-thru, and (3) build the said fence six meters back in order to provide a parking area.

xxx

Anent the objectives of prevention of concealment of unlawful acts and "un-

neighborliness," it is obvious that providing for a parking area has no logical connection to, and
is not reasonably necessary for, the accomplishment of these goals.

Regarding the beautification purpose of the setback requirement, it has long been
settled that the State may not, under the guise of police power, permanently divest owners of
the beneficial use of their property solely to preserve or enhance the aesthetic appearance of
the community. The Court, thus, finds Section 5 to be unreasonable and oppressive as it will
substantially divest the respondents of the beneficial use of their property solely for aesthetic
purposes. Accordingly, Section 5 of Ordinance No. 192 is invalid. (Fernando v. St. Scholasticas
College, G.R. No. 161107, March 12, 2013)

There must be reasonable relation between the purpose of the police power
measure and the means employed for its accomplishment. The means employed
must be reasonably necessary for the accomplishment of the government purpose.
Limiting the height of fences of private properties to one meter and requiring fences
in excess of one meter to be at least 80% see-thru has no reasonable relation to its
purpose of ensuring public safety and security. The ordinance is thus an invalid
exercise of police power.

The petitioners argue that x x x Section 3.1 [of Ordinance No. 192] limiting the height of
fences to one meter and requiring fences in excess of one meter to be at least 80% see-thru,
should remain valid and enforceable against the respondents.

The Court cannot accommodate the petitioner.

For Section 3.1 to pass the rational relationship test, the petitioners must show the
reasonable relation between the purpose of the police power measure and the means employed
for its accomplishment, for even under the guise of protecting the public interest, personal
rights and those pertaining to private property will not be permitted to be arbitrarily invaded.

The principal purpose of Section 3.1 is "to discourage, suppress or prevent the
concealment of prohibited or unlawful acts." The ultimate goal of this objective is clearly the
prevention of crime to ensure public safety and security. The means employed by the
petitioners, however, is not reasonably necessary for the accomplishment of this purpose and is
unduly oppressive to private rights. The petitioners have not adequately shown, and it does not
appear obvious to this Court, that an 80% see-thru fence would provide better protection and a
higher level of security, or serve as a more satisfactory criminal deterrent, than a tall solid
concrete wall. It may even be argued that such exposed premises could entice and tempt
would-be criminals to the property, and that a see-thru fence would be easier to bypass and
breach. It also appears that the respondents concrete wall has served as more than sufficient
protection over the last 40 years. `

As to the beautification purpose of the assailed ordinance, as previously discussed, the

State may not, under the guise of police power, infringe on private rights solely for the sake of
the aesthetic appearance of the community. Similarly, the Court cannot perceive how a see-thru
fence will foster "neighborliness" between members of a community.

Compelling the respondents to construct their fence in accordance with the assailed
ordinance is, thus, a clear encroachment on their right to property, which necessarily includes
their right to decide how best to protect their property. (Fernando v. St. Scholasticas College,
G.R. No. 161107, March 12, 2013)

49 | P a g e
 The constitutional guaranty of non-impairment of contracts is limited by the
exercise of the police power. The law is deemed written into the contract between
the parties. Thus, survey firms may be compelled by the Comelec, through
regulation, to reveal the identities of subscribers to election surveys, despite the
confidentiality clause in their contracts.

Petitioners argue that Resolution No. 9674 violates Article III, Section 10 of the 1987
Constitution. They claim that it "unduly interferes with [their] existing contracts . . . by forcing
[them] to disclose information that, under the contracts, is confidential or privileged."

xxx

It is settled that "the constitutional guaranty of non-impairment . . . is limited by the

exercise of the police power of the State, in the interest of public health, safety, morals and
general welfare." "It is a basic rule in contracts that the law is deemed written into the contract
between the parties." The incorporation of regulations into contracts is "a postulate of the
police power of the State."

The relation of the states police power with the principle of non-impairment of contracts
was thoroughly explained in Ortigas and Co. V. Feati Bank:

[W]hile non-impairment of contracts is constitutionally guaranteed, the rule is not

absolute, since it has to be reconciled with the legitimate exercise of police power, i.e., "the
power to prescribe regulations to promote the health, morals, peace, education, good order or
safety and general welfare of the people. x x x We do not see why public welfare when clashing
with the individual right to property should not be made to prevail through the state's exercise
of its police power.

This case does not involve a "capricious, whimsical, unjust or unreasonable" regulation.
We have demonstrated that not only an important or substantial state interest, but even a
compelling one anchors Resolution No. 9674s requirement of disclosing subscribers to election
surveys. It effects the constitutional policy of "guarantee[ing] equal access to opportunities for
public service" and is impelled by the imperative of "fair" elections.

As a valid exercise of COMELECs regulatory powers, Resolution No. 9674 is correctly

deemed written into petitioners existing contracts. (Social Weather Station v. Commission on
Elections, G.R. No. 208062, April 27, 2015)

EMINENT DOMAIN

Meaning of taking: "Taking" of property takes place when: (1) the owner is
actually deprived or dispossessed of his property;(2) there is a practical destruction
or a material impairment of the value of his property; (3) the owner is deprived of
the ordinary use of the property, or (4) when he is deprived of the jurisdiction,
supervision and control of his property.

To clarify and to avoid confusion in the implementation of our judgment, the full
payment of just compensation is not a prerequisite for the Government's effective taking of the
property. As discussed above, RA 8974 allows the Government to enter the property and
implement national infrastructure projects upon the issuance of the writ of possession. When
the taking of the property precedes the payment of just compensation, the Government shall
indemnify the property owner by way of interest.

"Taking" under the power of eminent domain means entering upon private property for
more than a momentary period, and under the warrant or color of legal authority, devoting it to
public use, or otherwise informally appropriating or injuriously affecting it in such a way as
substantially to oust the owner and deprive him of all beneficial enjoyment thereof.

"Taking" of property takes place when: (1) the owner is actually deprived or
dispossessed of his property;(2) there is a practical destruction or a material
impairment of the value of his property; (3) the owner is deprived of the ordinary

50 | P a g e
use of the property, or (4) when he is deprived of the jurisdiction, supervision and
control of his property.

The taking of property is different from the transfer of the property title from the private
owner to the Government. Under Rule 67 of the Rules of Court, there are two phases of
expropriation: (a) the condemnation of the property after it is determined that its acquisition
will be for a public purpose or public use; and (b) the determination of just compensation to be
paid for the taking of private property to be made by the court with the assistance of not more
than three commissioners.

The first phase is concerned with the determination of the Government's authority to
exercise the power of eminent domain and the propriety of its exercise in the context of the
facts involved in the suit. The court declares that the Government has a lawful right to take the
property sought to be condemned, for the public use or purpose described in the complaint.

The second phase relates to the just amount that the Government shall compensate the
property owner.

Whenever the court affirms the condemnation of private property in the first phase of
the proceedings, it merely confirms the Government's lawful right to take the private property
for public purpose or public use. The court does not necessarily rule that the title to the private
property likewise vests on the Government.

The transfer of property title from the property owner to the Government is not a
condition precedent to the taking of property. The State may take private property prior to the
eventual transfer of title of the expropriated property to the State.

In fact, there are instances when the State takes the property prior to the filing of the
complaint for expropriation or without involving the transfer of title. In People v. Fajardo, the
Court ruled that the municipal mayor's refusal to give the property owner the permission to
build a house on his own land on the ground that the structure would destroy the beauty of the
public plaza amounts to the taking of the property requiring just compensation.

In National Power Corporation (NPC) v. Spouses Malit, the NPC's transmission lines had
to pass the Spouses Malit's property. The Court ruled that the NPC's easement of right-of-
wayon the land was equivalent to the taking of property. The limitation imposed by the NPC
against the use of the land for an indefinite period deprived the Spouses Malit of the lot's
ordinary use. Consequently, the NPC shall give the Spouses Malit just compensation.

The reckoning period, however, of the valuation of just compensation is the date of
taking or the filing of the complaint for expropriation, whichever is earlier. In either case, it is
only after the finality of the second stage and after the payment of just compensation that the
title shall pass to the Government. As we have ruled in Gingoyon, the title to the property does
not pass to the condemnor until just compensation is paid.

Under Section 4 of RA 8974, the Government is only entitled to a writ of possession

upon initial payment of just compensation to the defendant, and upon presentment to the court
of a certificate of availability of funds.

A writ of possession does not transfer title to the Government; it is "a writ of execution
employed to enforce a judgment to recover the possession of land. It commands the sheriff to
enter the land and give its possession to the person entitled under the judgment." Section 4 of
RA 8974 further states that the writ of possession is an order to take possession of the property
and to start the implementation of the project, to wit: xxx

xxx

The Government is provisionally authorized to take the property for public purpose or
public use whenever the court issues a writ of possession in favor of the Government. It may
take possession of the property or effectively deprive the property owner of the ordinary use of
the property. If the court, however, later on determines that the State has no right of
expropriation, then the State shall immediately restore the defendant of the possession of the
property and pay the property owner damages that he sustained. Section 11, Rule 67 of the

51 | P a g e
Rules of Court: Section 11. Entry not delayed by appeal; effect of reversal. - The right of the
plaintiff to enter upon the property of the defendant and appropriate the same for public use or
purpose shall not be delayed by an appeal from the judgment. But if the appellate court
determines that plaintiff has no right of expropriation, judgment shall be rendered ordering the
Regional Trial Court to forthwith enforce the restoration to the defendant of the possession of
the property, and to determine the damages which the defendant sustained and may recover
by reason of the possession taken by the plaintiff. (11a)

The State's taking of the property is not based on trust or contract, but is
founded on its inherent power to appropriate private property for public use. It is
also for this reason - to compensate the property owner for the deprivation of his right to enjoy
the ordinary use of his property until the naked title to the property passed to the State - that
the State pays interest from the time of the taking of the property until full payment of just
compensation. (Republic of the Philippines v. Mupas, et al. G.R. No. 181892, 209917, 209696, 8
September 2015)

Just compensation: The full and fair equivalent of the property taken from its
owner by the expropriator.

2.b. Just compensation is the full and fair equivalent of the property taken from the
owner by the condemnor.

The 1987 Constitution embodies two constitutional safeguards against the arbitrary
exercise of eminent domain: first, private property shall not be taken for public use without just
compensation; and second, no person shall be deprived of life, liberty, or property without due
process of law.

Just compensation is defined as "the full and fair equivalent of the property taken from
its owner by the expropriator." The word "just" is used to qualify the meaning of the word
"compensation" and to convey the idea that the amount to be tendered for the property to be
taken shall be real, substantial, full and ample. On the other hand, the word "compensation"
means "a full indemnity or remuneration for the loss or damage sustained by the owner of
property taken or injured for public use."

Simply stated, just compensation means that the former owner must be returned to the
monetary equivalent of the position that the owner had when the taking occurred. To achieve
this monetary equivalent, we use the standard value of "fair market value" of the property at
the time of the filing of the complaint for expropriation or at the time of the taking of property,
whichever is earlier.

2.b.1. Fair market value is the general standard of value in determining just
compensation.

Jurisprudence broadly defines "fair market value" as the sum of money that a person
desirous but not compelled to buy, and an owner willing but not compelled to sell, would agree
on as a price to be given and received for a property.

Fair market value is not limited to the assessed value of the property or to the schedule
of market values determined by the provincial or city appraisal committee. However, these
values may serve as factors to be considered in the judicial valuation of the property.

Among the factors to be considered in arriving at the fair market value of the property
are the cost of acquisition, the current value of like properties, its actual or potential uses, and
in the particular case of lands, their size, shape, location, and the tax declarations. The measure
is not the taker's gain but the owner's loss. To be just, the compensation must be fair not only
to the owner but also to the taker.

While jurisprudence requires the "fair market value" to be the measure of recovery in
expropriation cases, it is not an absolute and exclusive standard or method of valuation. There
are exceptional cases where the property has no fair market value or where the fair market
value of the property is difficult to determine.

52 | P a g e
 Examples of properties with no or with scant data of their fair market values are
specialized properties or buildings designed for unique purposes. These specialized properties
bear these characteristics because they are "rarely x x x sold in the market, except by way of
sale of the business or entity of which it is part, due to the uniqueness arising from its
specialized nature and design, its configuration, size, location, or otherwise."

Examples of specialized properties are churches, colleges, cemeteries, and clubhouses.

These also include airport terminals that are specifically built as "a place where aircrafts land
and take off and where there are buildings for passengers to wait in and for aircraft to be
sheltered." They are all specialized properties because they are not usually sold in the ordinary
course of trade or business. (Republic of the Philippines v. Mupas, et al. G.R. No. 181892,
209917, 209696, 8 September 2015)

In cases where the fair market value of the property is difficult to ascertain,
the court may use other just and equitable market methods of valuation in order to
estimate the fair market value of a property.

2.b.2. Replacement cost is a different standard of value from fair market value.

In Gingoyon, we held that the construction of the NAIA-IPT III involves the
implementation of a national infrastructure project. Thus, for purposes of determining the just
compensation of the NAIA-IPT III, RA 8974 and its implementing rules shall be the governing
law.
xxx

Replacement cost is a different standard of valuation from the fair market value. As we
previously stated, fair market value is the price at which a property may be sold by a seller who
is not compelled to sell and bought by a buyer who is not compelled to buy. In contrast,
replacement cost is "the amount necessary to replace the improvements/structures, based on
the current market prices for materials, equipment, labor, contractor's profit and overhead, and
all other attendant costs associated with the acquisition and installation in place of the affected
improvements/structures." We use the replacement cost method to determine just
compensation if the expropriated property has no market based evidence of its value.

2.b.3. Replacement cost is only one of the standards that the Court shall consider in
appraising the NAIA-IPT III.
xxx

The Court explained in Agan and Gingoyon that the replacement cost method is only
one of the factors to be considered in determining the just compensation of the NAIA-IPT III.
The Court added that the payment of just compensation should be in accordance with equity as
well. (Republic of the Philippines v. Mupas, et al. G.R. No. 181892, 209917, 209696, 8
September 2015)

A city ordinance requiring land owners to setback their fences by five meters
to provide for parking space is tantamount to a taking of private property for public
use without just compensation. The total destruction of value of the property is not
required for a taking to be compensable.

The respondents, thus, sought to prohibit the petitioners [city officials] from requiring
them to (1) demolish their existing concrete wall, (2) build a fence (in excess of one meter)
which must be 80% see-thru, and (3) build the said fence six meters back in order to provide a
parking area.

The Court first turns its attention to Section 5 [of City Ordinance No. 192] which
requires the five-meter setback of the fence to provide for a parking area. The petitioners
initially argued that the ownership of the parking area to be created would remain with the
respondents as it would primarily be for the use of its students and faculty, and that its use by
the public on non-school days would only be incidental. x x x

53 | P a g e
 xxx

The Court joins the CA in finding that the real intent of the setback requirement was to
make the parking space free for use by the public, considering that it would no longer be for
the exclusive use of the respondents as it would also be available for use by the general public.
Section 9 of Article III of the 1987 Constitution, a provision on eminent domain, provides that
private property shall not be taken for public use without just compensation.

The petitioners cannot justify the setback by arguing that the ownership of the property
will continue to remain with the respondents. It is a settled rule that neither the acquisition of
title nor the total destruction of value is essential to taking. In fact, it is usually in cases where
the title remains with the private owner that inquiry should be made to determine whether the
impairment of a property is merely regulated or amounts to a compensable taking. The Court is
of the view that the implementation of the setback requirement would be tantamount to a
taking of a total of 3,762.36 square meters of the respondents private property for public use
without just compensation, in contravention to the Constitution. (Fernando v. St. Scholasticas
College, G.R. No. 161107, March 12, 2013)

Reckonig point for determination of just compensation: "Fair market value"

of the property at the time of the filing of the complaint for expropriation or at the
time of the taking of property, whichever is earlier

The 1987 Constitution embodies two constitutional safeguards against the arbitrary
exercise of eminent domain: first, private property shall not be taken for public use without just
compensation; and second, no person shall be deprived of life, liberty, or property without due
process of law.

Just compensation is defined as "the full and fair equivalent of the property taken from
its owner by the expropriator." The word "just" is used to qualify the meaning of the word
"compensation" and to convey the idea that the amount to be tendered for the property to be
taken shall be real, substantial, full and ample. On the other hand, the word "compensation"
means "a full indemnity or remuneration for the loss or damage sustained by the owner of
property taken or injured for public use."

Simply stated, just compensation means that the former owner must be returned to the
monetary equivalent of the position that the owner had when the taking occurred. To achieve
this monetary equivalent, we use the standard value of "fair market value" of the property at
the time of the filing of the complaint for expropriation or at the time of the taking of property,
whichever is earlier. (Republic v. Mupas, G.R. No. 181892, September 8, 2015)

Computation of interest as part of just compensation: When the taking of the

property precedes the filing of the complaint for expropriation, the Court orders the
condemnor to pay the full amount of just compensation from the date of taking
whose interest shall likewise commence on the same date.

Under Section 4, Rule 67 of the Rules of Court, the property sought to be expropriated
shall be appraised as of the date of taking of the property or the filing of the complaint for
expropriation, whichever is earlier xxx.

On the other hand, Section 9, Article 3 of the 1987 Constitution provides that "[n]o
private property shall be taken for public use without just compensation." The 1987 Constitution
thus commands the condemnor to pay the property owner the full and fair equivalent of the
property from the date of taking. This provision likewise presupposes that the condemnor incurs
delay if it does not pay the property owner the full amount of just compensation on the date of
taking.

The reason is that just compensation would not be "just" if the State does not pay the
property owner interest on the just compensation from the date of the taking of the property.
Without prompt payment, the property owner suffers the immediate deprivation of both his
land and its fruits or income. The owner's loss, of course, is not only his property but also its
income-generating potential.

54 | P a g e
 Ideally, just compensation should be immediately made available to the property owner
so that he may derive income from this compensation, in the same manner that he would have
derived income from his expropriated property.

However, if full compensation is not paid for the property taken, then the State must
pay for the shortfall in the earning potential immediately lost due to the taking, and the
absence of replacement property from which income can be derived. Interest on the unpaid
compensation becomes due as compliance with the constitutional mandate on eminent domain
and as a basic measure of fairness.

Thus, interest in eminent domain cases "runs as a matter of law and follows as a matter
of course from the right of the landowner to be placed in as good a position as money can
accomplish, as of the date of taking."

xxx

The Government's initial payment of just compensation does not excuse it from avoiding
payment of interest on the difference between the adjudged amount of just compensation and
the initial payment.

The initial payment scheme as a prerequisite for the issuance of the writ of possession
under RA 8974 only provides the Government flexibility to immediately take the property for
public purpose or public use pending the court's final determination of just compensation.
Section 4 (a) of RA 8974 only addresses the Government's need to immediately enter the
privately owned property in order to avoid delay in the implementation of national infrastructure
projects.

Otherwise, Section 4 of RA 8974 would be repugnant to Section 9, Article 3 of the 1987

Constitution which mandates that private property shall not be taken for public use without just
compensation. To reiterate, the Constitution commands the Government to pay the property
owner no less than the full and fair equivalent of the property from the date of taking.

In the present case, the Government avers that PIATCO is not entitled to recover
interest. According to the Government, PIATCO should not be allowed to profit from the void
contracts. This contention, however, stems from a mistaken understanding of interest in
expropriation cases.

Contrary to the Government's opinion, the interest award is not anchored either on the
law of contracts or damages; it is based on the owner's constitutional right to just
compensation. The difference in the amount between the final payment and the initial payment
- in the interim or before the judgment on just compensation becomes final and executory - is
not unliquidated damages which do not earn interest until the amount of damages is
established with reasonable certainty. The difference between final and initial payments forms
part of the just compensation that the property owner is entitled from the date of taking of the
property.

Thus, when the taking of the property precedes the filing of the complaint for
expropriation, the Court orders the condemnor to pay the full amount of just compensation
from the date of taking whose interest shall likewise commence on the same date. The Court
does not rule that the interest on just compensation shall commence the date when the amount
of just compensation becomes certain, e.g., from the promulgation of the Court's decision or
the finality of the eminent domain case.

With respect to the amount of interest on just compensation, we decisively ruled in

Republic v. Court of Appeals that the just compensation due to the property owner is effectively
a forbearance of money, and not indemnity for damages. Citing Eastern Shipping Lines, Inc. v.
Court of Appeals,we awarded a legal interest of 12% per annum on just compensation. The
Court upheld the imposition of the 12% interest rate in just compensation cases xxx.

On June 21, 2013, the BSP issued Circular No. 799,355 pursuant to MB Resolution No.
796 dated May 16,2013, reducing the legal interest on loans and forbearance of money from

55 | P a g e
12% to 6% per annum. BSP Circular No. 799 took effect on July 1, 2013. (Republic v. Mupas,
G.R. No. 181892, September 8, 2015)

Requirements for issuance of writ of possession in expropriation

On the matter of issuance of writ of possession, the ruling in the Ignacio case as
reiterated in Sumulong vs. Guerrero states:

"[I]t is imperative that before a writ of possession is issued by the Court in expropriation
proceedings, the following requisites must be met: (1) There must be a Complaint for
expropriation sufficient in form and in substance; (2) A provisional determination of just
compensation for the properties sought to be expropriated must be made by the trial court on
the basis of judicial (not legislative or executive) discretion; and (3) The deposit requirement
under Section 2, Rule 67 must be complied with."

Here, it is even pointless to take up the matter of said requisites for the issuance of writ
of possession considering that, as stated, NO complaint was ever filed in Court AT THE TIME of
the seizure of defendants properties. (National Housing Authority v. Baello, G.R. No. 200858,
August 7, 2013)

Agrarian Reform

The basic law allows two (2) modes of land distribution: direct and indirect
ownership. Direct transfer to individual farmers is the most commonly used method
by DAR and widely accepted. Indirect transfer through collective ownership of the
agricultural land is the alternative. By using the word collectively, the Constitution
allows for indirect ownership of land and not just outright agricultural land transfer.
Thus, allowing corporations or associations to own agricultural land with the
farmers becoming stockholders or members does not violate the agrarian reform
policy under the Constitution.

Sec. 4, Article XIII of the Constitution reads:

The State shall, by law, undertake an agrarian reform program founded on the
right of the farmers and regular farmworkers, who are landless, to OWN directly or
COLLECTIVELY THE LANDS THEY TILL or, in the case of other farmworkers, to receive a
just share of the fruits thereof. To this end, the State shall encourage and undertake the
just distribution of all agricultural lands, subject to such priorities and reasonable
retention limits as the Congress may prescribe, taking into account ecological,
developmental, or equity considerations, and subject to the payment of just
compensation. In determining retention limits, the State shall respect the right of small
landowners. The State shall further provide incentives for voluntary land-sharing.
(Emphasis supplied.)

The wording of the provision is unequivocal the farmers and regular farmworkers have a
right TO OWN DIRECTLY OR COLLECTIVELY THE LANDS THEY TILL. The basic law allows two
(2) modes of land distribution direct and indirect ownership. x x x Indirect transfer through
collective ownership of the agricultural land is the alternative to direct ownership of agricultural
land by individual farmers. The aforequoted Sec. 4 EXPRESSLY authorizes collective ownership
by farmers. x x x By using the word collectively, the Constitution allows for indirect ownership
of land and not just outright agricultural land transfer. x x x

Collective ownership is permitted in two (2) provisions of RA 6657. Its Sec. 29 allows
workers cooperatives or associations to collectively own the land, while the second paragraph
of Sec. 31 allows corporations or associations to own agricultural land with the farmers
becoming stockholders or members.

x x x Sec. 31 is constitutional as it simply implements Sec. 4 of Art. XIII of the

Constitution that land can be owned COLLECTIVELY by farmers. Even the framers of the l987

56 | P a g e
Constitution are in unison with respect to the two (2) modes of ownership of agricultural lands
tilled by farmers DIRECT and COLLECTIVE x x x.

xxx

[T]he stock distribution option devised under Sec. 31 of RA 6657 hews with the agrarian
reform policy, as instrument of social justice under Sec. 4 of Article XIII of the Constitution.
(Hacienda Luisita Incorporated v. Presidential Agrarian Reform Council, G.R. No. 171101, July 5,
2011)

Just Compensation: An action for payment of just compensation is not barred

by laches. Laches as a doctrine of equity does not apply because law and equity
dictate payment of just compensation. Thus, even after the lapse of more than 50
years, a property owner may still file a claim to demand just compensation for the
taking of his property without the benefit of expropriations proceedings.

It is undisputed that the subject property was taken by petitioners without the benefit of
expropriation proceedings for the construction of the MacArthur Highway. After the lapse of
more than fifty years, the property owners sought recovery of the possession of their property.
Is the action barred by prescription or laches? If not, are the property owners entitled to
recover possession or just compensation?

xxx

Even if we squarely deal with the issues of laches and prescription, the same must still
fail. Laches is principally a doctrine of equity which is applied to avoid recognizing a right when
to do so would result in a clearly inequitable situation or in an injustice. This doctrine finds no
application in this case, since there is nothing inequitable in giving due course to respondents
claim. Both equity and the law direct that a property owner should be compensated if his
property is taken for public use. Neither shall prescription bar respondents claim following the
long-standing rule that where private property is taken by the Government for public use
without first acquiring title thereto either through expropriation or negotiated sale, the owners
action to recover the land or the value thereof does not prescribe.

When a property is taken by the government for public use, jurisprudence clearly
provides for the remedies available to a landowner. The owner may recover his property if its
return is feasible or, if it is not, the aggrieved owner may demand payment of just
compensation for the land taken. For failure of respondents to question the lack of
expropriation proceedings for a long period of time, they are deemed to have waived and are
estopped from assailing the power of the government to expropriate or the public use for which
the power was exercised. What is left to respondents is the right of compensation. (Secretary of
the Department of Public Works and Highways v. Spouses Tecson, G.R. No. 179334, July 1,
2013)

An action for payment of just compensation does not prescribe. If private

property is taken by the Government for public use without expropriation
proceedings or negotiated sale, the owners action to recover the land or the value
thereof does not prescribe.

Neither shall prescription bar respondents claim following the long-standing rule "that
where private property is taken by the Government for public use without first acquiring title
thereto either through expropriation or negotiated sale, the owners action to recover the land
or the value thereof does not prescribe."

When a property is taken by the government for public use, jurisprudence clearly
provides for the remedies available to a landowner. The owner may recover his property if its
return is feasible or, if it is not, the aggrieved owner may demand payment of just
compensation for the land taken. For failure of respondents to question the lack of
expropriation proceedings for a long period of time, they are deemed to have waived and are
estopped from assailing the power of the government to expropriate or the public use for which
the power was exercised. What is left to respondents is the right of compensation. (Secretary of

57 | P a g e
the Department of Public Works and Highways v. Spouses Tecson, G.R. No. 179334, July 1,
2013)

The reckoning point for determining just compensation is the value of the
property at the time of taking.

Just compensation must be valued at the time of taking, or the time when the
landowner was deprived of the use and benefit of his property, such as when title is transferred
in the name of the Republic of the Philippines. (Department of Agrarian Reform v. Spouses Sta.
Romana, G.R. No. 183290, July 9, 2014)

Even if the government taking was in 1940, and the action for payment of
just compensation was only filed in 1995, the reckoning point for determining just
compensation is still the value of the property at the time of taking. Thus, just
compensation should be fixed not as of the time of payment but at the time of
taking, that is, in 1940, even though this valuation appear outdated.

Just compensation is "the fair value of the property as between one who receives, and
one who desires to sell, x x x fixed at the time of the actual taking by the government." This
rule holds true when the property is taken before the filing of an expropriation suit, and even if
it is the property owner who brings the action for compensation.

xxx

The Court in the [Forfom Development Corporation [Forfom] v. Philippine National

Railways [PNR], Eusebio v. Luis, Manila International Airport Authority v. Rodriguez, and
Republic v. Sarabia] cases was confronted with common factual circumstances where the
government took control and possession of the subject properties for public use without
initiating expropriation proceedings and without payment of just compensation, while the
landowners failed for a long period of time to question such government act and later instituted
actions for recovery of possession with damages. The Court thus determined the landowners
right to the payment of just compensation and, more importantly, the amount of just
compensation. The Court has uniformly ruled that just compensation is the value of the
property at the time of taking that is controlling for purposes of compensation. x x x As in said
cases, just compensation due respondents in this case should, therefore, be fixed not as of the
time of payment but at the time of taking, that is, in 1940.

The reason for the rule has been clearly explained in Republic v. Lara, et al., and
repeatedly held by the Court in recent cases, thus:

x x x "The value of the property should be fixed as of the date when it was taken
and not the date of the filing of the proceedings." x x x The owner of private property
should be compensated only for what he actually loses; it is not intended that his
compensation shall extend beyond his loss or injury. And what he loses is only the actual
value of his property at the time it is taken x x x.

Both the RTC and the CA recognized that the fair market value of the subject property in
1940 was P0.70/sq m. Hence, it should, therefore, be used in determining the amount due
respondents instead of the higher value which is P1,500.00. While disparity in the above
amounts is obvious and may appear inequitable to respondents as they would be receiving such
outdated valuation after a very long period, it is equally true that they too are remiss in
guarding against the cruel effects of belated claim. The concept of just compensation does not
imply fairness to the property owner alone. Compensation must be just not only to the property
owner, but also to the public which ultimately bears the cost of expropriation.

x x x For said illegal taking, respondents are entitled to adequate compensation in the
form of actual or compensatory damages which in this case should be the legal interest of six
percent (6%) per annum on the value of the land at the time of taking in 1940 until full
payment. This is based on the principle that interest runs as a matter of law and follows from
the right of the landowner to be placed in as good position as money can accomplish, as of the
date of taking. (Secretary of the Department of Public Works and Highways v. Spouses Tecson,
G.R. No. 179334, July 1, 2013)

58 | P a g e
 (AUTHORS NOTE: In his Dissenting Opinion, Justice Velasco wrote:

[I]t is highly unjust and inequitable, as aptly observed by the CA, to pay
respondents just compensation at the rate of PhP 0.70 per square meter, which was
then the value of the subject property in 1940 when the illegal taking was committed.
This injustice and inequity is emphasized by the measly award respondents will receive
now, as the ponencia so rules, after having been deprived of their right to procedural
due process for 55 years with the DPWH disregarding and violating practically all
constitutional, statutory and procedural rules relative to the condemnation of the
subject lot for public use. In effect, despite what respondents have been through, they
are still penalized by the government considering that after 72 years from the time of
the illegal taking of their property, they will only receive a measly amount of just
compensation

Please also note that the ruling in DPWH v. Tecson runs counter to an earlier ruling of
the Supreme Court in Heirs of Pidacan v. Air Transport Authority [G.R. No. 162779, June 15,
2007], wherein the High Tribunal noted that it would be iniquitous to reckon the value of the
property at the time of the taking in 1948. It ruled that justice and fairness dictate that the
appropriate reckoning point for the valuation of petitioners property was when the trial court
made its order of expropriation in 2001.)

The determination of just compensation is a judicial function. Statutes and

executive issuances fixing or providing for the method of computing just
compensation are not binding on courts and, at best, are treated as mere guidelines
in ascertaining the amount thereof.

While a court should take into account the different formula created by the DAR in
arriving at its just compensation valuation, it is not strictly bound thereto. The determination of
just compensation is a judicial function. (Department of Agrarian Reform v. Spouses Sta.
Romana, G.R. No. 183290, July 9, 2014)

In insisting that the just compensation cannot exceed 10% of the market value of the
affected property, Napocor relies heavily on Section 3A of RA No. 6395 x x x.

xxxx

Just compensation has been defined as "the full and fair equivalent of the property
taken from its owner by the expropriator. The measure is not the taker's gain, but the owners
loss. The word just is used to qualify the meaning of the word compensation and to convey
thereby the idea that the amount to be tendered for the property to be taken shall be real,
substantial, full and ample." The payment of just compensation for private property taken for
public use is guaranteed no less by our Constitution and is included in the Bill of Rights. As
such, no legislative enactments or executive issuances can prevent the courts from determining
whether the right of the property owners to just compensation has been violated. It is a judicial
function that cannot "be usurped by any other branch or official of the government." Thus, we
have consistently ruled that statutes and executive issuances fixing or providing for the method
of computing just compensation are not binding on courts and, at best, are treated as mere
guidelines in ascertaining the amount thereof. In National Power Corporation v. Bagui, where
the same petitioner also invoked the provisions of Section 3A of RA No. 6395, we held that:

Moreover, Section 3A-(b) of R.A. No. 6395, as amended, is not binding on the
Court. It has been repeatedly emphasized that the determination of just compensation in
eminent domain cases is a judicial function and that any valuation for just compensation
laid down in the statutes may serve only as a guiding principle or one of the factors in
determining just compensation but it may not substitute the courts own judgment as to
what amount should be awarded and how to arrive at such amount.

This ruling was reiterated in Republic v. Lubinao, National Power Corporation v. Tuazon
and National Power Corporation v. Saludares and continues to be the controlling doctrine.
Notably, in all these cases, Napocor likewise argued that it is liable to pay the property owners
for the easement of right-of-way only and not the full market value of the land traversed by its
transmission lines. But we uniformly held in those cases that since the high-tension electric
current passing through the transmission lines will perpetually deprive the property owners of
the normal use of their land, it is only just and proper to require Napocor to recompense them

59 | P a g e
for the full market value of their property. (National Power Corporation v. Spouses Zabala, G.R.
No. 173520, January 30, 2013)

Just compensation: Interest must be paid in case of delay, to be computed

from the time the property is taken to the time when compensation is actually paid
or deposited with the court.

Constitutionally, "just compensation" is the sum equivalent to the market value of the
property. However, compensation, to be "just," must also be made without delay. The owners
loss is not only his property but also its income-generating potential. Thus, if property is taken
for public use before compensation is deposited with the court having jurisdiction over the case,
the final compensation must include interest[s] on its just value to be computed from the time
the property is taken to the time when compensation is actually paid or deposited with the
court. (Land Bank of the Philippines v. Santiago, G.R. No. 182209, October 3, 2012)

The Court has allowed the grant of legal interest in expropriation cases where there is
delay in the payment since the just compensation due to the landowners was deemed to be an
effective forbearance on the part of the State. Legal interest shall be pegged at the rate of 12%
interest per annum (p.a.). from the time of taking until June 30, 2013 only. Thereafter, or
beginning July 1, 2013, until fully paid, the just compensation due the landowners shall earn
interest at the new legal rate of 6% interest p.a. in line with the amendment introduced by
BSP-MB Circular No. 799,58 series of 2013.59. (Department of Agrarian Reform v. Spouses Sta.
Romana, G.R. No. 183290, July 9, 2014)

TAXATION

A tax has three elements, namely: a) it is an enforced proportional

contribution from persons and properties; b) it is imposed by the State by virtue of
its sovereignty; and c) it is levied for the support of the government. Thus, the
coconut levy funds are in the nature of taxes.

The coconut levy funds are in the nature of taxes and can only be used for public
purpose. Consequently, they cannot be used to purchase shares of stocks to be given for free
to private individuals.

Indeed, We have hitherto discussed, the coconut levy was imposed in the exercise of
the States inherent power of taxation. As We wrote in Republic v. COCOFED:

Indeed, coconut levy funds partake of the nature of taxes, which,

in general, are enforced proportional contributions from persons and properties,
exacted by the State by virtue of its sovereignty for the support of government
and for all public needs.

Based on its definition, a tax has three elements, namely: a) it is an

enforced proportional contribution from persons and properties; b) it is imposed
by the State by virtue of its sovereignty; and c) it is levied for the support of the
government. The coconut levy funds fall squarely into these elements for the
following reasons:

(a) They were generated by virtue of statutory enactments imposed on

the coconut farmers requiring the payment of prescribed amounts. Thus, PD No.
276, which created the Coconut Consumer[s] Stabilization Fund (CCSF),
mandated the following:

a. A levy, initially, of P15.00 per 100 kilograms of copra resecada

or its equivalent in other coconut products, shall be imposed on every
first sale, in accordance with the mechanics established under RA 6260,
effective at the start of business hours on August 10, 1973.

60 | P a g e
 The proceeds from the levy shall be deposited with the Philippine
National Bank or any other government bank to the account of the
Coconut Consumers Stabilization Fund, as a separate trust fund which
shall not form part of the general fund of the government.

xxx

Like other tax measures, they were not voluntary payments or donations
by the people. They were enforced contributions exacted on pain of penal
sanctions, as provided under PD No. 276:

xxx.

(b) The coconut levies were imposed pursuant to the laws enacted by the
proper legislative authorities of the State. Indeed, the CCSF was collected under
PD No. 276.

(c) They were clearly imposed for a public purpose. There is

absolutely no question that they were collected to advance the
governments avowed policy of protecting the coconut industry. x x x

Taxation is done not merely to raise revenues to support the government,

but also to provide means for the rehabilitation and the stabilization of a
threatened industry, which is so affected with public interest as to be within
the police power of the State.

Even if the money is allocated for a special purpose and raised by

special means, it is still public in character. x x x It cannot be denied that
the coconut industry is one of the major industries supporting the
national economy. x x x (Emphasis Ours)

(Cocofed v. Republic, G.R. Nos. 177857-58, January 24, 2012)

Taxes are imposed only for a public purpose and cannot be used for purely
private purposes or for the exclusive benefit of private persons. The coconut levy
funds are in the nature of taxes and can only be used for public purposes.
Consequently, they cannot be used to purchase shares of stocks to be given for free
to private individuals.

[T]axes are imposed only for a public purpose. They cannot be used for purely private
purposes or for the exclusive benefit of private persons. When a law imposes taxes or levies
from the public, with the intent to give undue benefit or advantage to private persons, or the
promotion of private enterprises, that law cannot be said to satisfy the requirement of public
purpose. x x x

x x x [T]he coconut levy funds were sourced from forced exactions decreed under P.D.
Nos. 232, 276 and 582, among others, with the end-goal of developing the entire coconut
industry. Clearly, to hold therefore, even by law, that the revenues received from the imposition
of the coconut levies be used purely for private purposes to be owned by private individuals in
their private capacity and for their benefit, would contravene the rationale behind the
imposition of taxes or levies.

Needless to stress, courts do not, as they cannot, allow by judicial fiat the conversion of
special funds into a private fund for the benefit of private individuals. In the same vein, We
cannot subscribe to the idea of what appears to be an indirect if not exactly direct conversion of
special funds into private funds, i.e., by using special funds to purchase shares of stocks, which
in turn would be distributed for free to private individuals. Even if these private individuals
belong to, or are a part of the coconut industry, the free distribution of shares of stocks
purchased with special public funds to them, nevertheless cannot be justified. x x x

xxx

61 | P a g e
 In this case, the coconut levy funds were being exacted from copra exporters, oil millers,
desiccators and other end-users of copra or its equivalent in other coconut products. Likewise
so, the funds here were channeled to the purchase of the shares of stock in UCPB. Drawing a
clear parallelism between Gaston and this case, the fact that the coconut levy funds were
collected from the persons or entities in the coconut industry, among others, does not and
cannot entitle them to be beneficial owners of the subject funds or more bluntly, owners
thereof in their private capacity. Parenthetically, the said private individuals cannot own the
UCPB shares of stocks so purchased using the said special funds of the government. (Cocofed
v. Republic, G.R. Nos. 177857-58, January 24, 2012)

CONSTITUTIONAL LAW:
INDIVIDUAL RIGHTS & LIBERTIES

RIGHT TO LIFE

An ordinance to promote the constituents general welfare in terms of

economic benefits cannot override the very basic rights to life, security and safety of
the people. In the absence of any convincing reason that the life, security and safety
of the inhabitants of Manila are no longer put at risk by the presence of the oil
depots in Pandacan, Ordinance No. 8187 in favor of the retention of the oil depots is
invalid and unconstitutional.

These petitions are a sequel to the case of Social Justice Society v. Mayor Atienza, Jr.
(hereinafter referred to asG.R. No. 156052), where the Court found: (1) that the ordinance
subject thereof Ordinance No. 8027 was enacted "to safeguard the rights to life, security
and safety of the inhabitants of Manila;" (2) that it had passed the tests of a valid ordinance;
and (3) that it is not superseded by Ordinance No. 8119. Declaring that it is constitutional and
valid, the Court accordingly ordered its immediate enforcement with a specific directive on the
relocation and transfer of the Pandacan oil terminals.

Highlighting that the Court has so ruled that the Pandacan oil depots should leave,
herein petitioners now seek the nullification of Ordinance No. 8187, which contains provisions
contrary to those embodied in Ordinance No. 8027. xxx

xxx

The petitioners arguments are primarily anchored on the ruling of the Court in G. R. No.
156052 declaring Ordinance No. 8027 constitutional and valid after finding that the presence of
the oil terminals in Pandacan is a threat to the life and security of the people of Manila. xxx

xxx

We see no reason why Ordinance No. 8187 should not be stricken down insofar as the
presence of the oil depots in Pandacan is concerned.

xxx

In G.R. No. 156052, the validity and constitutionality of Ordinance No. 8027 was
declared as a guarantee for the protection of the constitutional right to life of the residents of
Manila. There, the Court said that the enactment of the said ordinance was a valid exercise of
police power with the concurrence of the two requisites: a lawful subject "to safeguard the
rights to life, security and safety of all the inhabitants of Manila;" and a lawful method the
enactment of Ordinance No. 8027 reclassifying the land use from industrial to commercial,
which effectively ends the continued stay of the oil depots in Pandacan.

In the present petitions, the respondents and the oil companies plead that the Pandacan
Terminal has never been one of the targets of terrorist attacks; that the petitions were based
on unfounded fears and mere conjectures; and that the possibility that it would be picked by
the terrorists is nil given the security measures installed thereat.

62 | P a g e
 The intervenors went on to identify the measures taken to ensure the safety of the
people even with the presence of the Pandacan Terminals. xxx

xxx

Even assuming that the respondents and intervenors were correct, the very nature of
the depots where millions of liters of highly flammable and highly volatile products, regardless
of whether or not the composition may cause explosions, has no place in a densely populated
area. xxx

xxx

It is the removal of the danger to life not the mere subdual of risk of catastrophe, that
we saw in and made us favor Ordinance No. 8027. That reason, unaffected by Ordinance No.
8187, compels the affirmance of our Decision in G.R. No. 156052.

In striking down the contrary provisions of the assailed Ordinance relative to the
continued stay of the oil depots, we follow the same line of reasoning used in G.R. No. 156052,
to wit: Ordinance No. 8027 was enacted "for the purpose of promoting sound urban planning,
ensuring health, public safety and general welfare" of the residents of Manila. The Sanggunian
was impelled to take measures to protect the residents of Manila from catastrophic devastation
in case of a terrorist attack on the Pandacan Terminals. Towards this objective, the Sanggunian
reclassified the area defined in the ordinance from industrial to commercial.

xxx

The ordinance was intended to safeguard the rights to life, security and safety of all the
inhabitants of Manila and not just of a particular class. xxx

xxx

In the absence of any convincing reason to persuade this Court that the life, security
and safety of the inhabitants of Manila are no longer put at risk by the presence of the oil
depots, we hold that Ordinance No. 8187 in relation to the Pandacan Terminals is invalid and
unconstitutional.

xxx

Neither is it necessary to discuss at length the test of police power against the assailed
ordinance. Suffice it to state that the objective adopted by the Sangguniang Panlungsod to
promote the constituents general welfare in terms of economic benefits cannot override the
very basic rights to life, security and safety of the people. (Social Justice Society Officers v. Lim,
G.R. No. 187836, November 25, 2014)

DUE PROCESS

The right to due process guards against unwarranted encroachment by the

state into the fundamental rights of its citizens. It cannot be invoked in private
controversies involving private parties. A political party is still a private
organization, not a state instrument. The discipline of members by a political party
does not involve the right to life, liberty or property within the meaning of the due
process clause.

Petitioners Atienza, et al. argue that their expulsion from the party is not a simple issue
of party membership or discipline; it involves a violation of their constitutionally-protected right
to due process of law. They claim that the NAPOLCO and the NECO should have first
summoned them to a hearing before summarily expelling them from the party. According to
Atienza, et al., proceedings on party discipline are the equivalent of administrative proceedings
and are, therefore, covered by the due process requirements laid down in Ang Tibay v. Court of
Industrial Relations.

63 | P a g e
 But the requirements of administrative due process do not apply to the internal affairs of
political parties. The due process standards set in Ang Tibay cover only administrative bodies
created by the state and through which certain governmental acts or functions are
performed. An administrative agency or instrumentality contemplates an authority to which the
state delegates governmental power for the performance of a state function. The constitutional
limitations that generally apply to the exercise of the states powers thus, apply too, to
administrative bodies.

x x x The Bill of Rights, which guarantees against the taking of life, property, or liberty
without due process under Section 1 is generally a limitation on the states powers in relation to
the rights of its citizens. The right to due process is meant to protect ordinary citizens against
arbitrary government action, but not from acts committed by private individuals or entities. In
the latter case, the specific statutes that provide reliefs from such private acts apply. The right
to due process guards against unwarranted encroachment by the state into the fundamental
rights of its citizens and cannot be invoked in private controversies involving private parties.

Although political parties play an important role in our democratic set-up as an

intermediary between the state and its citizens, it is still a private organization, not a state
instrument. The discipline of members by a political party does not involve the right to life,
liberty or property within the meaning of the due process clause. x x x

But even when recourse to courts of law may be made, courts will ordinarily not
interfere in membership and disciplinary matters within a political party. A political party is free
to conduct its internal affairs, pursuant to its constitutionally-protected right to free association.
(Atienza v. Commission on Elections, G.R. No. 188920, February 16, 2010)

The opportunity to be heard through motion for reconsideration is sufficient

compliance with due process.

The essence of due process is simply the opportunity to be heard. What the law
prohibits is not the absence of previous notice but its absolute absence and lack of opportunity
to be heard. Sufficient compliance with the requirements of due process exists when a party is
given a chance to be heard through his motion for reconsideration.

In the present case, we do not find it disputed that the respondents filed with the
Secretary of Justice a motion for reconsideration of her resolution. Therefore, any initial defect
in due process, if any, was cured by the remedy the respondents availed of. (Shu v. Dee, G.R.
No. 182573, April 23, 2014)

There is no violation of due process in an NBI investigation if the respondents

are not given an opportunity to file an answer or submit counter-evidence. The NBI
does not exercise judicial or quasi-judicial powers and its findings are merely
recommendatory.

According to the [Court of Appeals], x x x [i]n the proceedings before the NBI, the
respondents were not furnished a copy of the complaint and were not likewise required to file
their answer or to present countervailing evidence. All the evidence at the NBI level were solely
provided by the petitioner.

xxx

The respondents Comment and Memorandum, they reiterated their argument that they
were prevented from participating in the proceedings before the NBI and the Secretary of
Justice, resulting in the denial of their right to due process.

xxx

On the respondents allegation that they were denied due process during the NBI
investigation, we stress that the functions of this agency are merely investigatory and
informational in nature. It has no judicial or quasi-judicial powers and is incapable of granting
any relief to any party. It cannot even determine probable cause. The NBI is an investigative

64 | P a g e
agency whose findings are merely recommendatory. It undertakes investigation of crimes upon
its own initiative or as public welfare may require in accordance with its mandate. It also
renders assistance when requested in the investigation or detection of crimes in order to
prosecute the persons responsible.

Since the NBIs findings were merely recommendatory, we find that no denial of the
respondents due process right could have taken place; the NBIs findings were still subject to
the prosecutors and the Secretary of Justices actions for purposes of finding the existence of
probable cause. x x x

The respondents were not likewise denied their right to due process when the NBI
issued the questioned documents report. We note that this report merely stated that the
signatures appearing on the two deeds and in the petitioners submitted sample signatures
were not written by one and the same person. Notably, there was no categorical finding in the
questioned documents report that the respondents falsified the documents. This report, too,
was procured during the conduct of the NBIs investigation at the petitioners request for
assistance in the investigation of the alleged crime of falsification. The report is inconclusive
and does not prevent the respondents from securing a separate documents examination
by handwriting experts based on their own evidence. (Shu v. Dee, G.R. No. 182573, April 23,
2014)

The requirements for due process in administrative cases set in the Ang Tibay
case do not apply to preliminary investigations. The purpose of the Office of the
Ombudsman in conducting a preliminary investigation is to determine probable
cause for filing an information, and not to make a final adjudication of the rights
and obligations of the parties. The Ombudsman and the prosecution service are
inherently the fact-finder, investigator, hearing officer, judge and jury of the
respondent in preliminary investigations. There is nothing unconstitutional with this
procedure because this is merely an Executive function, a part of the law
enforcement process leading to trial in court.

We likewise take exception to Justice Brions assertion that "the due process standards
that at the very least should be considered in the conduct of a preliminary investigation are
those that this Court first articulated in Ang Tibay v. Court of Industrial Relations [Ang Tibay]."
Simply put, the Ang Tibay guidelines for administrative cases do not apply to preliminary
investigations in criminal cases. An application of the Ang Tibay guidelines to preliminary
investigations will have absurd and disastrous consequences.

Ang Tibay enumerated the constitutional requirements of due process, which Ang Tibay
described as the "fundamental and essential requirements of due process in trials and
investigations of an administrative character." These requirements are "fundamental and
essential" because without these, there is no due process as mandated by the Constitution.
These "fundamental and essential requirements" cannot be taken away by legislation because
they are part of constitutional due process. These "fundamental and essential requirements"
are:

(1) The first of these rights is the right to a hearing, which includes the right of the
party interested or affected to present his own case and submit evidence in support
thereof. x x x.

(2) Not only must the party be given an opportunity to present his case and adduce
evidence tending to establish the rights which he asserts but the tribunal must consider the
evidence presented. x x x.

(3) "While the duty to deliberate does not impose the obligation to decide right, it
does imply a necessity which cannot be disregarded, namely, that of having something to
support its decision. A decision with absolutely nothing to support it is a nullity, x x x."

(4) Not only must there be some evidence to support a finding or conclusion, but
the evidence must be "substantial." "Substantial evidence is more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." x x x.

(5) The decision must be rendered on the evidence presented at the hearing, or at
least contained in the record and disclosed to the parties affected. x x x.

65 | P a g e
 (6) The Court of Industrial Relations or any of its judges, therefore, must act on its
or his own independent consideration of the law and facts of the controversy, and not
simply accept the views of a subordinate in arriving at a decision. x x x.

(7) The Court of Industrial Relations should, in all controversial questions, render its
decision in sucha manner that the parties to the proceeding can know the various issues
involved, and the reasons for the decisions rendered. The performance of this duty is
inseparable from the authority conferred upon it.

The guidelines set forth in Ang Tibay are further clarified in GSIS v. CA (GSIS): "what
Ang Tibay failed to explicitly state was, prescinding from the general principles governing due
process, the requirement of an impartial tribunal which, needless to say, dictates that one called
upon to resolve a dispute may not sit as judge and jury simultaneously, neither may he review
his decision on appeal." The GSIS clarification affirms the non applicability of the Ang Tibay
guidelines to preliminary investigations in criminal cases: The investigating officer, which is the
role that the Office of the Ombudsman plays in the investigation and prosecution of government
personnel, will never be the impartial tribunal required in Ang Tibay, as amplified in GSIS. The
purpose of the Office of the Ombudsman in conducting a preliminary investigation, after
conducting its own fact finding investigation, is to determine probable cause for filing an
information, and not to m ake a final adjudication of the rights and obligations of the parties
under the law, which is the purpose of the guidelines in Ang Tibay. The investigating officer
investigates, determines probable cause, and prosecutes the criminal case after filing the
corresponding information.

x x x The Ombudsman and the prosecution service under the control and supervision of
the Secretary of the Department of Justice are inherently the fact-finder, investigator, hearing
officer, judge and jury of the respondent in preliminary investigations. Obviously, this procedure
cannot comply with Ang Tibay, as amplified in GSIS. However, there is nothing unconstitutional
with this procedure because this is merely an Executive function, a part of the law enforcement
process leading to trial in court where the requirements mandated in Ang Tibay, as amplified in
GSIS, will apply. This has been the procedure under the 1935, 1973 and 1987 Constitutions. To
now rule that Ang Tibay, as amplified in GSIS, should apply to preliminary investigations will
mean that all past and present preliminary investigations are in gross violation of constitutional
due process. (Estrada v. Office of the Ombudsman, G.R. Nos. 212140-41, January 21, 2015)

The ex-parte issuance of temporary protection order (TPO) - before notice

and hearing - is valid because time is of the essence to prevent further violence.
Moreover, after a TPO is issued, the respondent is afforded an opportunity to
present his side.

R.A. 9262 is not violative of the due process clause of the Constitution. Petitioner
bewails the disregard of R.A. 9262, specifically in the issuance of [Protection Orders], of all
protections afforded by the due process clause of the Constitution. x x x

A protection order is an order issued to prevent further acts of violence against women
and their children, their family or household members, and to grant other necessary reliefs. Its
purpose is to safeguard the offended parties from further harm, minimize any disruption in their
daily life and facilitate the opportunity and ability to regain control of their life.

The scope of reliefs in protection orders is broadened to ensure that the victim or
offended party is afforded all the remedies necessary to curtail access by a perpetrator to the
victim. This serves to safeguard the victim from greater risk of violence; to accord the victim
and any designated family or household member safety in the family residence, and to prevent
the perpetrator from committing acts that jeopardize the employment and support of the victim.
xxx

The rules require that petitions for protection order be in writing, signed and verified by
the petitioner thereby undertaking full responsibility, criminal or civil, for every allegation
therein. Since time is of the essence in cases of VAWC if further violence is to be prevented,
the court is authorized to issue ex parte a TPO after raffle but before notice and hearing when
the life, limb or property of the victim is in jeopardy and there is reasonable ground to believe
that the order is necessary to protect the victim from the immediate and imminent danger of
VAWC or to prevent such violence, which is about to recur.

66 | P a g e
 There need not be any fear that the judge may have no rational basis to issue an ex
parte order. The victim is required not only to verify the allegations in the petition, but also to
attach her witnesses' affidavits to the petition.

The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to
due process. x x x [T]he victim of VAWC may already have suffered harrowing experiences in
the hands of her tormentor, and possibly even death, if notice and hearing were required
before such acts could be prevented. It is a constitutional commonplace that the ordinary
requirements of procedural due process must yield to the necessities of protecting vital public
interests, among which is protection of women and children from violence and threats to their
personal safety and security.

It should be pointed out that when the TPO is issued ex parte, the court shall likewise
order that notice be immediately given to the respondent directing him to file an opposition
within five (5) days from service. x x x The opposition to the petition which the respondent
himself shall verify, must be accompanied by the affidavits of witnesses and shall show cause
why a temporary or permanent protection order should not be issued. It is clear from the
foregoing rules that the respondent of a petition for protection order should be apprised of the
charges imputed to him and afforded an opportunity to present his side. x x x The essence of
due process is to be found in the reasonable opportunity to be heard and submit any evidence
one may have in support of one's defense. (Garcia v. Drilon, G.R. No. 179267, June 25, 2013)

To be heard" does not only mean verbal arguments in court; one may be
heard also through pleadings.

"To be heard" does not only mean verbal arguments in court; one may be heard also
through pleadings. Where opportunity to be heard, either through oral arguments or pleadings,
is accorded, there is no denial of procedural due process. (Garcia v. Drilon, G.R. No. 179267,
June 25, 2013)

Void for vagueness doctrine: Vague laws are void because first, these violate
due process for failure to accord persons fair notice of the conduct to avoid; second,
these leave law enforcers unbridled discretion in carrying out its provisions.

The petitioners contend that the RH Law suffers from vagueness and, thus violates the
due process clause of the Constitution. According to them, Section 23 (a)(l) mentions a "private
health service provider" among those who may be held punishable but does not define who is a
"private health care service provider." They argue that confusion further results since Section 7
only makes reference to a "private health care institution."

xxx

The arguments fail to persuade.

A statute or act suffers from the defect of vagueness when it lacks comprehensible
standards that men of common intelligence must necessarily guess its meaning and differ as to
its application. It is repugnant to the Constitution in two respects: (1) it violates due process for
failure to accord persons, especially the parties targeted by it, fair notice of the conduct to
avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and
becomes an arbitrary flexing of the Government muscle. Moreover, in determining whether the
words used in a statute are vague, words must not only be taken in accordance with their plain
meaning alone, but also in relation to other parts of the statute. It is a rule that every part of
the statute must be interpreted with reference to the context, that is, every part of it must be
construed together with the other parts and kept subservient to the general intent of the whole
enactment.

As correctly noted by the OSG, in determining the definition of "private health care
service provider," reference must be made to Section 4(n) of the RH Law which defines a
"public health service provider," xxx

Further, the use of the term "private health care institution" in Section 7 of the law,
instead of "private health care service provider," should not be a cause of confusion for the
obvious reason that they are used synonymously. (Imbong v. Ochoa, G.R. No. 204819, April 8,
2014)
67 | P a g e
 The JBC policy requiring five years of service as judges of first-level courts
before they can qualify as applicants to second-level courts should have been
published, because it seeks to implement a constitutional provision requiring proven
competence from members of the judiciary.

The petitioner averred that the assailed policy [requiring five years of service as judges
of first-level courts before they can qualify as applicants to second-level courts] violates
procedural due process for lack of publication and non-submission to the University of the
Philippines Law Center Office of the National Administrative Register (ONAR). x x x

Contrary to the petitioners contention, the assailed JBC policy need not be filed in the
ONAR because the publication requirement in the ONAR is confined to issuances of
administrative agencies under the Executive branch of the government. Since the JBC is a body
under the supervision of the Supreme Court, it is not covered by the publication requirements
of the Administrative Code.

Nevertheless, the assailed JBC policy requiring five years of service as judges of first-
level courts before they can qualify as applicants to second-level courts should have been
published. As a general rule, publication is indispensable in order that all statutes, including
administrative rules that are intended to enforce or implement existing laws, attain binding
force and effect. There are, however, several exceptions to the requirement of publication, such
as interpretative regulations and those merely internal in nature, which regulate only the
personnel of the administrative agency and not the public. Neither is publication required of the
so-called letters of instructions issued by administrative superiors concerning the rules or
guidelines to be followed by their subordinates in the performance of their duties.

Here, the assailed JBC policy does not fall within the administrative rules and regulations
exempted from the publication requirement. The assailed policy involves a qualification
standard by which the JBC shall determine proven competence of an applicant. It is not an
internal regulation, because if it were, it would regulate and affect only the members of the JBC
and their staff. Notably, the selection process involves a call to lawyers who meet the
qualifications in the Constitution and are willing to serve in the Judiciary to apply to these
vacant positions. Thus, it is but a natural consequence thereof that potential applicants be
informed of the requirements to the judicial positions, so that they would be able to prepare for
and comply with them.

The Court also noted the fact that in JBC-009, otherwise known as the Rules of the
Judicial and Bar Council, the JBC had put its criteria in writing and listed the guidelines in
determining competence, independence, integrity and probity. x x x

The express declaration of these guidelines in JBC-009, which have been duly published
on the website of the JBC and in a newspaper of general circulation suggests that the JBC is
aware that these are not mere internal rules, but are rules implementing the Constitution that
should be published. Thus, if the JBC were so-minded to add special guidelines for determining
competence of applicants for RTC judges, then it could and should have amended its rules and
published the same. This, the JBC did not do as JBC-009 and its amendatory rule do not have
special guidelines for applicants to the RTC.

Moreover, jurisprudence has held that rules implementing a statute should be published.
Thus, by analogy, publication is also required for the five-year requirement because it seeks to
implement a constitutional provision requiring proven competence from members of the
judiciary. (Villanueva v. Judicial and Bar Council, G.R. No. 211833, April 7, 2015)

Counsels mistake and due process: The general rule is that a client is bound
by the acts, even mistakes, of his counsel in the realm of procedural technique,
unless the reckless or gross negligence of counsel deprives the client of due process
of law. The negligence of counsel must be so gross that the client is deprived of his
day in court. To properly claim gross negligence on the part of the counsel, the
petitioner must show that the counsel was guilty of nothing short of a clear
abandonment of the clients cause.

As to petitioners claim that his right to due process was denied due to his former
counsels error, abuse of discretion or gross incompetence, We find no merit in this claim. Time
and again, this Court has ruled that a client is bound by his counsels conduct, negligence and
68 | P a g e
mistake in handling a case, and to allow a client to disown his counsels conduct would render
proceedings indefinite, tentative, and subject to reopening by the mere subterfuge of replacing
counsel. While this rule has recognized exceptions, We find that there is no reason for this
Court to deviate from the findings of the Sandiganbayan. We held in Gotesco Properties, Inc. v.
Moral:
The general rule is that a client is bound by the acts, even mistakes, of his counsel
in the realm of procedural technique. The basis is the tenet that an act performed by
counsel within the scope of a "general or implied authority" is regarded as an act of the
client. While the application of this general rule certainly depends upon the surrounding
circumstances of a given case, there are exceptions recognized by this Court: "(1) where
reckless or gross negligence of counsel deprives the client of due process of law; (2) when
its application will result in outright deprivation of the clients liberty or property; or (3)
where the interests of justice so require."

The present case does not fall under the said exceptions. In Amil v. Court of
Appeals, the Court held that "to fall within the exceptional circumstance relied upon x x x,
it must be shown that the negligence of counsel must be so gross that the client is
deprived of his day in court. Thus, where a party was given the opportunity to defend its
interests in due course, it cannot be said to have been denied due process of law, for this
opportunity to be heard is the very essence of due process." To properly claim gross
negligence on the part of the counsel, the petitioner must show that the counsel was guilty
of nothing short of a clear abandonment of the clients cause.

In the present case, the Sandiganbayan correctly denied petitioners motion to re-open
the proceedings on the ground of violation of his due process, to wit:

x x x Accused-movant Uyboco cannot attribute any serious misjudgment or fault or

gross incompetence on his counsel alone as the decision not to present further evidence in
his defense bears his conformity as shown by his signature in the said manifestation.

x x x While petitioner claims that he was incorrectly advised by his former counsel that
the presentation of evidence is no longer necessary, this unfortunate mistake cannot qualify as
gross negligence or incompetence that would necessitate a reopening of the proceedings.
(Uyboco v. People, G.R. No. 211703, December 10, 2014)

The failure of the government to produce the semen specimen from a rape
victim does not entitle the accused in a rape case to outright acquittal on the ground
of violation of his right to due process. Due process does not require the State to
preserve the semen specimen from a rape victim although it might be useful to the
accused, unless the latter is able to show bad faith on the part of the prosecution or
the police.

Webb claims, citing Brady v. Maryland, that he is entitled to outright acquittal on the
ground of violation of his right to due process given the States failure to produce on order of
the Court either by negligence or willful suppression the semen specimen taken from Carmela.

The medical evidence clearly established that Carmela was raped and, consistent with
this, semen specimen was found in her. It is true that Alfaro identified Webb in her testimony
as Carmelas rapist and killer but serious questions had been raised about her credibility. At the
very least, there exists a possibility that Alfaro had lied. On the other hand, the semen
specimen taken from Carmela cannot possibly lie. x x x

Still, Webb is not entitled to acquittal for the failure of the State to produce the semen
specimen at this late stage. For one thing, the ruling in Brady v. Maryland that he cites has long
be overtaken by the decision in Arizona v. Youngblood, where the U.S. Supreme Court held that
due process does not require the State to preserve the semen specimen although it might be
useful to the accused unless the latter is able to show bad faith on the part of the prosecution
or the police. Here, the State presented a medical expert who testified on the existence of the
specimen and Webb in fact sought to have the same subjected to DNA test.

For, another, when Webb raised the DNA issue, the rule governing DNA evidence did
not yet exist, the country did not yet have the technology for conducting the test, and no
Philippine precedent had as yet recognized its admissibility as evidence. Consequently, the idea
of keeping the specimen secure even after the trial court rejected the motion for DNA testing
69 | P a g e
did not come up. Indeed, neither Webb nor his co-accused brought up the matter of preserving
the specimen in the meantime. (Alejano v. People, G.R. No. 176389, December 14, 2010)

Due process for military academy cadets: A cadet facing dismissal from the
military academy for misconduct has constitutionally protected private interests
(life, liberty, or property). Hence, disciplinary proceedings conducted within the
bounds of procedural due process is a must. The PMA is not immune from the
strictures of due process.

To say that a PMA cadet surrenders his fundamental human rights, including the right
to due process, is, for petitioners, contrary to the provisions of Section 3, Article II of the 1987
Constitution, Executive Order (E.O.) No. 178 (as amended by E.O. No. 1005), AFP Code of
Ethics, Oath of Cadet Corps to the Honor Code and the Honor System, military professionalism,
and, in general, military culture. x x x Further, under the doctrine of constitutional supremacy,
they can never overpower or defy the 1987 Constitution since the former should yield to the
latter. Petitioners stress that the statement that "a cadet can be compelled to surrender some
civil rights and liberties in order for the Code and System to be implemented" simply pertains to
what cadets have to sacrifice in order to prove that they are men or women of integrity and
honor, such as the right to entertain vices and the right to freely choose what they want to say
or do. In the context of disciplinary investigation, it does not contemplate a surrender of the
right to due process but, at most, refers to the cadets' rights to privacy and to remain silent.

We concur with the stand of petitioners.

Of course, a student at a military academy must be prepared to subordinate his private

interests for the proper functioning of the educational institution he attends to, one that is with
a greater degree than a student at a civilian public school. x x x

x x x [A] cadet facing dismissal from the military academy for misconduct has
constitutionally protected private interests (life, liberty, or property); hence, disciplinary
proceedings conducted within the bounds of procedural due process is a must. For that reason,
the PMA is not immune from the strictures of due process. Where a person's good name,
reputation, honor, or integrity is at stake because of what the government is doing to him, the
minimal requirements of the due process clause must be satisfied. Likewise, the cadet faces far
more severe sanctions of being expelled from a course of college instruction which he or she
has pursued with a view to becoming a career officer and of probably being forever denied that
career.

The cases of Gudani and Kapunan, Jr. are inapplicable as they do not specifically
pertain to dismissal proceedings of a cadet in a military academy due to honor violation. In
Gudani, the Court denied the petition that sought to annul the directive from then President
Gloria Macapagal-Arroyo, which' enjoined petitioners from testifying before the Congress
without her consent. We ruled that petitioners may be subjected to military discipline for their
defiance of a direct order of the AFP Chief of Staff. On the other hand, in Kapunan, Jr., this
Court upheld the restriction imposed on petitioner since the conditions for his "house arrest"
(particularly, that he may not issue any press statements or give any press conference during
the period of his detention) are justified by the requirements of military discipline. In these two
cases, the constitutional rights to information, transparency in matters of public concern, and to
free speech - not to due process clause - were restricted to better serve the greater military
purpose. (Cudia v. The Superintendent of the Philippine Military Academy, G.R. No. 211362,
February 24, 2015)

Procedural safeguards in student disciplinary cases: Due process in

disciplinary cases involving students does not entail proceedings and hearings
similar to those in courts of justice. Proceedings may be summary; cross-
examination is not an essential part of the investigation or hearing; and the
required proof in a student disciplinary action is only substantial evidence. Official
action must meet minimum standards of fairness to the individual, which generally
encompass the right of adequate notice and a meaningful opportunity to be heard.

Ateneo de Manila University v. Capulong x x x held that although both Ang Tibay and
Guzman essentially deal with the requirements of due process, the latter case is more apropos
since it specifically deals with the minimum standards to be satisfied in the imposition of
70 | P a g e
disciplinary sanctions in academic institutions. That Guzman is the authority on the procedural
rights of students in disciplinary cases was reaffirmed by the Court in the fairly recent case of
Go v. Colegio De San Juan De Letran.

In Guzman, the Court held that there are minimum standards which must be met to
satisfy the demands of procedural due process, to wit:

(1) the students must be informed in writing of the nature and cause of any accusation
against them; (2) they shall have the right to answer the charges against them, with the
assistance of counsel, if desired; (3) they shall be informed of the evidence against them; ( 4)
they shall have the right to adduce evidence in their own behalf; and (5) the evidence must be
duly considered by the investigating committee or official designated by the school authorities
to hear and decide the case.

We have been consistent in reminding that due process in disciplinary cases involving
students does not entail proceedings and hearings similar to those prescribed for actions and
proceedings in courts of justice; that the proceedings may be summary; that cross-examination
is not an essential part of the investigation or hearing; and that the required proof in a student
disciplinary action, which is an administrative case, is neither proof beyond reasonable doubt
nor preponderance of evidence but only substantial evidence or "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion."

What is crucial is that official action must meet minimum standards of fairness to the
individual, which generally encompass the right of adequate notice and a meaningful
opportunity to be heard. As held in De La Salle University, Inc. v. Court of Appeals:

Notice and hearing is the bulwark of administrative due process, the right to which
is among the primary rights that must be respected even in administrative proceedings.
The essence of due process is simply an opportunity to be heard, or as applied to
administrative proceedings, an opportunity to explain one's side or an opportunity to seek
reconsideration of the action or ruling complained of. So long as the party is given the
opportunity to advocate her cause or defend her interest in due course, it cannot be said
that there was denial of due process.

A formal trial-type hearing is not, at all times and in all instances, essential to due
process - it is enough that the parties are given a fair and reasonable opportunity to
explain their respective sides of the controversy and to present supporting evidence on
which a fair decision can be based. "To be heard" does not only mean presentation of
testimonial evidence in court - one may also be heard through pleadings and where the
opportunity to be heard through pleadings is accorded, there is no denial of due process.

The PMA Honor Code explicitly recognizes that an administrative proceeding conducted
to investigate a cadet's honor violation need not be clothed with the attributes of a judicial
proceeding.

xxx

In Andrews, the U.S. Court of Appeals held that Wasson and Hagopian are equally
controlling in cases where cadets were separated from the military academy for violation of the
Honor Code. Following the two previous cases, it was ruled that in order to be proper and
immune from constitutional infirmity, a cadet who is sought to be dismissed or separated from
the academy must be afforded a hearing, be apprised of the specific charges against him, and
be given an adequate opportunity to present his or her defense both from the point of view of
time and the use of witnesses and other evidence. Conspicuously, these vital conditions are not
too far from what We have already set in Guzman and the subsequent rulings in Alcuaz v.
Philippine School of Business Administration and De La Salle University, Inc. v. Court of Appeals.

In this case, the investigation of Cadet 1 CL Cudia' s Honor Code violation followed the
prescribed procedure and existing practices in the PMA. He was notified of the Honor Report
from Maj. Hindang. He was then given the opportunity to explain the report against him. He
was informed about his options and the entire process that the case would undergo. The
preliminary investigation immediately followed after he replied and submitted a written
explanation. Upon its completion, the investigating team submitted a written report together
with its recommendation to the HC Chairman. The HC thereafter reviewed the findings and
recommendations. When the honor case was submitted for formal investigation, a new team
was assigned to conduct the hearing. During the formal investigation/hearing, he was informed
of the charge against him and given the right to enter his plea. He had the chance to explain
71 | P a g e
his side, confront the witnesses against him, and present evidence in his behalf. After a
thorough discussion of the HC voting members, he was found to have violated the ' Honor
Code. Thereafter, the guilty verdict underwent the review process at the Academy level - from
the OIC of the HC, to the SJA, to the Commandant of Cadets, and to the PMA Superintendent.
A separate investigation was also conducted by the HTG. Then, upon the directive of the AFP-
GHQ to reinvestigate the case, a review was conducted by the CRAB. Further, a Fact-Finding
Board/Investigation Body composed of the CRAB members and the PMA senior officers was
constituted to conduct a deliberate investigation of the case. Finally, he had the opportunity to
appeal to the President. Sadly for him, all had issued unfavorable rulings. (Cudia v. The
Superintendent of the Philippine Military Academy, G.R. No. 211362, February 24, 2015)

EQUAL PROTECTION

Favoring women over men as victims of violence and abuse is not a violation
of the equal protection clause. The unequal power relationship between women and
men, the fact that women are more likely than men to be victims of violence, and
the widespread gender bias and prejudice against women -- all make for real
differences justifying the classification under the law. These substantial distinctions
are germane to the purpose of preventing violence and abuse against women and
children.

Equal protection simply requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities imposed. The oft-repeated
disquisition in the early case of Victoriano v. Elizalde Rope Workers' Union is instructive:

The guaranty of equal protection of the laws is not a guaranty of equality in the
application of the laws upon all citizens of the state. x x x The equal protection clause does
not forbid discrimination as to things that are different. x x x

The equal protection of the laws clause of the Constitution allows classification. x x
x All that is required of a valid classification is that it be reasonable, which means that the
classification should be based on substantial distinctions which make for real differences;
that it must be germane to the purpose of the law; that it must not be limited to
existing conditions only; and that it must apply equally to each member of the
class. This Court has held that the standard is satisfied if the classification or distinction is
based on a reasonable foundation or rational basis and is not palpably arbitrary. (Emphasis
supplied)

x x x R.A. 9262 x x x did not violate the equal protection clause by favoring women over
men as victims of violence and abuse to whom the State extends its protection.

I. R.A. 9262 rests on substantial distinctions.

The unequal power relationship between women and men; the fact that women are
more likely than men to be victims of violence; and the widespread gender bias and prejudice
against women all make for real differences justifying the classification under the law. x x x

xxx

II. The classification is germane to the purpose of the law.

The distinction between men and women is germane to the purpose of R.A. 9262, which
is to address violence committed against women and children x x x.

xxx

III. The classification is not limited to existing conditions only, and apply equally to all
members.

Moreover, the application of R.A. 9262 is not limited to the existing conditions when it
was promulgated, but to future conditions as well, for as long as the safety and security of
women and their children are threatened by violence and abuse.

R.A. 9262 applies equally to all women and children who suffer violence and abuse.

72 | P a g e
(Garcia v. Drilon, G.R. No. 179267, June 25, 2013)

The lesbian, gay, bisexual, and transgender have the same interest in
participating in the party-list system as other political parties similarly situated.
Hence, laws of general application should apply with equal force to LGBTs;
COMELECs act of differentiating LGBTs from heterosexuals insofar as the party-list
system violates the equal protection clause.

Despite the absolutism of Article III, Section 1 of our Constitution, which provides "nor
shall any person be denied equal protection of the laws," courts have never interpreted the
provision as an absolute prohibition on classification. x x x

Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor
targets a suspect class, we will uphold the classification as long as it bears a rational
relationship to some legitimate government end. In Central Bank Employees Association, Inc. v.
Banko Sentral ng Pilipinas, we declared that "[i]n our jurisdiction, the standard of analysis of
equal protection challenges x x x have followed the rational basis test, coupled with a
deferential attitude to legislative classifications and a reluctance to invalidate a law unless there
is a showing of a clear and unequivocal breach of the Constitution."

The COMELEC posits that the majority of the Philippine population considers homosexual
conduct as immoral and unacceptable, and this constitutes sufficient reason to disqualify the
petitioner. Unfortunately for the respondent, the Philippine electorate has expressed no such
belief. No law exists to criminalize homosexual behavior or expressions or parties about
homosexual behavior. x x x

From the standpoint of the political process, the lesbian, gay, bisexual, and transgender
have the same interest in participating in the party-list system on the same basis as other
political parties similarly situated. State intrusion in this case is equally burdensome. Hence,
laws of general application should apply with equal force to LGBTs, and they deserve to
participate in the party-list system on the same basis as other marginalized and under-
represented sectors.

It bears stressing that our finding that COMELECs act of differentiating LGBTs from
heterosexuals insofar as the party-list system is concerned does not imply that any other law
distinguishing between heterosexuals and homosexuals under different circumstances would
similarly fail. We disagree with the OSGs position that homosexuals are a class in themselves
for the purposes of the equal protection clause. We are not prepared to single out homosexuals
as a separate class meriting special or differentiated treatment. We have not received sufficient
evidence to this effect, and it is simply unnecessary to make such a ruling today. Petitioner
itself has merely demanded that it be recognized under the same basis as all other groups
similarly situated, and that the COMELEC made "an unwarranted and impermissible
classification not justified by the circumstances of the case." (Ang Ladlad LGBT Party v.
Commission on Elections, G.R. No. 190582, April 8, 2010)

The policy of JBC requiring 5 years of service as judges of first-level courts

before they can qualify as applicant to second-level courts does not violate the
equal protection clause. There is a substantial distinction between judges with 5
year experience and those with less than 5 five years. The classification is
reasonable and relevant to its legitimate purpose of selecting those with proven
competence.

The crux of this petition is whether or not the policy of JBC requiring five years of
service as judges of first-level courts before they can qualify as applicant to second-level courts
is constitutional.

There is no question that JBC employs standards to have a rational basis to screen
applicants who cannot be all accommodated and appointed to a vacancy in the judiciary, to
determine who is best qualified among the applicants, and not to discriminate against any
particular individual or class.

The equal protection clause of the Constitution does not require the universal application
of the laws to all persons or things without distinction; what it requires is simply equality among
73 | P a g e
equals as determined according to a valid classification. Hence, the Court has affirmed that if a
law neither burdens a fundamental right nor targets a suspect class, the classification stands as
long as it bears a rational relationship to some legitimate government end.

"The equal protection clause, therefore, does not preclude classification of individuals
who may be accorded different treatment under the law as long as the classification is
reasonable and not arbitrary." "The mere fact that the legislative classification may result in
actual inequality is not violative of the right to equal protection, for every classification of
persons or things for regulation by law produces inequality in some degree, but the law is not
thereby rendered invalid."

That is the situation here. In issuing the assailed policy, the JBC merely exercised its
discretion in accordance with the constitutional requirement and its rules that a member of the
Judiciary must be of proven competence, integrity, probity and independence. x x x The
difference in treatment between lower court judges who have served at least five years and
those who have served less than five years, on the other hand, was rationalized by JBC as
follows:

x x x The assailed criterion or consideration for promotion to a second-level court, which

is five years experience as judge of a first-level court, is a direct adherence to the qualities
prescribed by the Constitution. Placing a premium on many years of judicial experience, the JBC
is merely applying one of the stringent constitutional standards requiring that a member of the
judiciary be of "proven competence." In determining competence, the JBC considers, among
other qualifications, experience and performance.

Based on the JBCs collective judgment, those who have been judges of first-level courts
for five (5) years are better qualified for promotion to second-level courts. It deems length of
experience as a judge as indicative of conversance with the law and court procedure. x x x

xxx

Clearly, the classification created by the challenged policy satisfies the rational basis
test. The foregoing shows that substantial distinctions do exist between lower court judges with
five year experience and those with less than five years of experience, like the petitioner, and
the classification enshrined in the assailed policy is reasonable and relevant to its legitimate
purpose. The Court, thus, rules that the questioned policy does not infringe on the equal
protection clause as it is based on reasonable classification intended to gauge the proven
competence of the applicants. Therefore, the said policy is valid and constitutional. (Villanueva
v. Judicial and Bar Council, G.R. No. 211833, April 7, 2015)

Prohibiting owners of Public Utility Vehicles (PUVs) and transport terminals

from posting election campaign materials violates the equal protection clause. If
owners of private vehicles and other properties are allowed to express their political
ideas and opinion by posting election campaign materials on their properties, there
is no cogent reason to deny the same preferred right to owners of PUVs and
transport terminals.

One of the basic principles on which this government was founded is that of the equality
of right, which is embodied in Section 1, Article III of the 1987 Constitution. "Equal protection
requires that all persons or things similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed. Similar subjects, in other words, should not be treated
differently, so as to give undue favor to some and unjustly discriminate against others."

xxx

Nevertheless, the guaranty of equal protection of the laws is not a guaranty of equality
in the application of the laws to all citizens of the state. Equality of operation of statutes does
not mean their indiscriminate operation on persons merely as such, but on persons according to
the circumstances surrounding them. It guarantees equality, not identity of rights. The
Constitution does not require that things, which are different in fact, be treated in law as
though they were the same. The equal protection clause does not forbid discrimination as to
things that are different.

In order that there can be valid classification so that a discriminatory governmental act
may pass the constitutional norm of equal protection, it is necessary that the four requisites of
74 | P a g e
valid classification be complied with, namely: (1) it must be based upon substantial distinctions;
(2) it must be germane to the purposes of the law; (3) it must not be limited to existing
conditions only; and (4) it must apply equally to all members of the class.

xxx

As regards ownership, there is no substantial distinction between owners of PUVs and

transport terminals and owners of private vehicles and other properties. As already explained,
the ownership of PUVs and transport terminals, though made available for use by the public,
remains private. If owners of private vehicles and other properties are allowed to express their
political ideas and opinion by posting election campaign materials on their properties, there is
no cogent reason to deny the same preferred right to owners of PUVs and transport terminals.
In terms of ownership, the distinction between owners of PUVs and transport terminals and
owners of private vehicles and properties is merely superficial. Superficial differences do not
make for a valid classification.

xxx

Further, classifying owners of PUVs and transport terminals apart from owners of private
vehicles and other properties bears no relation to the stated purpose of Section 7(g) items(5)
and (6) of Resolution No. 9615, i.e., to provide equal time, space and opportunity to candidates
in elections. (1-United Transport Koalisyon [1-Utak] v. Commission on Elections, G.R. No.
206020, April 14, 2015)

UNREASONABLE SEARCHES AND SEIZURES

A proclamation of a state of emergency by a provincial governor cannot serve

as legal basis for general searches and seizures, including warrantless arrests. Even
a declaration of martial law by the President does not suspend the operation of the
Constitution.

On 31 March 2009, Governor Tan issued Proclamation 1-09, declaring a state of

emergency in the province of Sulu. It cited the kidnapping incident [of three members from the
International Committee of the Red Cross] as a ground for the said declaration, describing it as
a terrorist act pursuant to the Human Security Act (R.A. 9372). x x x

In the same Proclamation, respondent Tan called upon the PNP and the CEF to set up
checkpoints and chokepoints, conduct general search and seizures including arrests, and other
actions necessary to ensure public safety. The pertinent portion of the proclamation states:

NOW, THEREFORE, BY VIRTUE OF THE POWERS VESTED IN ME BY LAW, I,

ABDUSAKUR MAHAIL TAN, GOVERNOR OF THE PROVINCE OF SULU, DO HEREBY
DECLARE A STATE OF EMERGENCY IN THE PROVINCE OF SULU, AND CALL ON THE
PHILIPPINE NATIONAL POLICE WITH THE ASSISTANCE OF THE ARMED FORCES OF THE
PHILIPPINES AND THE CIVILIAN EMERGENCY FORCE TO IMPLEMENT THE FOLLOWING:

1. The setting-up of checkpoints and chokepoints in the province;

2. The imposition of curfew for the entire province subject to such Guidelines as
may be issued by proper authorities;

3. The conduct of General Search and Seizure including arrests in the pursuit of
the kidnappers and their supporters; and

4. To conduct such other actions or police operations as may be necessary to

ensure public safety.

xxx

On 1 April 2009, SPO1 Sattal Jadjuli was instructed by his superior to report to
respondent P/SUPT. Julasirim Kasim. Upon arriving at the police station, he was booked, and
interviewed about his relationship to Musin, Jaiton, and Julamin, who were all his deceased
relatives. Upon admitting that he was indeed related to the three, he was detained. After a few
hours, former Punong Barangay Juljahan Awadi, Hadji Hadjirul Bambra, Abdugajir Hadjirul, as
well as PO2 Marcial Hajan, SPO3 Muhilmi Ismula, Punong Barangay Alano Mohammad and

75 | P a g e
jeepney driver Abduhadi Sabdani, were also arrested. The affidavit of the apprehending officer
alleged that they were suspected ASG supporters and were being arrested under Proclamation
1-09. x x x

xxx

Petitioners cite the implementation of "General Search and Seizure including arrests in
the pursuit of the kidnappers and their supporters," as being violative of the constitutional
proscription on general search warrants and general seizures. Petitioners rightly assert that this
alone would be sufficient to render the proclamation void, as general searches and seizures are
proscribed, for being violative of the rights enshrined in the Bill of Rights, particularly:

The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.

In fact, respondent governor has arrogated unto himself powers exceeding even the
martial law powers of the President, because as the Constitution itself declares, "A state of
martial law does not suspend the operation of the Constitution, nor supplant the functioning of
the civil courts or legislative assemblies, nor authorize the conferment of the jurisdiction on
military courts and agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ." (Kulayan v. Tan, G.R. No. 187298, July 03,
2012)

Search warrants: Requirements for validity

The right of a person against unreasonable searches and seizure is recognized and
protected by no less than the Constitution, particularly, Sections 2 and 3(2) of Article III which
provide:
SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place to be searched and the
persons or things to be seized.

SEC. 3. x x x

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible
for any purpose in any proceeding.

Accordingly, Sections 4 and 5, Rule 126 of the Revised Rules on Criminal Procedure laid
down the following requisites for the issuance of a valid search warrant:
SEC. 4. Requisites for issuing search warrant. A search warrant shall not issue except
upon probable cause in connection with one specific offense to be determined personally by the
judge after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the things to be seized which may
be anywhere in the Philippines.

SEC. 5. Examination of complainant; record. The judge must, before issuing the warrant,
personally examine in the form of searching questions and answers, in writing and under oath, the
complainant and the witnesses he may produce on facts personally known to them and attach to the
record their sworn statements, together with the affidavits submitted.

Therefore, the validity of the issuance of a search warrant rests upon the following
factors: (1) it must be issued upon probable cause; (2) the probable cause must be determined
by the judge himself and not by the applicant or any other person; (3) in the determination of
probable cause, the judge must examine, under oath or affirmation, the complainant and such
witnesses as the latter may produce; and (4) the warrant issued must particularly describe the
place to be searched and persons or things to be seized. (People v. Tuan, G.R. No. 176066,
August 11, 2010)

Search warrants: There must be probable cause the existence of such facts
and circumstances which could lead a reasonably discreet and prudent man to

76 | P a g e
believe that an offense has been committed and that the item(s), article(s) or
object(s) sought in connection with said offense is in the place to be searched.
In People v. Aruta, the Court defined probable cause as follows:
Although probable cause eludes exact and concrete definition, it generally signifies a
reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to
warrant a cautious man to believe that the person accused is guilty of the offense with which
he is charged. It likewise refers to the existence of such facts and circumstances which could
lead a reasonably discreet and prudent man to believe that an offense has been committed and
that the item(s), article(s) or object(s) sought in connection with said offense or subject to
seizure and destruction by law is in the place to be searched. (People v. Tuan, G.R. No. 176066,
August 11, 2010)

Search warrant warrants must be based on substantial evidence that the

items are seizable.
Before a search warrant can be issued, it must be shown by substantial evidence that
the items sought are in fact seizable by virtue of being connected with criminal activity, and
that the items will be found in the place to be searched.
A magistrates determination of probable cause for the issuance of a search warrant is
paid great deference by a reviewing court, as long as there was substantial basis for that
determination. Substantial basis means that the questions of the examining judge brought out
such facts and circumstances as would lead a reasonably discreet and prudent man to believe
that an offense has been committed, and the objects in connection with the offense sought to
be seized are in the place sought to be searched. (People v. Tuan, G.R. No. 176066, August 11,
2010)

Search warrants: The judge must

Under Section 2, Article III of the Constitution, the existence of probable cause for the
issuance of a warrant is central to the right, and its existence largely depends on the finding of
the judge conducting the examination.
xxx
[W]hat the Constitution requires is for the judge to conduct an examination under oath
or affirmation of the complainant and the witnesses he may produce, after which he
determines the existence of probable cause for the issuance of the warrant. The examination
requirement was originally a procedural rule found in Section 98 of General Order No. 58,30 but
was elevated as part of the guarantee of the right under the 1935 Constitution. The intent was
to ensure that a warrant is issued not merely on the basis of the affidavits of the complainant
and his witnesses, but only after examination by the judge of the complainant and his
witnesses. As the same examination requirement was adopted in the present Constitution, we
declared that affidavits of the complainant and his witnesses are insufficient to establish the
factual basis for probable cause. Personal examination by the judge of the applicant and his
witnesses is indispensable, and the examination should be probing and exhaustive, not merely
routinary or a rehash of the affidavits.
xxx
Ideally, compliance with the examination requirement is shown by the depositions and
the transcript. In their absence, however, a warrant may still be upheld if there is evidence in
the records that the requisite examination was made and probable cause was based thereon.
There must be, in the records, particular facts and circumstances that were considered by the
judge as sufficient to make an independent evaluation of the existence of probable cause to
justify the issuance of the search warrant.
xxx
Apart from the statement in the search warrant itself, we find nothing in the records of
this case indicating that the issuing judge personally and thoroughly examined the applicant
and his witnesses. The absence of depositions and transcripts of the examination was already
admitted; the application for the search warrant and the affidavits, although acknowledged by
Ogayon himself, could not be found in the records. xxx

77 | P a g e
 The records, therefore, bear no evidence from which we can infer that the requisite
examination was made, and from which the factual basis for probable cause to issue the search
warrant was derived. A search warrant must conform strictly to the constitutional requirements
for its issuance; otherwise, it is void. Based on the lack of substantial evidence that the search
warrant was issued after the requisite examination of the complainant and his witnesses was
made, the Court declares Search Warrant No. AEK 29-2003 a nullity. (Ogayon v. People,
September 2, 2015)

Search warrants: A description of the place to be searched is sufficient if the

officer serving the warrant can, with reasonable effort, ascertain and identify the
place intended and distinguish it from other places in the community. The specific
room in the house to be searched need not be identified.
Equally without merit is accused-appellants assertion that the Search Warrant did not
describe with particularity the place to be searched.
A description of the place to be searched is sufficient if the officer serving the warrant
can, with reasonable effort, ascertain and identify the place intended and distinguish it from
other places in the community. A designation or description that points out the place to be
searched to the exclusion of all others, and on inquiry unerringly leads the peace officers to it,
satisfies the constitutional requirement of definiteness. In the case at bar, the address and
description of the place to be searched in the Search Warrant was specific enough. There was
only one house located at the stated address, which was accused-appellants residence,
consisting of a structure with two floors and composed of several rooms. (People v. Tuan, G.R.
No. 176066, August 11, 2010)

The search must be at the place described in the warrant.

The items were seized by a barangay tanod in a nipa hut, 20 meters away from the
residence of the petitioner. The confiscated items, having been found in a place other than the
one described in the search warrant, can be considered as fruits of an invalid warrantless
search, the presentation of which as an evidence is a violation of petitioner's constitutional
guaranty against unreasonable searches and seizure. (Castillo v. People, G.R. No. 185128,
January 30, 2012)

In a search incident to a lawful arrest, the law requires that there first be a
lawful arrest before a search can be made -- the process cannot be reversed.
In a search incidental to a lawful arrest, as the precedent arrest determines the validity
of the incidental search, the legality of the arrest is questioned in a large majority of these
cases, e.g., whether an arrest was merely used as a pretext for conducting a search. In this
instance, the law requires that there first be a lawful arrest before a search can be made -- the
process cannot be reversed. x x x

xxx

A search as an incident to a lawful arrest is sanctioned by the Rules of Court. It bears

emphasis that the law requires that the search be incidental to a lawful arrest. Therefore it is
beyond cavil that a lawful arrest must precede the search of a person and his belongings; the
process cannot be reversed.

Here, the search preceded the arrest of Sanchez. There was no arrest prior to the
conduct of the search. Arrest is defined under Section 1, Rule 113 of the Rules of Court as the
taking of a person into custody that he may be bound to answer for the commission of an
offense. Under Section 2, of the same rule, an arrest is effected by an actual restraint of the
person to be arrested or by his voluntary submission to the custody of the person making the
arrest. x x x Evidently, what happened in this case was that a search was first undertaken and
then later an arrest was effected based on the evidence produced by the search. (Sanchez v.
People, G.R. No. 204589, November 19, 2014)

78 | P a g e
 For a valid stop-and-frisk search, probable cause is not required but a
genuine reason must exist, in light of the police officer's experience and
surrounding conditions, to warrant the belief that the person detained has weapons
concealed about him.

We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a

"limited protective search of outer clothing for weapons," as laid down in Terry, thus:

We merely hold today that where a police officer observes unusual conduct which leads
him reasonably to conclude in light of his experience that criminal activity may be afoot and
that the persons with whom he is dealing may be armed and presently dangerous, where in the
course of investigating this behavior he identifies himself as a policeman and makes reasonable
inquiries, and where nothing in the initial stages of the encounter serves to dispel his
reasonable fear for his own or others' safety, he is entitled for the protection of himself and
others in the area to conduct a carefully limited search of the outer clothing of such persons in
an attempt to discover weapons which might be used to assault him. Such a search is a
reasonable search under the Fourth Amendment x x x x.

Other notable points of Terry are that while probable cause is not required to conduct a
"stop-and-frisk," it nevertheless holds that mere suspicion or a hunch will not validate a "stop-
and-frisk." A genuine reason must exist, in light of the police officer's experience and
surrounding conditions, to warrant the belief that the person detained has weapons concealed
about him. (Sanchez v. People, G.R. No. 204589, November 19, 2014)

Police officers cannot justify unbridled searches and be shielded by this exception,
unless there is compliance with the "genuine reason" requirement and that the search serves
the purpose of protecting the public. (People v. Cogaed, G.R. No. 200334, July 30, 2014)

[T]here could be no valid "stop-and-frisk" search in the case at bench. Elucidating on

what constitutes "stop-and-frisk" operation and how it is to be carried out, the Court in People
v. Chua wrote:

A stop and frisk was defined as the act of a police officer to stop a citizen on
the street, interrogate him, and pat him for weapon(s) or contraband. The police
officer should properly introduce himself and make initial inquiries, approach and
restrain a person who manifests unusual and suspicious conduct, in order to check the
latters outer clothing for possibly concealed weapons. The apprehending police officer
must have a genuine reason, in accordance with the police officers experience and
the surrounding conditions, to warrant the belief that the person to be held has
weapons (or contraband) concealed about him. It should therefore be emphasized
that a search and seizure should precede the arrest for this principle to apply.

In this jurisdiction, what may be regarded as a genuine reason or a reasonable suspicion

justifying a Terry stop-and-frisk search had been sufficiently illustrated in two cases. In Manalili
v. Court of Appeals and People, a policeman chanced upon Manalili in front of the cemetery
who appeared to be "high" on drugs as he was observed to have reddish eyes and to be
walking in a swaying manner. Moreover, he appeared to be trying to avoid the policemen and
when approached and asked what he was holding in his hands, he tried to resist. When he
showed his wallet, it contained marijuana. The Court held that the policeman had sufficient
reason to accost Manalili to determine if he was actually "high" on drugs due to his suspicious
actuations, coupled with the fact that the area was a haven for drug addicts.

In People v. Solayao, the Court also found justifiable reason for the police to stop and
frisk the accused after considering the following circumstances: the drunken actuations of the
accused and his companions; the fact that his companions fled when they saw the policemen;
and the fact that the peace officers were precisely on an intelligence mission to verify reports
that armed persons where roaming the vicinity. Seemingly, the common thread of these
examples is the presence of more than one seemingly innocent activity, which, taken together,
warranted a reasonable inference of criminal activity. It was not so in the case at bench.

The Court does not find the totality of the circumstances described by SPO1 Amposta as
sufficient to incite a reasonable suspicion that would justify a stop-and-frisk search on Sanchez.
Coming out from the house of a drug pusher and boarding a tricycle, without more, were
innocuous movements, and by themselves alone could not give rise in the mind of an

79 | P a g e
experienced and prudent police officer of any belief that he had shabu in his possession, or that
he was probably committing a crime in the presence of the officer. There was even no
allegation that Sanchez left the house of the drug dealer in haste or that he acted in any other
suspicious manner. There was no showing either that he tried to evade or outmaneuver his
pursuers or that he attempted to flee when the police officers approached him. Truly, his acts
and the surrounding circumstances could not have engendered any reasonable suspicion on the
part of the police officers that a criminal activity had taken place or was afoot.

A stop and frisk was defined as the act of a police officer to stop a citizen on the street,
interrogate him, and pat him for weapon(s) or contraband. The police officer should properly
introduce himself and make initial inquiries, approach and restrain a person who manifests
unusual and suspicious conduct, in order to check the latters outer clothing for possibly
concealed weapons. The apprehending police officer must have a genuine reason, in
accordance with the police officers experience and the surrounding conditions, to warrant the
belief that the person to be held has weapons concealed about him. It should therefore be
emphasized that a search and seizure should precede the arrest for this principle to apply.

Coming out from the house of a drug pusher and boarding a tricycle, without more,
were innocuous movements, and by themselves alone could not give rise in the mind of an
experienced and prudent police officer of any belief that he had shabu in his possession, or that
he was probably committing a crime in the presence of the officer. (Sanchez v. People, G.R. No.
204589, November 19, 2014)

Roadside questioning of a motorist pursuant to a routine traffic stop is not

necessarily an arrest that justifies a warrantless search. Also, a warrantless arrest
cannot be made for an offense penalized by a fine only. Hence, no valid search
incident to a lawful arrest can be made under such circumstances.

At the time that he was waiting for PO3 Alteza to write his citation ticket, petitioner
could not be said to have been "under arrest." There was no intention on the part of PO3 Alteza
to arrest him, deprive him of his liberty, or take him into custody. Prior to the issuance of the
ticket, the period during which petitioner was at the police station may be characterized merely
as waiting time. In fact, as found by the trial court, PO3 Alteza himself testified that the only
reason they went to the police sub-station was that petitioner had been flagged down "almost
in front" of that place. Hence, it was only for the sake of convenience that they were waiting
there. There was no intention to take petitioner into custody.

In Berkemer v. McCarty, the United States (U.S.) Supreme Court discussed at length
whether the roadside questioning of a motorist detained pursuant to a routine traffic stop
should be considered custodial interrogation. The Court held that, such questioning does not fall
under custodial interrogation, nor can it be considered a formal arrest, by virtue of the nature of
the questioning, the expectations of the motorist and the officer, and the length of time the
procedure is conducted.

It also appears that, according to City Ordinance No. 98-012, which was violated by
petitioner, the failure to wear a crash helmet while riding a motorcycle is penalized by a fine
only. Under the Rules of Court, a warrant of arrest need not be issued if the information or
charge was filed for an offense penalized by a fine only. It may be stated as a corollary that
neither can a warrantless arrest be made for such an offense.

This ruling does not imply that there can be no arrest for a traffic violation. Certainly,
when there is an intent on the part of the police officer to deprive the motorist of liberty, or to
take the latter into custody, the former may be deemed to have arrested the motorist. In this
case, however, the officers issuance (or intent to issue) a traffic citation ticket negates the
possibility of an arrest for the same violation.

xxx

[T]here being no valid arrest, the warrantless search that resulted from it was likewise
illegal. (Luz v. People, G.R. No. 197788, February 29, 2012)

The following are requirements for the application of the plain view doctrine:
1) prior justification for an intrusion; 2) discovery is inadvertent; and 3) object is

80 | P a g e
immediately apparent. Contraband inside a match box being held by the person
unlawfully arrested, and which was not readily apparent to the police officers
cannot be validly seized under the plain view doctrine.

Under the plain view doctrine, objects falling in the plain view of an officer who has a
right to be in the position to have that view are subject to seizure and may be presented as
evidence. The plain view doctrine applies when the following requisites concur: (1) the law
enforcement officer in search of the evidence has a prior justification for an intrusion or is in a
position from which he can view a particular area; (2) the discovery of the evidence in plain
view is inadvertent; and (3) it is immediately apparent to the officer that the item he observes
may be evidence of a crime, contraband or otherwise subject to seizure.

Measured against the foregoing standards, it is readily apparent that the seizure of the
subject shabu does not fall within the plain view exception. First, there was no valid intrusion.
As already discussed, Sanchez was illegally arrested. Second, subject shabu was not
inadvertently discovered, and third, it was not plainly exposed to sight. Here, the subject shabu
was allegedly inside a match box being then held by Sanchez and was not readily apparent or
transparent to the police officers. (Sanchez v. People, G.R. No. 204589, November 19, 2014)

Contraband lying outside of a suspects house and exposed to the sight of

police officers serving a search warrant can be seized under the plain view doctrine.

The constitutional prohibition against warrantless searches and seizures admits of

certain exceptions, one of which is seizure of evidence in plain view. Under the plain view
doctrine, objects falling in the "plain view" of an officer, who has a right to be in the position to
have that view, are subject to seizure and may be presented as evidence.

There is no question that the DENR personnel were not armed with a search warrant
when they went to the house of the petitioner. When the DENR personnel arrived at the
petitioners house, the lumbers were lying under the latters house and at the shoreline about
two meters away from the house of the petitioner. It is clear, therefore, that the said lumber is
plainly exposed to sight. Hence, the seizure of the lumber outside the petitioners house falls
within the purview of the plain view doctrine. (Crescencio v People, G.R. No. 205015, November
19, 2014)

Silence is not necessarily a consent to a search but mere passive conformity

given under intimidating or coercive circumstances. The police carry the burden of
showing that the waiver of a constitutional right is one which is knowing,
intelligent, and free from any coercion.

Appellants silence should not be lightly taken as consent to such search. The implied
acquiescence to the search, if there was any, could not have been more than mere passive
conformity given under intimidating or coercive circumstances and is thus considered no
consent at all within the purview of the constitutional guarantee. The prosecution and the police
carry the burden of showing that the waiver of a constitutional right is one which is knowing,
intelligent, and free from any coercion. In all cases, such waivers are not to be presumed.
(People v. Cogaed, G.R. No. 200334, July 30, 2014)

An informants tip that a pot session is going on inside a house is not

sufficient justification for police officers to enter such house to effect an arrest and
seizure without a warrant. Personal knowledge of facts in arrests without warrant
must be based upon probable cause, which means an actual belief or reasonable
grounds of suspicion.

As culled from the testimonies of prosecution witnesses, x x x it appears that on

September 2, 2006, at around 12:45 oclock in the afternoon, PO1 Azardon was on duty at the
Police Community Precinct II along Arellano Street, Dagupan City, when a concerned citizen
entered the precinct and reported that a pot session was going on in the house of accused
Rafael Gonzales (Gonzales) in Trinidad Subdivision, Dagupan City. Upon receipt of the report,

81 | P a g e
PO1 Azardon, PO1 Alejandro Dela Cruz (PO1 Dela Cruz), and members of the Special Weapons
and Tactics (SWAT) team hied to Trinidad Subdivision, Dagupan City. Upon inquiry from people
in the area, the house of Gonzales was located.

As the police officers entered the gate of the house, they saw accused Orlando Doria
(Doria) coming out of the side door and immediately arrested him. Inside the house, they saw
accused Gonzales, Arnold Martinez (A. Martinez), Edgar Dizon (Dizon), and Rezin Martinez (R.
Martinez) in a room. The four were surprised by the presence of the police. In front of them
were open plastic sachets (containing shabu residue), pieces of rolled used aluminum foil and
pieces of used aluminum foil.

xxx

A review of the facts reveal that the arrest of the accused was illegal and the subject
items were confiscated as an incident thereof. According to the testimony of PO1 Azardon and
his Joint Affidavit13 with PO1 Dela Cruz, they proceeded to, and entered, the house of accused
Gonzales based solely on the report of a concerned citizen that a pot session was going on in
said house.

Although this Court has ruled in several dangerous drugs cases that tipped information
is sufficient probable cause to effect a warrantless search, such rulings cannot be applied in the
case at bench because said cases involve either a buy-bust operation or drugs in transit,
basically, circumstances other than the sole tip of an informer as basis for the arrest. None of
these drug cases involve police officers entering a house without warrant to effect arrest and
seizure based solely on an informers tip. The case of People v. Bolasa is informative on this
matter.

In People v. Bolasa, an anonymous caller tipped off the police that a man and a woman
were repacking prohibited drugs at a certain house. The police immediately proceeded to the
house of the suspects. They walked towards the house accompanied by their informer. When
they reached the house, they peeped inside through a small window and saw a man and
woman repacking marijuana. They then entered the house, introduced themselves as police
officers, confiscated the drug paraphernalia, and arrested the suspects. This Court ruled:

The manner by which accused-appellants were apprehended does not fall under
any of the above-enumerated categories. Perforce, their arrest is illegal. First, the arresting
officers had no personal knowledge that at the time of their arrest, accused-appellants had
just committed, were committing, or were about to commit a crime. Second, the arresting
officers had no personal knowledge that a crime was committed nor did they have any
reasonable ground to believe that accused-appellants committed it. Third, accused-
appellants were not prisoners who have escaped from a penal establishment.

Neither can it be said that the objects were seized in plain view. First, there was
no valid intrusion. As already discussed, accused-appellants were illegally arrested. Second,
the evidence, i.e., the tea bags later on found to contain marijuana, was not inadvertently
discovered. The police officers intentionally peeped first through the window before they
saw and ascertained the activities of accused-appellants inside the room. In like manner,
the search cannot be categorized as a search of a moving vehicle, a consented warrantless
search, a customs search, or a stop and frisk; it cannot even fall under exigent and
emergency circumstances, for the evidence at hand is bereft of any such showing.

On the contrary, it indicates that the apprehending officers should have conducted
first a surveillance considering that the identities and address of the suspected culprits
were already ascertained. After conducting the surveillance and determining the existence
of probable cause for arresting accused-appellants, they should have secured a search
warrant prior to effecting a valid arrest and seizure. The arrest being illegal ab initio, the
accompanying search was likewise illegal. Every evidence thus obtained during the illegal
search cannot be used against accused-appellants; hence, their acquittal must follow in
faithful obeisance to the fundamental law.

It has been held that personal knowledge of facts in arrests without warrant must be
based upon probable cause, which means an actual belief or reasonable grounds of suspicion.
The grounds of suspicion are reasonable when the suspicion, that the person to be arrested is
probably guilty of committing an offense, is based on actual facts, that is, supported by

82 | P a g e
circumstances sufficiently strong in themselves to create the probable cause of guilt of the
person to be arrested. (People v. Martinez, G.R. No. 191366, December 13, 2010)

Evidence cannot be considered inadvertently discovered for purposes of

seizure of evidence in plain view if the police officers intentionally entered the
house with no prior surveillance or investigation.

Neither can it be said that the subject items were seized in plain view. The elements of
plain view are: (a) a prior valid intrusion based on the valid warrantless arrest in which the
police are legally present in the pursuit of their official duties; (b) the evidence was
inadvertently discovered by the police who have the right to be where they are; (c) the
evidence must be immediately apparent; and, (d) "plain view" justified mere seizure of evidence
without further search.

The evidence was not inadvertently discovered as the police officers intentionally
entered the house with no prior surveillance or investigation before they discovered the accused
with the subject items. If the prior peeking of the police officers in Bolasa was held to be
insufficient to constitute plain view, then more so should the warrantless search in this case be
struck down. Neither can the search be considered as a search of a moving vehicle, a
consented warrantless search, a customs search, a stop and frisk, or one under exigent and
emergency circumstances.

The apprehending officers should have first conducted a surveillance considering that
the identity and address of one of the accused were already ascertained. After conducting the
surveillance and determining the existence of probable cause, then a search warrant should
have been secured prior to effecting arrest and seizure. The arrest being illegal, the ensuing
search as a result thereof is likewise illegal. Evidence procured on the occasion of an
unreasonable search and seizure is deemed tainted for being the proverbial fruit of a poisonous
tree and should be excluded. (People v. Martinez, G.R. No. 191366, December 13, 2010)

Airport security searches are valid even without a warrant, because of their
minimal intrusiveness, the gravity of the safety interests involved, and the reduced
privacy expectations associated with airline travel.

[T]he prosecution has satisfactorily established that airport security officers found in the
person of petitioner the marijuana fruiting tops contained in rolled paper sticks during the final
security check at the airports pre-departure area. Petitioner at first refused to show the
contents of his short pants pocket to Soriano who became suspicious when his hand felt the
"slightly bulging" item while frisking petitioner.

In People v. Johnson, which also involved seizure of a dangerous drug from a passenger
during a routine frisk at the airport, this Court ruled that such evidence obtained in a
warrantless search was acquired legitimately pursuant to airport security procedures, thus:

Persons may lose the protection of the search and seizure clause by exposure of their
persons or property to the public in a manner reflecting a lack of subjective expectation of
privacy, which expectation society is prepared to recognize as reasonable. Such recognition is
implicit in airport security procedures. With increased concern over airplane hijacking and
terrorism has come increased security at the nations airports. Passengers attempting to board
an aircraft routinely pass through metal detectors; their carry-on baggage as well as checked
luggage are routinely subjected to x-ray scans. Should these procedures suggest the presence
of suspicious objects, physical searches are conducted to determine what the objects are. There
is little question that such searches are reasonable, given their minimal intrusiveness, the
gravity of the safety interests involved, and the reduced privacy expectations associated with
airline travel. Indeed, travelers are often notified through airport public address systems, signs,
and notices in their airline tickets that they are subject to search and, if any prohibited materials
or substances are found, such would be subject to seizure. These announcements place
passengers on notice that ordinary constitutional protections against warrantless searches and
seizures do not apply to routine airport procedures.

83 | P a g e
 xxx

We find no irregularity in the search conducted on petitioner who was asked to empty
the contents of his pockets upon the friskers reasonable belief that what he felt in his hand
while frisking petitioners short pants was a prohibited or illegal substance.

Such search was made pursuant to routine airport security procedure, which is allowed
under Section 9 of R.A. No. 6235. Said provision reads:

SEC. 9. Every ticket issued to a passenger by the airline or air carrier concerned shall
contain among others the following condition printed thereon: "Holder hereof and his hand-carried
luggage(s) are subject to search for, and seizure of, prohibited materials or substances. Holder
refusing to be searched shall not be allowed to board the aircraft," which shall constitute a part of
the contract between the passenger and the air carrier. (Italics in the original)

The ruling in People v. Johnson was applied in People v. Canton where the accused, a
female passenger was frisked at the NAIA after passing through the metal detector booth that
emitted a beeping sound. Since the frisker noticed something bulging at accuseds abdomen,
thighs and genital area, which felt like packages containing rice granules, accused was
subjected to a thorough physical examination inside the ladies room. Three sealed packages
were taken from accuseds body which when submitted for laboratory examination yielded
positive results for methamphetamine hydrochloride or shabu. Accused was forthwith arrested
and prosecuted for illegal possession of a regulated drug.

Affirming accused Cantons conviction for the crime of illegal possession of shabu, we
ruled that accused-appellant was lawfully arrested without a warrant after being caught in
flagrante delicto. We further held that the scope of a search pursuant to airport security
procedure is not confined only to search for weapons under the "Terry search" doctrine. The
more extensive search conducted on accused Canton was necessitated by the discovery of
packages on her body, her apprehensiveness and false statements which aroused the suspicion
of the frisker that she was hiding something illegal. Thus:

x x x. It must be repeated that R.A. No. 6235 authorizes search for prohibited
materials or substances. To limit the action of the airport security personnel to simply
refusing her entry into the aircraft and sending her home (as suggested by appellant), and
thereby depriving them of "the ability and facility to act accordingly, including to further
search without warrant, in light of such circumstances, would be to sanction impotence
and ineffectivity in law enforcement, to the detriment of society." Thus, the strip search in
the ladies room was justified under the circumstances. (Emphasis supplied)

The search of the contents of petitioners short pants pockets being a valid search
pursuant to routine airport security procedure, the illegal substance (marijuana) seized from
him was therefore admissible in evidence. Petitioners reluctance to show the contents of his
short pants pocket after the friskers hand felt the rolled papers containing marijuana, and his
nervous demeanor aroused the suspicion of the arresting officers that he was indeed carrying
an item or material subject to confiscation by the said authorities. (Sales v. People, G.R. No.
191023, February 06, 2013)

To establish a violation of ones right against unreasonable searches and

seizures, one must first prove that he has exhibited an actual (subjective)
expectation of privacy in the place searched or the item seized; and second, his
subjective expectation is one that society is prepared to recognize as reasonable
(objective).

The right to privacy has been accorded recognition in this jurisdiction as a facet of the
right protected by the guarantee against unreasonable search and seizure under Section 2,
Article III of the 1987 Constitution, which provides:

SEC. 2. The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.
84 | P a g e
 The constitutional guarantee is not a prohibition of all searches and seizures but only of
unreasonable searches and seizures. x x x

The constitutional guarantee is not a prohibition of all searches and seizures but only of
unreasonable searches and seizures. But to fully understand this concept and application for the
purpose of resolving the issue at hand, it is essential that we examine the doctrine in the light
of pronouncements in another jurisdiction. As the Court declared in People v. Marti:

Our present constitutional provision on the guarantee against unreasonable

search and seizure had its origin in the 1935 Charter which, x x x was in turn derived
almost verbatim from the Fourth Amendment to the United States Constitution. As such,
the Court may turn to the pronouncements of the United States Federal Supreme Court
and State Appellate Courts which are considered doctrinal in this jurisdiction.

In the 1967 case of Katz v. United States, the US Supreme Court held that the act of FBI
agents in electronically recording a conversation made by petitioner in an enclosed public
telephone booth violated his right to privacy and constituted a search and seizure. Because the
petitioner had a reasonable expectation of privacy in using the enclosed booth to make a
personal telephone call, the protection of the Fourth Amendment extends to such area. In the
concurring opinion of Mr. Justice Harlan, it was further noted that the existence of privacy right
under prior decisions involved a two-fold requirement: first, that a person has exhibited an
actual (subjective) expectation of privacy; and second, that the expectation be one that society
is prepared to recognize as reasonable (objective). (Pollo v. Constantino-David, G.R. No.
181881, October 18, 2011)

A government employees expectation of privacy in a regulated office

environment is reduced. The employees privacy interest in an office is to a large
extent limited by the companys work policies, the collective bargaining agreement,
if any, and the inherent right of the employer to maintain discipline and efficiency in
the workplace.

In Mancusi v. DeForte which addressed the reasonable expectations

of private employees in the workplace, the US Supreme Court held that a union employee had
Fourth Amendment rights with regard to an office at union headquarters that he shared with
other union officials, even as the latter or their guests could enter the office. The Court thus
recognized that employees may have a reasonable expectation of privacy against intrusions by
police.

That the Fourth Amendment equally applies to a government workplace was addressed
in the 1987 case of OConnor v. Ortega where a physician, Dr. Magno Ortega, who was
employed by a state hospital, claimed a violation of his Fourth Amendment rights when hospital
officials investigating charges of mismanagement of the psychiatric residency program, sexual
harassment of female hospital employees and other irregularities involving his private patients
under the state medical aid program, searched his office and seized personal items from his
desk and filing cabinets. In that case, the Court categorically declared that [i]ndividuals do not
lose Fourth Amendment rights merely because they work for the government instead of a
private employer. A plurality of four Justices concurred that the correct analysis has two steps:
first, because some government offices may be so open to fellow employees or the public that
no expectation of privacy is reasonable, a court must consider [t]he operational realities of the
workplace in order to determine whether an employees Fourth Amendment rights are
implicated; and next, where an employee has a legitimate privacy expectation, an employers
intrusion on that expectation for noninvestigatory, work-related purposes, as well as for
investigations of work-related misconduct, should be judged by the standard of reasonableness
under all the circumstances.

On the matter of government employees reasonable expectations of privacy in their

workplace, OConnor teaches:

85 | P a g e
 x x x Public employees expectations of privacy in their offices, desks, and file
cabinets, like similar expectations of employees in the private sector, may be reduced by
virtue of actual office practices and procedures, or by legitimate regulation. x x x The
employees expectation of privacy must be assessed in the context of the employment
relation. x x x Simply put, it is the nature of government offices that others such as
fellow employees, supervisors, consensual visitors, and the general public may have
frequent access to an individuals office. We agree with JUSTICE SCALIA that
[c]onstitutional protection against unreasonable searches by the government does not
disappear merely because the government has the right to make reasonable intrusions in
its capacity as employer, x x x but some government offices may be so open to
fellow employees or the public that no expectation of privacy is reasonable. x x
x Given the great variety of work environments in the public sector, the
question of whether an employee has a reasonable expectation of privacy
must be addressed on a case-by-case basis. (Citations omitted; emphasis supplied.)

On the basis of the established rule in previous cases, the US Supreme Court declared
that Dr. Ortegas Fourth Amendment rights are implicated only if the conduct of the hospital
officials infringed an expectation of privacy that society is prepared to consider as
reasonable. Given the undisputed evidence that respondent Dr. Ortega did not share his desk or
file cabinets with any other employees, kept personal correspondence and other private items in
his own office while those work-related files (on physicians in residency training) were stored
outside his office, and there being no evidence that the hospital had established any reasonable
regulation or policy discouraging employees from storing personal papers and effects in their
desks or file cabinets (although the absence of such a policy does not create any expectation of
privacy where it would not otherwise exist), the Court concluded that Dr. Ortega has a
reasonable expectation of privacy at least in his desk and file cabinets.

Proceeding to the next inquiry as to whether the search conducted by hospital officials
was reasonable, the OConnor plurality decision discussed the following principles:

Having determined that Dr. Ortega had a reasonable expectation of privacy in his
office, the Court of Appeals simply concluded without discussion that the search was not
a reasonable search under the fourth amendment. x x x [t]o hold that the Fourth
Amendment applies to searches conducted by [public employers] is only to begin the
inquiry into the standards governing such searches[W]hat is reasonable depends on the
context within which a search takes place. x x x Thus, we must determine the
appropriate standard of reasonableness applicable to the search. A determination of the
standard of reasonableness applicable to a particular class of searches requires
balanc[ing] the nature and quality of the intrusion on the individuals Fourth Amendment
interests against the importance of the governmental interests alleged to justify the
intrusion. x x x In the case of searches conducted by a public employer, we must
balance the invasion of the employees legitimate expectations of privacy
against the governments need for supervision, control, and the efficient
operation of the workplace.

xxxx

In our view, requiring an employer to obtain a warrant whenever the employer

wished to enter an employees office, desk, or file cabinets for a work-related purpose
would seriously disrupt the routine conduct of business and would be unduly
burdensome. Imposing unwieldy warrant procedures in such cases upon supervisors,
who would otherwise have no reason to be familiar with such procedures, is simply
unreasonable. In contrast to other circumstances in which we have required warrants,
supervisors in offices such as at the Hospital are hardly in the business of investigating
the violation of criminal laws. Rather, work-related searches are merely incident to the
primary business of the agency. Under these circumstances, the imposition of a warrant
requirement would conflict with the common-sense realization that government offices
could not function if every employment decision became a constitutional matter. x x x

xxxx

The governmental interest justifying work-related intrusions by public employers

is the efficient and proper operation of the workplace. Government agencies provide
myriad services to the public, and the work of these agencies would suffer if employers
were required to have probable cause before they entered an employees desk for the
purpose of finding a file or piece of office correspondence. Indeed, it is difficult to give
the concept of probable cause, rooted as it is in the criminal investigatory context, much
86 | P a g e
 meaning when the purpose of a search is to retrieve a file for work-related
reasons. Similarly, the concept of probable cause has little meaning for a routine
inventory conducted by public employers for the purpose of securing state property. x x x
To ensure the efficient and proper operation of the agency, therefore, public employers
must be given wide latitude to enter employee offices for work-related, noninvestigatory
reasons.

We come to a similar conclusion for searches conducted pursuant to an

investigation of work-related employee misconduct. Even when employers conduct an
investigation, they have an interest substantially different from the normal need for law
enforcement. x x x Public employers have an interest in ensuring that their agencies
operate in an effective and efficient manner, and the work of these agencies inevitably
suffers from the inefficiency, incompetence, mismanagement, or other work-related
misfeasance of its employees. Indeed, in many cases, public employees are entrusted
with tremendous responsibility, and the consequences of their misconduct or
incompetence to both the agency and the public interest can be severe. In contrast to
law enforcement officials, therefore, public employers are not enforcers of the criminal
law; instead, public employers have a direct and overriding interest in ensuring that the
work of the agency is conducted in a proper and efficient manner. In our view,
therefore, a probable cause requirement for searches of the type at issue here
would impose intolerable burdens on public employers. The delay in correcting
the employee misconduct caused by the need for probable cause rather than
reasonable suspicion will be translated into tangible and often irreparable
damage to the agencys work, and ultimately to the public interest. x x x

xxxx

In sum, we conclude that the special needs, beyond the normal need for
law enforcement make the probable-cause requirement impracticable, x x x
for legitimate, work-related noninvestigatory intrusions as well as
investigations of work-related misconduct. A standard of reasonableness will
neither unduly burden the efforts of government employers to ensure the efficient and
proper operation of the workplace, nor authorize arbitrary intrusions upon the privacy of
public employees. We hold, therefore, that public employer intrusions on the
constitutionally protected privacy interests of government employees for
noninvestigatory, work-related purposes, as well as for investigations of
work-related misconduct, should be judged by the standard of
reasonableness under all the circumstances. Under this reasonableness
standard, both the inception and the scope of the intrusion must be reasonable:

Determining the reasonableness of any search involves a twofold inquiry:

first, one must consider whether the action was justified at its inception,
x x x ; second, one must determine whether the search as actually
conducted was reasonably related in scope to the circumstances which
justified the interference in the first place, x x x

Ordinarily, a search of an employees office by a supervisor will be

justified at its inception when there are reasonable grounds for suspecting
that the search will turn up evidence that the employee is guilty of work-
related misconduct, or that the search is necessary for a noninvestigatory
work-related purpose such as to retrieve a needed file. x x x The search will be
permissible in its scope when the measures adopted are reasonably related to
the objectives of the search and not excessively intrusive in light of the nature
of the [misconduct]. x x x (Citations omitted; emphasis supplied.)

xxx

In OConnor the Court recognized that special needs authorize warrantless searches
involving public employees for work-related reasons. The Court thus laid down a balancing test
under which government interests are weighed against the employees reasonable expectation
of privacy. This reasonableness test implicates neither probable cause nor the warrant
requirement, which are related to law enforcement.

xxx

This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board which involved the
constitutionality of a provision in R.A. No. 9165 requiring mandatory drug testing of candidates
for public office, students of secondary and tertiary schools, officers and employees of public
87 | P a g e
and private offices, and persons charged before the prosecutors office with certain offenses,
have also recognized the fact that there may be such legitimate intrusion of privacy in the
workplace.

The first factor to consider in the matter of reasonableness is the nature

of the privacy interest upon which the drug testing, which effects a search within
the meaning of Sec. 2, Art. III of the Constitution, intrudes. x x x The
employees privacy interest in an office is to a large extent
circumscribed by the companys work policies, the collective
bargaining agreement, if any, entered into by management and the
bargaining unit, and the inherent right of the employer to maintain
discipline and efficiency in the workplace. Their privacy expectation in a
regulated office environment is, in fine, reduced; and a degree of impingement
upon such privacy has been upheld. (Emphasis supplied.)

(Pollo v. Constantino-David, G.R. No. 181881, October 18, 2011)

A government employee cannot have a subjective expectation of privacy in

his government-issued computer containing his personal files, if the government
office implemented a policy that put its employees on notice that they have no
expectation of privacy in anything they create, store, send or receive on the office
computers.

Applying the analysis and principles announced in OConnor and Simons to the case at
bar, we now address the following questions: (1) Did petitioner have a reasonable expectation
of privacy in his office and computer files?; and (2) Was the search authorized by the CSC
Chair, the copying of the contents of the hard drive on petitioners computer reasonable in its
inception and scope?

In this inquiry, the relevant surrounding circumstances to consider include (1) the
employees relationship to the item seized; (2) whether the item was in the immediate control
of the employee when it was seized; and (3) whether the employee took actions to maintain his
privacy in the item. These factors are relevant to both the subjective and objective prongs of
the reasonableness inquiry, and we consider the two questions together. Thus, where the
employee used a password on his computer, did not share his office with co-workers and kept
the same locked, he had a legitimate expectation of privacy and any search of that space and
items located therein must comply with the Fourth Amendment.

We answer the first in the negative. Petitioner failed to prove that he had an actual
(subjective) expectation of privacy either in his office or government-issued computer which
contained his personal files. Petitioner did not allege that he had a separate enclosed office
which he did not share with anyone, or that his office was always locked and not open to other
employees or visitors. Neither did he allege that he used passwords or adopted any means to
prevent other employees from accessing his computer files. On the contrary, he submits that
being in the public assistance office of the CSC-ROIV, he normally would have visitors in his
office like friends, associates and even unknown people, whom he even allowed to use his
computer which to him seemed a trivial request. He described his office as full of people, his
friends, unknown people and that in the past 22 years he had been discharging his functions at
the PALD, he x x x hardly had any time for himself alone, that in fact he stays in the office as a
paying customer. Under this scenario, it can hardly be deduced that petitioner had such
expectation of privacy that society would recognize as reasonable.

Moreover, even assuming arguendo, in the absence of allegation or proof of the

aforementioned factual circumstances, that petitioner had at least a subjective expectation of
privacy in his computer as he claims, such is negated by the presence of policy regulating the
use of office computers, as in Simons.

Office Memorandum No. 10, S. 2002 Computer Use Policy (CUP) explicitly provides:

POLICY

88 | P a g e
 1. The Computer Resources are the property of the Civil Service
Commission and may be used only for legitimate business purposes.
2. Users shall be permitted access to Computer Resources to assist them
in the performance of their respective jobs.
3. Use of the Computer Resources is a privilege that may be revoked at
any given time.

xxxx

No Expectation of Privacy

4. No expectation of privacy. Users except the Members of the Commission

shall not have an expectation of privacy in anything they create, store, send, or
receive on the computer system.

The Head of the Office for Recruitment, Examination and Placement shall
select and assign Users to handle the confidential examination data and processes.

5. Waiver of privacy rights. Users expressly waive any right to privacy

in anything they create, store, send, or receive on the computer through the
Internet or any other computer network. Usersunderstand that the CSC may use
human or automated means to monitor the use of its Computer
Resources.

6. Non-exclusivity of Computer Resources. A computer resource is not a

personal property or for the exclusive use of a User to whom a memorandum of
receipt (MR) has been issued. It can be shared or operated by other
users. However, he is accountable therefor and must insure its care and
maintenance.

xxxx

Passwords

xxx

13. Passwords do not imply privacy. Use of passwords to gain access to

the computer system or to encode particular files or messages does not imply
that Users have an expectation of privacy in the material they create or receive on
the computer system. xxx

x x x x (Emphasis supplied.)

The CSC in this case had implemented a policy that put its employees on notice that
they have no expectation of privacy in anything they create, store, send or receive on the
office computers, and that the CSC may monitor the use of the computer resources using both
automated or human means. This implies that on-the-spot inspections may be done to ensure
that the computer resources were used only for such legitimate business purposes. (Pollo v.
Constantino-David, G.R. No. 181881, October 18, 2011)

A warrantless search by a government employer of an employees office is

justified at inception when there are reasonable grounds for suspecting that it will
turn up evidence that the employee is guilty of work-related misconduct. Thus, a
search of a government employees files in the government-issued computer,
conducted in connection with investigation of work-related misconduct prompted by
an anonymous letter-complaint -- is reasonable.

As to the second point of inquiry on the reasonableness of the search conducted on

petitioners computer, we answer in the affirmative.

The search of petitioners computer files was conducted in connection with investigation
of work-related misconduct prompted by an anonymous letter-complaint addressed to
Chairperson David regarding anomalies in the CSC-ROIV where the head of the Mamamayan
Muna Hindi Mamaya Na division is supposedly lawyering for individuals with pending cases in
the CSC. x x x
89 | P a g e
 xxxx

A search by a government employer of an employees office is justified at inception

when there are reasonable grounds for suspecting that it will turn up evidence that the
employee is guilty of work-related misconduct. x x x

Under the facts obtaining, the search conducted on petitioners computer was justified at
its inception and scope. We quote with approval the CSCs discussion on the reasonableness of
its actions, consistent as it were with the guidelines established by OConnor:

Even conceding for a moment that there is no such administrative policy, there is
no doubt in the mind of the Commission that the search of Pollos computer has
successfully passed the test of reasonableness for warrantless searches in the workplace
as enunciated in the above-discussed American authorities. It bears emphasis that the
Commission pursued the search in its capacity as a government employer and
that it was undertaken in connection with an investigation involving a work-
related misconduct, one of the circumstances exempted from the warrant
requirement. At the inception of the search, a complaint was received recounting that a
certain division chief in the CSCRO No. IV was lawyering for parties having pending cases
with the said regional office or in the Commission. The nature of the imputation was
serious, as it was grievously disturbing. If, indeed, a CSC employee was found to
be furtively engaged in the practice of lawyering for parties with pending cases before
the Commission x x x [i]t would undeniably cast clouds of doubt upon the institutional
integrity of the Commission as a quasi-judicial agency x x x.

Considering the damaging nature of the accusation, the Commission

had to act fast, if only to arrest or limit any possible adverse consequence or fall-
out. Thus, on the same date that the complaint was received, a search was forthwith
conducted involving the computer resources in the concerned regional office. That it
was the computers that were subjected to the search was justified since these
furnished the easiest means for an employee to encode and store
documents. Indeed, the computers would be a likely starting point in ferreting
out incriminating evidence. Concomitantly, the ephemeral nature of computer
files, that is, they could easily be destroyed at a click of a button, necessitated
drastic and immediate action. Pointedly, to impose the need to comply with the
probable cause requirement would invariably defeat the purpose of the wok-related
investigation.

xxx

All in all, the Commission is convinced that the warrantless search done on
computer assigned to Pollo was not, in any way, vitiated with unconstitutionality. It was
a reasonable exercise of the managerial prerogative of the Commission as an employer
aimed at ensuring its operational effectiveness and efficiency by going after the work-
related misfeasance of its employees. Consequently, the evidence derived from the
questioned search are deemed admissible.

Petitioners claim of violation of his constitutional right to privacy must necessarily

fail. His other argument invoking the privacy of communication and correspondence under
Section 3(1), Article III of the 1987 Constitution is also untenable considering the recognition
accorded to certain legitimate intrusions into the privacy of employees in the government
workplace under the aforecited authorities. x x x As already mentioned, the search of
petitioners computer was justified there being reasonable ground for suspecting that the files
stored therein would yield incriminating evidence relevant to the investigation being conducted
by CSC as government employer of such misconduct subject of the anonymous complaint. This
situation clearly falls under the exception to the warrantless requirement in administrative
searches defined in OConnor.

The Court is not unaware of our decision in Anonymous Letter-Complaint against Atty.
Miguel Morales, Clerk of Court, Metropolitan Trial Court of Manila involving a branch clerk (Atty.
Morales) who was investigated on the basis of an anonymous letter alleging that he was
consuming his working hours filing and attending to personal cases, using office supplies,
equipment and utilities. The OCA conducted a spot investigation aided by NBI agents. The team
90 | P a g e
was able to access Atty. Morales personal computer and print two documents stored in its hard
drive, which turned out to be two pleadings, one filed in the CA and another in the RTC of
Manila, both in the name of another lawyer. Atty. Morales computer was seized and taken in
custody of the OCA but was later ordered released on his motion, but with order to the MISO to
first retrieve the files stored therein. The OCA disagreed with the report of the Investigating
Judge that there was no evidence to support the charge against Atty. Morales as no one from
the OCC personnel who were interviewed would give a categorical and positive statement
affirming the charges against Atty. Morales, along with other court personnel also charged in
the same case. The OCA recommended that Atty. Morales should be found guilty of gross
misconduct. The Court En Banc held that while Atty. Morales may have fallen short of the
exacting standards required of every court employee, the Court cannot use the evidence
obtained from his personal computer against him for it violated his constitutional right against
unreasonable searches and seizures. The Court found no evidence to support the claim of OCA
that they were able to obtain the subject pleadings with the consent of Atty. Morales, as in fact
the latter immediately filed an administrative case against the persons who conducted the spot
investigation, questioning the validity of the investigation and specifically invoking his
constitutional right against unreasonable search and seizure. And as there is no other evidence,
apart from the pleadings, retrieved from the unduly confiscated personal computer of Atty.
Morales, to hold him administratively liable, the Court had no choice but to dismiss the charges
against him for insufficiency of evidence.

The above case is to be distinguished from the case at bar because, unlike the former
which involved a personal computer of a court employee, the computer from which the personal
files of herein petitioner were retrieved is a government-issued computer, hence government
property the use of which the CSC has absolute right to regulate and monitor. Such relationship
of the petitioner with the item seized (office computer) and other relevant factors and
circumstances under American Fourth Amendment jurisprudence, notably the existence of CSC
MO 10, S. 2007 on Computer Use Policy, failed to establish that petitioner had a reasonable
expectation of privacy in the office computer assigned to him. (Pollo v. Constantino-David, G.R.
No. 181881, October 18, 2011)

For a warrantless arrest of an accused caught in flagrante delicto to be valid,

two requisites must concur: (1) the person to be arrested must execute an overt act
indicating that he has just committed, is actually committing, or is attempting to
commit a crime; and (2) such overt act is done in the presence or within the view of
the arresting officer." Trying to run away when no crime has been overtly
committed, and without more, cannot be evidence of guilt. Flight per se is not
synonymous with guilt.

Section 5(a), Rule 113 of the Rules of Criminal Procedure provides that a peace officer
or a private person may, without a warrant, arrest a person when, in his presence, the person
to be arrested has committed, is actually committing, or is attempting to commit an offense.
This is known an arrest in flagrante delicto.

"For a warrantless arrest of an accused caught in flagrante delicto to be valid, two

requisites must concur: (1) the person to be arrested must execute an overt act indicating that
he has just committed, is actually committing, or is attempting to commit a crime; and (2) such
overt act is done in the presence or within the view of the arresting officer."

In the present case, there was no overt act indicative of a felonious enterprise that
could be properly attributed to the appellant to rouse suspicion in the mind of PO3 Corbe that
he (appellant) had just committed, was actually committing, or was attempting to commit a
crime. In fact, PO3 Corbe testified that the appellant and the informant were just talking with
each other when he approached them. x x x

As testified to by PO3 Corbe himself, the appellant and the informant were just talking
to each other; there was no exchange of money and drugs when he approached the car.
Notably, while it is true that the informant waved at PO3 Corbe, the latter admitted that this
was not the pre-arranged signal to signify that the sale of drugs had been consummated. PO3
Corbe also admitted on cross-examination that he had no personal knowledge on whether there
was a prohibited drug and gun inside the space wagon when he approached it.

91 | P a g e
 That the appellant attempted to run away when PO3 Corbe approached him is irrelevant
and cannot by itself be construed as adequate to charge the police officer with personal
knowledge that the appellant had just engaged in, was actually engaging in or was attempting
to engage in criminal activity.

As the Court explained in People v. Villareal:

Furthermore, appellants act of darting away when PO3 de Leon approached him
should not be construed against him. Flight per se is not synonymous with guilt and must
not always be attributed to ones consciousness of guilt. It is not a reliable indicator of guilt
without other circumstances, for even in high crime areas there are many innocent reasons
for flight, including fear of retribution for speaking to officers, unwillingness to appear as
witnesses, and fear of being wrongfully apprehended as a guilty party. Thus, appellants
attempt to run away from PO3 de Leon is susceptible of various explanations; it could
easily have meant guilt just as it could likewise signify innocence.

In other words, trying to run away when no crime has been overtly committed, and
without more, cannot be evidence of guilt.

Considering that the appellants warrantless arrest was unlawful, the search and seizure
that resulted from it was likewise illegal. Thus, the alleged plastic bag containing white
crystalline substances seized from him is inadmissible in evidence, having come from an invalid
search and seizure. (People v. Edano, G.R. No. 188133, July 7, 2014)

Reliable information alone is not enough to justify a warrantless arrest. The

accused must perform some overt act that would indicate that he has committed, is
actually committing, or is attempting to commit an offense.

The long standing rule in this jurisdiction is that "reliable information" alone is not
sufficient to justify a warrantless arrest. The rule requires, in addition, that the accused perform
some overt act that would indicate that he has committed, is actually committing, or is
attempting to commit an offense. (People v. Racho, G.R. No. 186529, August 3, 2010)

Overt act requirement in in flagrante delicto arrest: The mere act of leaving
a residence of a known drug peddler is not sufficient for a valid arrest, unless there
is an overt manifestation that the person had just engaged in, was actually
engaging in or was attempting to engage in the criminal activity of illegal
possession of shabu.

Even granting arguendo that Sanchez was arrested before the search, still the
warrantless search and seizure must be struck down as illegal because the warrantless arrest
was unlawful. Section 5, Rule 113 of the Rules of Criminal Procedure lays down the basic rules
on lawful warrantless arrests, either by a peace officer or a private person, as follows:

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private

person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actuallly
committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the person to be
arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily confined
while his case is pending, or has escaped while being transferred from one confinement
to another.

xxx

For warrantless arrest under paragraph (a) of Section 5 (in flagrante delicto arrest) to
operate, two elements must concur: (1) the person to be arrested must execute an overt act

92 | P a g e
indicating that he has just committed, is actually committing, or is attempting to commit a
crime; and (2) such overt act is done in the presence or within the view of the arresting officer.
On the other hand, paragraph (b) of Section 5 (arrest effected in hot pursuit) requires for its
application that at the time of the arrest, an offense has in fact just been committed and the
arresting officer has personal knowledge of facts indicating that the person to be apprehended
has committed it. These elements would be lacking in the case at bench.

The evidence on record reveals that no overt physical act could be properly attributed to
Sanchez as to rouse suspicion in the minds of the police operatives that he had just committed,
was committing, or was about to commit a crime. Sanchez was merely seen by the police
operatives leaving the residence of a known drug peddler, and boarding a tricycle that
proceeded towards the direction of Kawit, Cavite. Such acts cannot in any way be considered
criminal acts. In fact, even if Sanchez had exhibited unusual or strange acts, or at the very least
appeared suspicious, the same would not have been considered overt acts in order for the
police officers to effect a lawful warrantless arrest under paragraph (a) of Section 5, Rule 113.

It has not been established either that the rigorous conditions set forth in paragraph (b)
of Section 5 have been complied with in this warrantless arrest. When the police officers chased
the tricycle, they had no personal knowledge to believe that Sanchez bought shabu from the
notorious drug dealer and actually possessed the illegal drug when he boarded the tricycle. x x
x The police officers in this case had no inkling whatsoever as to what Sanchez did inside the
house of the known drug dealer. Besides, nowhere in the prosecution evidence does it show
that the drug dealer was conducting her nefarious drug activities inside her house so as to
warrant the police officers to draw a reasonable suspicion that Sanchez must have gotten shabu
from her and possessed the illegal drug when he came out of the house. In other words, there
was no overt manifestation on the part of Sanchez that he had just engaged in, was actually
engaging in or was attempting to engage in the criminal activity of illegal possession of shabu.
(Sanchez v. People, G.R. No. 204589, November 19, 2014)

In a hot pursuit arrest, police presence at the scene while the crime was
being committed is not required. It is enough that evidence of the recent
commission of the crime is patent and the police officer has probable cause to
believe, based on personal knowledge of facts or circumstances, that the person to
be arrested has recently committed the crime.

To summarize, the arresting officers went to the scene of the crime upon the complaint
of Atty. Generoso of his alleged mauling; the police officers responded to the scene of the crime
less than one (1) hour after the alleged mauling; the alleged crime transpired in a community
where Atty. Generoso and the petitioners reside; Atty. Generoso positively identified the
petitioners as those responsible for his mauling and, notably, the petitioners and Atty. Generoso
lived almost in the same neighborhood; more importantly, when the petitioners were
confronted by the arresting officers, they did not deny their participation in the incident with
Atty. Generoso, although they narrated a different version of what transpired.

With these facts and circumstances that the police officers gathered and which they
have personally observed less than one hour from the time that they have arrived at the scene
of the crime until the time of the arrest of the petitioners, we deem it reasonable to conclude
that the police officers had personal knowledge of facts or circumstances justifying the
petitioners' warrantless arrests. These circumstances were well within the police officers'
observation, perception and evaluation at the time of the arrest. These circumstances qualify as
the police officers' personal observation, which are within their personal knowledge, prompting
them to make the warrantless arrests.

Similar to the factual antecedents in Jayson, the police officers in the present case saw
Atty. Generoso in his sorry bloodied state. As the victim, he positively identified the petitioners
as the persons who mauled him; however, instead of fleeing like what happened in Jayson, the
petitioners agreed to go with the police officers.

In determining the reasonableness of the warrantless arrests, it is incumbent upon the

courts to consider if the police officers have complied with the requirements set under Section
5(b), Rule 113 of the Revised Rules of Criminal Procedure, specifically, the requirement of

93 | P a g e
immediacy; the police officer's personal knowledge of facts or circumstances; and lastly, the
propriety of the determination of probable cause that the person sought to be arrested
committed the crime.

The records show that soon after the report of the incident occurred, SPOl Monsalve
immediately dispatched the arresting officer, SP02 Javier, to render personal assistance to the
victim. This fact alone negates the petitioners' argument that the police officers did not have
personal knowledge that a crime had been committed -the police immediately responded and
had personal knowledge that a crime had been committed.

To reiterate, personal knowledge of a crime just committed under the terms of the
above-cited provision, does not require actual presence at the scene while a crime was being
committed; it is enough that evidence of the recent commission of the crime is patent (as in
this case) and the police officer has probable cause to believe based on personal knowledge of
facts or circumstances, that the person to be arrested has recently committed the crime.
(Pestilos v. Generoso, G.R. No. 182601, November 10, 2014)

The arrest of a person who has presented himself before the police station to
clear his name and prove that he is not the accused -- is not valid, as he was neither
committing nor attempting to commit an offense, and the police officers had no
personal knowledge of any offense that he might have committed.

It is undisputed that petitioner Salibo presented himself before the Datu Hofer Police
Station to clear his name and to prove that he is not the accused Butukan S. Malang

[P]etitioner Salibo was not validly arrested without a warrant. Rule 113, Section 5 of the
Rules of Court enumerates the instances when a warrantless arrest may be made:

SEC. 5. Arrest without warrant; when lawful.A peace officer or a private person may,
without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based
on personal knowledge of facts or circumstances that the person to be arrested has committed it;
and

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily confined while his case is
pending, or has escaped while being transferred from one confinement to another.

xxx

It is undisputed that petitioner Salibo presented himself before the Datu Hofer Police
Station to clear his name and to prove that he is not the accused Butukan S. Malang. When
petitioner Salibo was in the presence of the police officers of Datu Hofer Police Station, he was
neither committing nor attempting to commit an offense. The police officers had no personal
knowledge of any offense that he might have committed. Petitioner Salibo was also not an
escapee prisoner.

The police officers, therefore, had no probable cause to arrest petitioner Salibo without
a warrant. They deprived him of his right to liberty without due process of law, for which a
petition for habeas corpus may be issued. (In the Matter of Petition for Habeas Corpus of
Datukan Malang Salibo, v. Warden, Quezon City Jail, G.R. No. 197597, April 8, 2015)

FREE SPEECH

When a penal statute encroaches upon the freedom of speech, a facial

challenge grounded on the void-for-vagueness doctrine is acceptable. This is to
counter the "chilling effect" on protected speech. A person who does not know

94 | P a g e
whether his speech constitutes a crime under an overbroad or vague law may
simply restrain himself from speaking to avoid being charged of a crime.

When a penal statute encroaches upon the freedom of speech, a facial challenge
grounded on the void-for-vagueness doctrine is acceptable. x x x

In an "as applied" challenge, the petitioner who claims a violation of his constitutional
right can raise any constitutional ground absence of due process, lack of fair notice, lack of
ascertainable standards, overbreadth, or vagueness. Here, one can challenge the
constitutionality of a statute only if he asserts a violation of his own rights. 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. This rule is also known as the prohibition against third-party
standing.

But this rule admits of exceptions. A petitioner may for instance mount a "facial"
challenge to the constitutionality of a statute even if he claims no violation of his own rights
under the assailed statute where it involves free speech on grounds of overbreadth or
vagueness of the statute.

The rationale for this exception is to counter the "chilling effect" on protected speech
that comes from statutes violating free speech. A person who does not know whether his
speech constitutes a crime under an overbroad or vague law may simply restrain himself from
speaking in order to avoid being charged of a crime. The overbroad or vague law thus chills him
into silence. (Disini v. Secretary of Justice, G.R. No. 203335, February 18, 2014)

A facial challenge is allowed to be made to a vague statute and to one which is

overbroad because of possible "chilling effect" upon protected speech. x x x The possible harm
to society in permitting some unprotected speech to go unpunished is outweighed by the
possibility that the protected speech of others may be deterred and perceived grievances left to
fester because of possible inhibitory effects of overly broad statutes. (Southern Hemisphere
Engagement Network v. Anti-Terrorism Council, G.R. No. 178552, October 5, 2010)

Overbreadth and vagueness doctrines, as facial challenges, apply only to free

speech cases, not for testing the validity of penal statutes.

The overbreadth and vagueness doctrines then have special application only to free
speech cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme
Court put it, in an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth'
doctrine outside the limited context of the First Amendment." In Broadrick v. Oklahoma, the
Court ruled that "claims of facial overbreadth have been entertained in cases involving statutes
which, by their terms, seek to regulate only spoken words" and, again, that "overbreadth
claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws
that are sought to be applied to protected conduct." x x x

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools
developed for testing "on their faces" statutes in free speech cases or, as they are called in
American law, First Amendment cases. They cannot be made to do service when what is
involved is a criminal statute. (Southern Hemisphere Engagement Network v. Anti-Terrorism
Council, G.R. No. 178552, October 5, 2010; Estrada v. Sandiganbayan, G.R. No. 148560,
November 19, 2001)

As Justice Antonio T. Carpio explained in his dissent in Romualdez v. Commission on

Elections, "we must view these statements of the Court on the inapplicability of the overbreadth
and vagueness doctrines to penal statutes as appropriate only insofar as these doctrines are
used to mount facial challenges to penal statutes not involving free speech." (Disini v.
Secretary of Justice, G.R. No. 203335, February 18, 2014)

Facial challenges can be launched to assail the validity of statutes concerning

not only protected speech, but also all other rights in the First Amendment which
include religious freedom, freedom of the press, and the right of the people to
peaceably assemble, and to petition the Government for a redress of grievances.

95 | P a g e
 In United States (US) constitutional law, a facial challenge, also known as a First
Amendment Challenge, is one that is launched to assail the validity of statutes concerning not
only protected speech, but also all other rights in the First Amendment. These include religious
freedom, freedom of the press, and the right of the people to peaceably assemble, and to
petition the Government for a redress of grievances. After all, the fundamental right to religious
freedom, freedom of the press and peaceful assembly are but component rights of the right to
one's freedom of expression, as they are modes which one's thoughts are externalized.

In this jurisdiction, the application of doctrines originating from the U.S. has been
generally maintained, albeit with some modifications. While this Court has withheld the
application of facial challenges to strictly penal statues, it has expanded its scope to cover
statutes not only regulating free speech, but also those involving religious freedom, and other
fundamental rights. The underlying reason for this modification is simple. For unlike its
counterpart in the U.S., this Court, under its expanded jurisdiction, is mandated by the
Fundamental Law not only to settle actual controversies involving rights which are legally
demandable and enforceable, but also to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. Verily, the framers of Our Constitution envisioned a
proactive Judiciary, ever vigilant with its duty to maintain the supremacy of the Constitution.

Consequently, considering that the foregoing petitions have seriously alleged that the
constitutional human rights to life, speech and religion and other fundamental rights mentioned
above have been violated by the assailed legislation, the Court has authority to take cognizance
of these kindred petitions and to determine if the RH Law can indeed pass constitutional
scrutiny. (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014)

The prohibition on the sending of internet spam under Republic Act (R.A.)
10175 (the Cybercrime Prevention Act of 2012) is a violation of freedom of
expression. To prohibit the transmission of unsolicited ads would deny a person the
right to read his emails, even unsolicited commercial ads addressed to him;
commercial speech is also entitled to protection.

Sec. 4. Cybercrime Offenses. The following acts constitute the offense of

cybercrime punishable under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(3) Unsolicited Commercial Communications. The transmission of commercial

electronic communication with the use of computer system which seeks to advertise, sell,
or offer for sale products and services are prohibited unless:

(i) There is prior affirmative consent from the recipient; or

xxx

The above penalizes the transmission of unsolicited commercial communications, also

known as "spam." x x x

The Government, represented by the Solicitor General, points out that unsolicited
commercial communications or spams are a nuisance that wastes the storage and network
capacities of internet service providers, reduces the efficiency of commerce and technology, and
interferes with the owners peaceful enjoyment of his property. Transmitting spams amounts to
trespass to ones privacy since the person sending out spams enters the recipients domain
without prior permission. The OSG contends that commercial speech enjoys less protection in
law.

But, firstly, the government presents no basis for holding that unsolicited electronic ads
reduce the "efficiency of computers." Secondly, people, before the arrival of the age of
computers, have already been receiving such unsolicited ads by mail. These have never been
outlawed as nuisance since people might have interest in such ads. What matters is that the

96 | P a g e
recipient has the option of not opening or reading these mail ads. That is true with spams. Their
recipients always have the option to delete or not to read them.

To prohibit the transmission of unsolicited ads would deny a person the right to read his
emails, even unsolicited commercial ads addressed to him. Commercial speech is a separate
category of speech which is not accorded the same level of protection as that given to other
constitutionally guaranteed forms of expression but is nonetheless entitled to protection.The
State cannot rob him of this right without violating the constitutionally guaranteed freedom of
expression. Unsolicited advertisements are legitimate forms of expression. (Disini v. Secretary of
Justice, G.R. No. 203335, February 18, 2014)

Libel is unprotected speech and may be penalized. The government has an

obligation to protect private individuals from defamation. The cybercrime law
penalizing the author of a libelous online statement or article is valid.

The Court agrees with the Solicitor General that libel is not a constitutionally protected
speech and that the government has an obligation to protect private individuals from
defamation. Indeed, cyberlibel is actually not a new crime since Article 353, in relation to Article
355 of the penal code, already punishes it. In effect, Section 4(c)(4) above merely affirms that
online defamation constitutes "similar means" for committing libel.

But the Courts acquiescence goes only insofar as the cybercrime law penalizes the
author of the libelous statement or article. (Disini v. Secretary of Justice, G.R. No. 203335,
February 18, 2014)

The law penalizing aiding and abetting the commission of internet libel is
void for being vague and overbroad. The terms "aiding or abetting" unnecessarily
sweep broadly, thereby invading the area of protected freedoms, generating a
chilling effect on those who express themselves in cyberspace. Also, netizens are
not given "fair notice" or warning as to what is criminal conduct and what is lawful
conduct. Its vagueness also causes a chilling effect on the freedom of expression.

Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject

to state regulation, may not be achieved by means that unnecessarily sweep its subject broadly,
thereby invading the area of protected freedoms.

xxx

Libel in the cyberspace can of course stain a persons image with just one click of the
mouse. x x x Still, a governmental purpose, which seeks to regulate the use of this cyberspace
communication technology to protect a persons reputation and peace of mind, cannot adopt
means that will unnecessarily and broadly sweep, invading the area of protected freedoms.

If such means are adopted, self-inhibition borne of fear of what sinister predicaments
await internet users will suppress otherwise robust discussion of public issues. Democracy will
be threatened and with it, all liberties. Penal laws should provide reasonably clear guidelines for
law enforcement officials and triers of facts to prevent arbitrary and discriminatory
enforcement. The terms "aiding or abetting" constitute broad sweep that generates chilling
effect on those who express themselves through cyberspace posts, comments, and other
messages. Hence, Section 5 of the cybercrime law that punishes "aiding or abetting" libel on
the cyberspace is a nullity.

xxx

Who is to decide when to prosecute persons who boost the visibility of a posting on the
internet by liking it? Netizens are not given "fair notice" or warning as to what is criminal
conduct and what is lawful conduct. When a case is filed, how will the court ascertain whether
or not one netizens comment aided and abetted a cybercrime while another comment did not?

xxx

97 | P a g e
 x x x Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises
apprehension on the part of internet users because of its obvious chilling effect on the freedom
of expression, especially since the crime of aiding or abetting ensnares all the actors in the
cyberspace front in a fuzzy way. (Disini v. Secretary of Justice, G.R. No. 203335, February 18,
2014)

Expressions concerning ones homosexuality and the activity of forming a

political association that supports LGBT individuals are protected. The Comelec
cannot interfere with speech to promote an approved message or discourage a
disfavored one.

Under our system of laws, every group has the right to promote its agenda and attempt
to persuade society of the validity of its position through normal democratic means. It is in the
public square that deeply held convictions and differing opinions should be distilled and
deliberated upon.

xxx

Freedom of expression constitutes one of the essential foundations of a democratic

society, and this freedom applies not only to those that are favorably received but also to those
that offend, shock, or disturb. Any restriction imposed in this sphere must be proportionate to
the legitimate aim pursued. Absent any compelling state interest, it is not for the COMELEC or
this Court to impose its views on the populace. Otherwise stated, the COMELEC is certainly not
free to interfere with speech for no better reason than promoting an approved message or
discouraging a disfavored one.

This position gains even more force if one considers that homosexual conduct is not
illegal in this country. It follows that both expressions concerning ones homosexuality and the
activity of forming a political association that supports LGBT individuals are protected as well.

xxx

We do not doubt that a number of our citizens may believe that homosexual conduct is
distasteful, offensive, or even defiant. They are entitled to hold and express that view. On the
other hand, LGBTs and their supporters, in all likelihood, believe with equal fervor that
relationships between individuals of the same sex are morally equivalent to heterosexual
relationships. They, too, are entitled to hold and express that view. However, as far as this
Court is concerned, our democracy precludes using the religious or moral views of one part of
the community to exclude from consideration the values of other members of the community.
(Ang Ladlad LGBT Party v. Commission on Elections, G.R. No. 190582, April 8, 2010)

Why Comelec regulation of political speech on oversized tarpaulins posted on

private property by non-candidates during elections is void

Speech with political consequences enjoys a high degree of protection.

Tarpaulins put up by private individuals that contain statements of their approval or
criticisms of public officials vote on the RH Law, as part of these private individuals
advocacy campaign against the RH Law, and not paid for by any candidate or
political party are not election propaganda subject to Comelec regulation.

Every citizens expression with political consequences enjoys a high degree of

protection. Respondents argue that the tarpaulin is election propaganda, being petitioners way
of endorsing candidates who voted against the RH Law and rejecting those who voted for it. As
such, it is subject to regulation by COMELEC under its constitutional mandate. x x x

xxx

On the other hand, petitioners invoke their "constitutional right to communicate their
opinions, views and beliefs about issues and candidates." They argue that the tarpaulin was
their statement of approval and appreciation of the named public officials act of voting against
the RH Law, and their criticism toward those who voted in its favor. It was "part of their
98 | P a g e
advocacy campaign against the RH Law," which was not paid for by any candidate or political
party. Thus, "the questioned orders which . . . effectively restrain[ed] and curtail[ed] [their]
freedom of expression should be declared unconstitutional and void."

x x x In Philippine Blooming Mills, this court discussed the preferred position occupied by
freedom of expression:

xxx

In the hierarchy of civil liberties, the rights of free expression and of assembly
occupy a preferred position as they are essential to the preservation and vitality of our civil
and political institutions; and such priority "gives these liberties the sanctity and the
sanction not permitting dubious intrusions." (Citations omitted)

xxx

While the tarpaulin may influence the success or failure of the named candidates and
political parties, this does not necessarily mean it is election propaganda. The tarpaulin was not
paid for or posted "in return for consideration" by any candidate, political party, or party-list
group.

xxx

Speech with political consequences is at the core of the freedom of expression and must
be protected by this court. (The Diocese of Bacolod v. Commission on Elections, G.R. No.
205728, January 21, 2015)

Prohibiting non-candidates from posting on their private property tarpaulins

containing their opinions that may affect elections is a content-based regulation
that is presumed invalid. A content-based prior restraint will only be valid it if
passes the clear and present danger test.

COMELEC contends that the order for removal of the tarpaulin is a content-neutral
regulation. The order was made simply because petitioners failed to comply with the maximum
size limitation for lawful election propaganda.

On the other hand, petitioners argue that the present size regulation is content-based as
it applies only to political speech and not to other forms of speech such as commercial speech.

xxx

The regulation may reasonably be considered as either content-neutral or content-

based. Regardless, the disposition of this case will be the same. Generally, compared with other
forms of speech, the proposed speech is content-based.

As pointed out by petitioners, the interpretation of COMELEC contained in the

questioned order applies only to posters and tarpaulins that may affect the elections because
they deliver opinions that shape both their choices. x x x

xxx

Content-based regulation bears a heavy presumption of invalidity, and this court has
used the clear and present danger rule as measure. Thus, in Chavez v. Gonzales:

A content-based regulation, however, bears a heavy presumption of invalidity and

is measured against the clear and present danger rule. The latter will pass constitutional
muster only if justified by a compelling reason, and the restrictions impose dare neither
overbroad nor vague.

Under this rule, "the evil consequences sought to be prevented must be substantive,
extremely serious and the degree of imminence extremely high." "Only when the challenged
act has overcome the clear and present danger rule will it pass constitutional muster, with the
government having the burden of overcoming the presumed unconstitutionality."

Even with the clear and present danger test, respondents failed to justify the regulation.
There is no compelling and substantial state interest endangered by the posting of the tarpaulin
as to justify curtailment of the right of freedom of expression. xxx

99 | P a g e
 Content-based restraint or censorship refers to restrictions "based on the subject matter
of the utterance or speech."

xxx

We reiterate that the regulation involved at bar is content-based. The tarpaulin content
is not easily divorced from the size of its medium. (The Diocese of Bacolod v. Commission on
Elections, G.R. No. 205728, January 21, 2015)

Regulation of speech in the context of electoral campaigns made by non-

candidates or who do not speak as members of a political party which are principally
advocacies of a social issue during elections -- is unconstitutional. Regulation of
election paraphernalia involving speech of persons who are not candidates is valid,
if what is regulated is declarative speech that, taken as a whole, has for its principal
object the endorsement of a candidate only. The regulation (a) should be provided
by law, (b) reasonable, (c) narrowly tailored to meet the objective of enhancing the
opportunity of all candidates to be heard and considering the primacy of the
guarantee of free expression, and (d) demonstrably the least restrictive means to
achieve that object. The regulation must only be with respect to the time, place, and
manner of the rendition of the message.

The message of petitioner, taken as a whole, is an advocacy of a social issue that it

deeply believes. x x x It primarily advocates a stand on a social issue; only secondarily even
almost incidentally will cause the election or non-election of a candidate.

The twin tarpaulins consist of satire of political parties. x x x It seeks to effectively

communicate a greater purpose, often used for "political and social criticism" "because it tears
down facades, deflates stuffed shirts, and unmasks hypocrisy. x x x

x x x The tarpaulin caricatures political parties and parodies the intention of those in the
list. Furthermore, the list of "Team Patay" is juxtaposed with the list of "Team Buhay" that
further emphasizes the theme of its author: Reproductive health is an important marker for the
church of petitioners to endorse.

The messages in the tarpaulins are different from the usual messages of candidates.
Election paraphernalia from candidates and political parties are more declarative and descriptive
and contain no sophisticated literary allusion to any social objective. Thus, they usually simply
exhort the public to vote for a person with a brief description of the attributes of the candidate.
For example "Vote for [x], Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for [z], Iba
kami sa Makati."

xxx

However, the requirements of the Constitution regarding equality in opportunity must

provide limits to some expression during electoral campaigns.

Thus clearly, regulation of speech in the context of electoral campaigns made by

candidates or the members of their political parties or their political parties may be regulated as
to time, place, and manner. x x x

Regulation of speech in the context of electoral campaigns made by persons who are
not candidates or who do not speak as members of a political party which are, taken as a
whole, principally advocacies of a social issue that the public must consider during elections is
unconstitutional. Such regulation is inconsistent with the guarantee of according the fullest
possible range of opinions coming from the electorate including those that can catalyze candid,
uninhibited, and robust debate in the criteria for the choice of a candidate.

This does not mean that there cannot be a specie of speech by a private citizen which
will not amount to an election paraphernalia to be validly regulated by law.

Regulation of election paraphernalia will still be constitutionally valid if it reaches into

speech of persons who are not candidates or who do not speak as members of a political party
if they are not candidates, only if what is regulated is declarative speech that, taken as a whole,
has for its principal object the endorsement of a candidate only. The regulation (a) should be
100 | P a g e
provided by law, (b) reasonable, (c) narrowly tailored to meet the objective of enhancing the
opportunity of all candidates to be heard and considering the primacy of the guarantee of free
expression, and (d) demonstrably the least restrictive means to achieve that object. The
regulation must only be with respect to the time, place, and manner of the rendition of the
message. In no situation may the speech be prohibited or censored on the basis of its content.
For this purpose, it will not matter whether the speech is made with or on private property.

This is not the situation, however, in this case for two reasons. First, as discussed, the
principal message in the twin tarpaulins of petitioners consists of a social advocacy.

Second, x x x the present law x x x if applied to this case, will not pass the test of
reasonability. A fixed size for election posters or tarpaulins without any relation to the distance
from the intended average audience will be arbitrary. At certain distances, posters measuring 2
by 3 feet could no longer be read by the general public and, hence, would render speech
meaningless. It will amount to the abridgement of speech with political consequences. (The
Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, January 21, 2015)

The act of the Comelec in restraining private individuals from posting

tarpaulins expressing political views in their own private property is an
impermissible encroachment on the right to property. The Comelec prohibition is a
deprivation of property without due process.

Even though the tarpaulin is readily seen by the public, the tarpaulin remains the private
property of petitioners. Their right to use their property is likewise protected by the
Constitution.

xxx

This court in Adiong held that a restriction that regulates where decals and stickers
should be posted is "so broad that it encompasses even the citizens private property."
Consequently, it violates Article III, Section 1 of the Constitution which provides that no person
shall be deprived of his property without due process of law. This court explained:

Property is more than the mere thing which a person owns, it includes the right to
acquire, use, and dispose of it; and the Constitution, in the 14th Amendment, protects
these essential attributes.

xxx

This court ruled that the regulation in Adiong violates private property rights:

The right to property may be subject to a greater degree of regulation but when
this right is joined by a "liberty" interest, the burden of justification on the part of the
Government must be exceptionally convincing and irrefutable. The burden is not met in
this case.

Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the
posting or display of election propaganda in any place, whether public or private, except in
the common poster areas sanctioned by COMELEC. This means that a private person
cannot post his own crudely prepared personal poster on his own front door or on a post in
his yard. While the COMELEC will certainly never require the absurd, there are no limits to
what overzealous and partisan police officers, armed with a copy of the statute or
regulation, may do.

Respondents ordered petitioners, who are private citizens, to remove the tarpaulin from
their own property. The absurdity of the situation is in itself an indication of the
unconstitutionality of COMELECs interpretation of its powers.

Freedom of expression can be intimately related with the right to property. There may
be no expression when there is no place where the expression may be made. COMELECs
infringement upon petitioners property rights as in the present case also reaches out to
infringement on their fundamental right to speech.

Respondents have not demonstrated that the present state interest they seek to
promote justifies the intrusion into petitioners property rights. Election laws and regulations
must be reasonable. It must also acknowledge a private individuals right to exercise property
rights. Otherwise, the due process clause will be violated.
101 | P a g e
 x x x Consistent with our ruling in Adiong, we find that the act of respondents in seeking
to restrain petitioners from posting the tarpaulin in their own private property is an
impermissible encroachments on the right to property. (The Diocese of Bacolod v. Commission
on Elections, G.R. No. 205728, January 21, 2015)

The Comelecs general role includes ensuring equal opportunities and reduce
spending among candidates and their registered political parties. It is not to
regulate or limit the speech of the electorate in the electoral exercise. Expression by
the electorate on contemporary issues is a form of speech protected as a
fundamental and primordial right by our Constitution.

COMELECs general role includes a mandate to ensure equal opportunities and reduce
spending among candidates and their registered political parties. It is not to regulate or limit the
speech of the electorate as it strives to participate in the electoral exercise.

The tarpaulin in question may be viewed as producing a caricature of those who are
running for public office. Their message may be construed generalizations of very complex
individuals and party-list organizations.

They are classified into black and white: as belonging to "Team Patay" or "Team
Buhay."

But this caricature, though not agreeable to some, is still protected speech.

xxx

Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is a

specie of expression protected by our fundamental law. It is an expression designed to invite
attention, cause debate, and hopefully, persuade. x x x

What is involved in this case is the most sacred of speech forms: expression by the
electorate that tends to rouse the public to debate contemporary issues. This is not speech by
candidates or political parties to entice votes. It is a portion of the electorate telling candidates
the conditions for their election. It is the substantive content of the right to suffrage.

This is a form of speech x x x is protected as a fundamental and primordial right by our

Constitution. (The Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, January
21, 2015)

Why the aggregate-based time air-time limits on campaign advertising is

invalid

Restriction on freedom of speech and of the press: The Comelecs rule --

limiting the broadcast and radio advertisements of candidates and political parties
for national election positions to an aggregate total of one hundred twenty (120)
minutes and one hundred eighty (180) minutes for political campaigns or
advertisements -- is unreasonable and arbitrary, as it unreasonably restricts the
freedom of speech and of the press. It unduly restricts and constrains the ability of
candidates and political parties to reach out and communicate with the people.

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

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

Political speech is one of the most important expressions protected by the Fundamental
Law. "[F]reedom of speech, of expression, and of the press are at the core of civil liberties and
102 | P a g e
have to be protected at all costs for the sake of democracy." Accordingly, the same must
remain unfettered unless otherwise justified by a compelling state interest.

xxx

Section 9 (a) of COMELEC Resolution No. 9615 comes up with what is challenged as
being an unreasonable basis for determining the allowable air time that candidates and political
parties may avail of. Petitioner GMA came up with its analysis of the practical effects of such a
regulation:

5.8. Given the reduction of a candidate's airtime minutes in the New Rules,
petitioner GMA estimates that a national candidate will only have 120 minutes to utilize for
his political advertisements in television during the whole campaign period of 88 days, or
will only have 81.81 seconds per day TV exposure allotment. If he chooses to place his
political advertisements in the 3 major TV networks in equal allocation, he will only have
27.27 seconds of airtime per network per day. This barely translates to 1 advertisement
spot on a 30-second spot basis in television.

5.9. With a 20-hour programming per day and considering the limits of a station's
coverage, it will be difficult for 1 advertising spot to make a sensible and feasible
communication to the public, or in political propaganda, to "make known [a candidate's]
qualifications and stand on public issues".

xxx

The Court agrees. The assailed rule on "aggregate-based" airtime limits is unreasonable
and arbitrary as it unduly restricts and constrains the ability of candidates and political parties
to reach out and communicate with the people. Here, the adverted reason for imposing the
"aggregate-based" airtime limits - leveling the playing field - does not constitute a compelling
state interest which would justify such a substantial restriction on the freedom of candidates
and political parties to communicate their ideas, philosophies, platforms and programs of
government. x x x

It is also particularly unreasonable and whimsical to adopt the aggregate-based time

limits on broadcast time when we consider that the Philippines is not only composed of so many
islands. There are also a lot of languages and dialects spoken among the citizens across the
country. Accordingly, for a national candidate to really reach out to as many of the electorates
as possible, then it might also be necessary that he conveys his message through his
advertisements in languages and dialects that the people may more readily understand and
relate to. To add all of these airtimes in different dialects would greatly hamper the ability of
such candidate to express himself - a form of suppression of his political speech.

Respondent itself states that "[t]elevision is arguably the most cost effective medium of
dissemination. Even a slight increase in television exposure can significantly boost a candidate's
popularity, name recall and electability." If that be so, then drastically curtailing the ability of a
candidate to effectively reach out to the electorate would unjustifiably curtail his freedom to
speak as a means of connecting with the people. (GMA Network v. Commission on Elections,
G.R. No. 205357, September 2, 2014)

Violation of the right to suffrage: The COMELECs aggregate time-limit rule

[rule limiting the broadcast and radio advertisements of candidates and political
parties for national election positions to an aggregate total of one hundred twenty
(120) minutes and one hundred eighty (180) minutes for political campaigns or
advertisements] violate the peoples right to suffrage by restricting the right of the
people to be adequately informed for the intelligent exercise of their right to
determine their own destiny.

Section 9 (a) of Resolution 9615 is violative of the people's right to suffrage.

Fundamental to the idea of a democratic and republican state is the right of the people
to determine their own destiny through the choice of leaders they may have in government.
Thus, the primordial importance of suffrage and the concomitant right of the people to be
adequately informed for the intelligent exercise of such birthright. (GMA Network v. Commission
on Elections, G.R. No. 205357, September 2, 2014)
103 | P a g e
 Why the Comelec prohibition on posting of an election campaign material
during an election period in Public Utility Vehicles (PUVs) and transport terminals is
void

The Comelec prohibition on posting of an election campaign material during

an election period in Public Utility Vehicles (PUVs) and transport terminals --
constitutes a prior restraint on the right to free expression. Prior restraints are
presumed invalid.

Free speech may be identified with the liberty to discuss publicly and truthfully any
matter of public concern without prior restraint or censorship and subsequent punishment. Prior
restraint refers to official governmental restrictions on the press or other forms of expression in
advance of actual publication or dissemination. Freedom from prior restraint is largely freedom
from government censorship of publications, whatever the form of censorship, and regardless
of whether it is wielded by the executive, legislative or judicial branch of the government. Any
system of prior restraints of expression comes to this Court bearing a heavy presumption
against its validity.

Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 unduly
infringe on the fundamental right of the people to freedom of speech. Central to the prohibition
is the freedom of individuals, i.e., the owners of PUVs and private transport terminals, to
express their preference, through the posting of election campaign material in their property,
and convince others to agree with them.

Pursuant to the assailed provisions of Resolution No. 9615, posting an election campaign
material during an election period in PUVs and transport terminals carries with it the penalty of
revocation of the public utility franchise and shall make the owner thereof liable for an election
offense.

The prohibition constitutes a clear prior restraint on the right to free expression of the
owners of PUVs and transport terminals. As a result of the prohibition, owners of PUVs and
transport terminals are forcefully and effectively inhibited from expressing their preferences
under the pain of indictment for an election offense and the revocation of their franchise or
permit to operate.

It is now deeply embedded in our jurisprudence that freedom of speech and of the press
enjoys a preferred status in our hierarchy of rights. The rationale is that the preservation of
other rights depends on how well we protect our freedom of speech and of the press. x x x

Thus, in Adiong v. COMELEC, the Court struck down the COMELECs prohibition against
the posting of decals and stickers on "mobile places." The Court ratiocinated that:

Significantly, the freedom of expression curtailed by the questioned prohibition is

not so much that of the candidate or the political party. The regulation strikes at the
freedom of an individual to express his preference and, by displaying it on his car, to
convince others to agree with him. A sticker may be furnished by a candidate but once the
car owner agrees to have it placed on his private vehicle, the expression becomes a
statement by the owner, primarily his own and not of anybody else.

(1-United Transport Koalisyon [1-Utak] v. Commission on Elections, G.R. No. 206020,

April 14, 2015)

A content-neutral regulation, which merely controls the time, place or

manner of speech, is valid if the following requisites concur: first, the government
regulation is within the constitutional power of the Government; second, it furthers
an important or substantial governmental interest; third, the governmental interest
is unrelated to the suppression of free expression; and fourth, the incidental
restriction on freedom of expression is no greater than is essential to the
furtherance of that interest. Prohibiting owners of PUVs and transport terminals
from posting election campaign materials is an invalid content-neutral regulation
because, first, it is not within the constitutionally delegated power of the Comelec,

104 | P a g e
and second, there is no necessity to restrict the right to free speech of the owners of
PUVs and transport terminals.

The COMELEC claims that while Section 7(g) items (5) and (6) of Resolution No. 9615
may incidentally restrict the right to free speech of owners of PUVs and transport terminals, the
same is nevertheless constitutionally permissible since it is a valid content-neutral regulation.

The Court does not agree.

A content-neutral regulation, i.e., which is merely concerned with the incidents of the
speech, or one that merely controls the time, place or manner, and under well-defined
standards, is constitutionally permissible, even if it restricts the right to free speech, provided
that the following requisites concur: first, the government regulation is within the constitutional
power of the Government; second, it furthers an important or substantial governmental
interest; third, the governmental interest is unrelated to the suppression of free expression; and
fourth, the incidental restriction on freedom of expression is no greater than is essential to the
furtherance of that interest.

Section 7(g) items (5) and (6) of Resolution No. 9615 are content-neutral regulations
since they merely control the place where election campaign materials may be posted.
However, the prohibition is still repugnant to the free speech clause as it fails to satisfy all of
the requisites for a valid content-neutral regulation.

It is conceded that Resolution No. 9615, including the herein assailed provisions,
furthers an important and substantial governmental interest, i.e., ensuring equal opportunity,
time and space among candidates aimed at the holding of free, orderly, honest, peaceful, and
credible elections. It is further conceded that the governmental interest in imposing the said
prohibition is unrelated to the suppression of free expression. However, Section 7(g) items (5)
and (6), in relation to Section 7(f), of Resolution No. 9615, are not within the constitutionally
delegated power of the COMELEC under Section 4, Article IX-C of the Constitution. Also, there is
absolutely no necessity to restrict the right to free speech of the owners of PUVs and transport
terminals. (1-United Transport Koalisyon v. Commission on Elections, G.R. No. 206020, April 14,
2015)

Prohibiting owners of PUVs and transport terminals from posting election

campaign materials cannot be justified under the captive-audience doctrine. The
commuters are not forced or compelled to read the election campaign materials
posted on PUVs and transport terminals, nor are they incapable of declining to
receive the messages contained therein.

The COMELEC further points out that PUVs [Public Utility Vehicles] and transport
terminals hold a "captive audience" commuters who have no choice but be subjected to the
blare of political propaganda. The COMELEC further claims that while owners of privately owned
PUVs and transport terminals have a right to express their views to those who wish to listen,
they have no right to force their message upon an audience incapable of declining to receive it.

The COMELECs claim is untenable.

The captive-audience doctrine states that when a listener cannot, as a practical matter,
escape from intrusive speech, the speech can be restricted. The "captive-audience" doctrine
recognizes that a listener has a right not to be exposed to an unwanted message in
circumstances in which the communication cannot be avoided.

A regulation based on the captive-audience doctrine is in the guise of censorship, which

undertakes selectively to shield the public from some kinds of speech on the ground that they
are more offensive than others. Such selective restrictions have been upheld only when the
speaker intrudes on the privacy of the home or the degree of captivity makes it either
impossible or impractical for the unwilling viewer or auditor to avoid exposure.

In Consolidated Edison Co. v. Public Service Commission, the Supreme Court of the
United States of America (U.S. Supreme Court) struck down the order of New York Public
Service Commission, which prohibits public utility companies from including inserts in monthly
bills discussing controversial issues of public policy. The U.S. Supreme Court held that "[t]he
prohibition cannot be justified as being necessary to avoid forcing appellants views on a captive

105 | P a g e
audience, since customers may escape exposure to objectionable material simply by throwing
the bill insert into a wastebasket."

Similarly, in Erznoznik v. City of Jacksonville, the U.S. Supreme Court nullified a city
ordinance, which made it a public nuisance and a punishable offense for a drive-in movie
theater to exhibit films containing nudity, when the screen is visible from a public street or
place. The U.S. Supreme Court opined that the degree of captivity is not so great as to make it
impracticable for an unwilling viewer to avoid exposure x x x.

Thus, a government regulation based on the captive-audience doctrine may not be

justified if the supposed "captive audience" may avoid exposure to the otherwise intrusive
speech. The prohibition under Section 7(g) items (5) and (6) of Resolution No. 9615 is not
justified under the captive-audience doctrine; the commuters are not forced or compelled to
read the election campaign materials posted on PUVs and transport terminals. Nor are they
incapable of declining to receive the messages contained in the posted election campaign
materials since they may simply avert their eyes if they find the same unbearably intrusive. (1-
United Transport Koalisyon v. Commission on Elections, G.R. No. 206020, April 14, 2015)

Why the Comelecs regulation requiring disclosure of names of those who

commission or pay for election surveys, including subscribers of survey firms -- is
valid

Election surveys may influence voter preferences. When left unregulated,

election surveys can undermine the holding of "fair" elections, which is the purpose
of the Fair Election act. The Fair Election Act aims to realize the policy under the
1987 Constitution to guarantee equal access to opportunities for public service, and
reduce political inequalities.

We sustain the validity of Resolution No. 9674. The names of those who commission or
pay for election surveys, including subscribers of survey firms, must be disclosed pursuant to
Section 5.2(a) of the Fair Election Act. This requirement is a valid regulation in the exercise of
police power and effects the constitutional policy of "guarantee[ing] equal access to
opportunities for public service[.]" Section 5.2(a)s requirement of disclosing subscribers neither
curtails petitioners free speech rights nor violates the constitutional proscription against the
impairment of contracts.

xxx

Republic Act No. 9006 was adopted with the end in mind of "guarantee[ing] or
ensur[ing] equal opportunity for public service" x x x.

[T]he Fair Election Act provides means to realize the policy articulated in Article II,
Section 26 of the 1987 Constitution to "guarantee equal access to opportunities for public
service[.]" x x x

Apart from making real Article II, Section 26s constitutional policy, the Fair Election Act
represents the legislatures compliance with the requirement of Article XIII, Section 1:
"Congress . . . give[s] highest priority to the enactment of measures that . . . reduce . . .
political inequalities . . . by equitably diffusing wealth and political power for the common
good."

xxx

x x x [T]he inclusion of published election surveys in a statute that regulates election

propaganda and other means through which candidates may shape voter preferences is itself
telling of the recognition that published election surveys, too, may influence voter preferences.
This inclusion is similarly telling of a recognition that, left unregulated, election surveys can
undermine the purposes of ensuring "fair" elections. x x x (Social Weather Station v.
Commission on Elections, G.R. No. 208062, April 27, 2015)

Election surveys may tend to shape voter preferences. When published,

election surveys partake of the nature of election propaganda subject to Comelec
regulation. The requirement of disclosing the names of subscribers to election
surveys is valid regulation of declarative speech by private entities in the context of

106 | P a g e
an election campaign because 1) it has basis in a statute, 2) it furthers not just an
important or substantial state interest but even a compelling one, which is to
guarantee equal access to opportunities for public service, and 3) narrowly tailored
to meet the objective and is least restrictive means to achieve that objective.

Concededly, what are involved here are not election propaganda per se. Election
surveys, on their face, do not state or allude to preferred candidates. x x x When published,
however, the tendency to shape voter preferences comes into play. In this respect, published
election surveys partake of the nature of election propaganda. x x x Hence, Section 5.2 of the
Fair Election Acts regulation of published surveys.

We thus proceed to evaluate Resolution No. 9674s requirement of disclosing the names
of subscribers to election surveys in light of the requisites for valid regulation of declarative
speech by private entities in the context of an election campaign:

First, the text of Section 5.2(a) of the Fair Election Act supports the inclusion of
subscribers among those persons who "paid for the survey[.]" Thus, Resolution No. 9674 is a
regulation finding basis in statute.

COMELEC correctly points out that in Section 5.2(a) of the Fair Election Act, those who
"commissioned" and those who "paid for" the published survey are separated by the disjunctive
term "or." x x x

The second class makes no distinction between those who pay for a specific survey and
those who pay for election surveys in general. Indeed, subscribers do not escape the burden
ofpaying for the component articles comprising a subscription. x x x

Second, not only an important or substantial state interest but even a compelling one
reasonably grounds Resolution No. 9674s inclusion of subscribers to election surveys. Thus,
regardless of whether an intermediate or strict standard is used, Resolution No. 9674 passes
scrutiny.

It is settled that constitutionally declared principles are a compelling state interest:

Compelling governmental interest would include constitutionally declared principles. xxx

[T]he regulation of election surveys effects the constitutional policy, articulated in Article
II, Section 26, and reiterated and affirmed in Article IX-C, Section 4 and Article XIII, Section 26
of the 1987 Constitution, of "guarantee[ing] equal access to opportunities for public service[.]"

Resolution No. 9674 addresses the reality that an election survey x x x can be a means
to shape the preference of voters and, thus, the outcome of elections. x x x Accordingly, the
imperative of "fair" elections impels their regulation.

Lastly, Resolution No. 9674 is "narrowly tailored to meet the objective of enhancing the
opportunity of all candidates to be heard and considering the primacy of the guarantee of free
expression" and is "demonstrably the least restrictive means to achieve that object."

While it does regulate expression (i.e., petitioners publication of election surveys), it

does not go so far as to suppress desired expression. There is neither prohibition nor censorship
specifically aimed at election surveys. The freedom to publish election surveys remains. All
Resolution No. 9674 does is articulate a regulation as regards the manner of publication, that is,
that the disclosure of those who commissioned and/or paid for, including those subscribed to,
published election surveys must be made. (Social Weather Station v. Commission on Elections,
G.R. No. 208062, April 7, 2015)

The Comelecs regulation requiring disclosure of names of those who

commission or pay for election surveys is not a prior restraint as the disclosure
requirement kicks in only upon, not prior to, publication.

Prior restraint refers to official governmental restrictions on the press or other forms of
expression in advance of actual publication or dissemination. Freedom from prior restraint is
largely freedom from government censorship of publications, whatever the form of censorship,
and regardless of whether it is wielded by the executive, legislative or judicial branch of the
government. Thus, it precludes governmental acts that required approval of a proposal to
publish; licensing or permits as prerequisites to publication including the payment of license
107 | P a g e
taxes for the privilege to publish; and even injunctions against publication. Even the closure of
the business and printing offices of certain newspapers, resulting in the discontinuation of their
printing and publication, are deemed as previous restraint or censorship. Any law or official that
requires some form of permission to be had before publication can be made, commits an
infringement of the constitutional right, and remedy can be had at the courts.

The very definition of "prior restraint" negates petitioners assertions. Resolution No.
9674 poses no prohibition or censorship specifically aimed at election surveys. Apart from
regulating the manner of publication, petitioners remain free to publish election surveys.
COMELEC correctly points out that "[t]he disclosure requirement kicks in only upon, not prior to,
publication."

In any case, the requirement of disclosing subscribers is neither unduly burdensome nor
onerous. Prior to the promulgation of Resolution No. 9674, survey firms are already understood
to be bound by the requirement to disclose those who commission or pay for published election
surveys. Petitioners have been complying with this without incident since the Fair Election Act
was enacted in 2001. After more than a decade of compliance, it is odd for petitioners to
suddenly assail the disclosure requirement as unduly burdensome or onerous. (Social Weather
Station v. Commission on Elections, G.R. No. 208062, April 7, 2015)

The Comelec rule on mandatory right to reply is valid: The Constitution itself
mandates the right to reply. Moreover, radio and TV broadcasting companies do not
own the airwaves but are merely given the temporary privilege of using them. The
exercise of the privilege may reasonably be burdened with the performance by the
grantee of some form of public service.

Section 14 of Resolution No. 9615, as revised by Resolution No. 9631, provides:

SECTION 14. Right to Reply. - All registered political parties, party-list groups or
coalitions and bona fide candidates shall have the right to reply to charges published or
aired against them. The reply shall be given publicity by the newspaper, television, and/or
radio station which first printed or aired the charges with the same prominence or in the
same page or section or in the same time slot as the first statement. x x x

The Constitution itself provides as part of the means to ensure free, orderly, honest, fair
and credible elections, a task addressed to the COMELEC to provide for a right to reply. Given
that express constitutional mandate, it could be seen that the Fundamental Law itself has
weighed in on the balance to be struck between the freedom of the press and the right to reply.

Moreover, as already discussed by the Court in Telecommunications and Broadcast

Attorneys of the Philippines, Inc. v. Commission on Elections.
In truth, radio and television broadcasting companies, which are given franchises,
do not own the airwaves and frequencies through which they transmit broadcast signals
and images. They are merely given the temporary privilege of using them. Since a
franchise is a mere privilege, the exercise of the privilege may reasonably be burdened
with the performance by the grantee of some form of public service.

(GMA Network v. Commission on Elections, G.R. No. 205357, September 2, 2014)

RELIGIOUS FREEDOM

Under the Establishment Clause, the State is prohibited from sponsoring any
religion or favoring any religion as against other religions.

[T]he constitutional assurance of religious freedom provides two guarantees: the

Establishment Clause and the Free Exercise Clause.

The establishment clause "principally prohibits the State from sponsoring any religion or
favoring any religion as against other religions. It mandates a strict neutrality in affairs among
religious groups." Essentially, it prohibits the establishment of a state religion and the use of

108 | P a g e
public resources for the support or prohibition of a religion. (Imbong v. Ochoa, G.R. No.
204819, 8 April 2014)

The free exercise clause prohibits government from inhibiting religious beliefs
with penalties for religious beliefs and practice, while the establishment clause
prohibits government from inhibiting religious belief with rewards for religious
beliefs and practices.

The establishment clause "principally prohibits the State from sponsoring any religion or
favoring any religion as against other religions. It mandates a strict neutrality in affairs among
religious groups." Essentially, it prohibits the establishment of a state religion and the use of
public resources for the support or prohibition of a religion.

On the other hand, the basis of the free exercise clause is the respect for the inviolability
of the human conscience. Under this part of religious freedom guarantee, the State is prohibited
from unduly interfering with the outside manifestations of one's belief and faith. Explaining the
concept of religious freedom, the Court, in Victoriano v. Elizalde Rope Workers Union wrote:

The constitutional provisions not only prohibits legislation for the support of any
religious tenets or the modes of worship of any sect, thus forestalling compulsion by law of
the acceptance of any creed or the practice of any form of worship (U.S. Ballard, 322 U.S.
78, 88 L. ed. 1148, 1153), but also assures the free exercise of one's chosen form
of religion within limits of utmost amplitude. It has been said that the religion
clauses of the Constitution are all designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to profess his beliefs,
and to live as he believes he ought to live, consistent with the liberty of others and with
the common good. Any legislation whose effect or purpose is to impede the
observance of one or all religions, or to discriminate invidiously between the
religions, is invalid, even though the burden may be characterized as being only
indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the
state regulates conduct by enacting, within its power, a general law which has for its
purpose and effect to advance the state's secular goals, the statute is valid despite its
indirect burden on religious observance, unless the state can accomplish its purpose
without imposing such burden. (Braunfeld v. Brown, 366 U.S. 599, 6 Led. 2d. 563, 81 S.
Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and 449).

As expounded in Escritor,

The establishment and free exercise clauses were not designed to serve contradictory
purposes. They have a single goal-to promote freedom of individual religious beliefs and
practices. In simplest terms, the free exercise clause prohibits government from inhibiting
religious beliefs with penalties for religious beliefs and practice, while the establishment clause
prohibits government from inhibiting religious belief with rewards for religious beliefs and
practices. In other words, the two religion clauses were intended to deny government the
power to use either the carrot or the stick to influence individual religious beliefs and practices.
(Imbong v. Ochoa, G.R. No. 204819, 8 April 2014)

The guarantee of religious freedom is comprised of two parts: the freedom to

believe, and the freedom to act on one's belief; the first part is absolute; the second
part is limited and subject to regulation where the external acts affect the public
welfare.

Corollary to the guarantee of free exercise of one's religion is the principle that the
guarantee of religious freedom is comprised of two parts: the freedom to believe, and the
freedom to act on one's belief. The first part is absolute. As explained in Gerona v. Secretary of
Education:

The realm of belief and creed is infinite and limitless bounded only by one's
imagination and thought. So is the freedom of belief, including religious belief, limitless and
without bounds. One may believe in most anything, however strange, bizarre and
unreasonable the same may appear to others, even heretical when weighed in the scales
of orthodoxy or doctrinal standards. x x x

109 | P a g e
 The second part however, is limited and subject to the awesome power of the
State and can be enjoyed only with proper regard to the rights of others. It is "subject to
regulation where the belief is translated into external acts that affect the public welfare."

Thus, in case of conflict between the free exercise clause and the State, the Court
adheres to the doctrine of benevolent neutrality. This has been clearly decided by the Court in
Estrada v. Escritor, (Escritor) where it was stated "that benevolent neutrality-accommodation,
whether mandatory or permissive, is the spirit, intent and framework underlying the Philippine
Constitution." (Imbong v. Ochoa, G.R. No. 204819, 8 April 2014)

Pursuant to the Doctrine of Benevolent Neutrality, the conscientious

objector's claim to religious freedom would warrant an exemption from obligations
under the RH Law, unless the government succeeds in demonstrating a more
compelling state interest in the accomplishment of an important secular objective.
To compel a conscientious objector to act contrary to his religious belief and
conviction would be violate "the principle of non-coercion" enshrined in the right to
free exercise of religion.

While the RH Law, in espousing state policy to promote reproductive health manifestly
respects diverse religious beliefs in line with the Non-Establishment Clause, the same conclusion
cannot be reached with respect to Sections 7, 23 and 24 thereof. The said provisions commonly
mandate that a hospital or a medical practitioner to immediately refer a person seeking health
care and services under the law to another accessible healthcare provider despite their
conscientious objections based on religious or ethical beliefs.

In a situation where the free exercise of religion is allegedly burdened by government

legislation or practice, the compelling state interest test in line with the Court's espousal of the
Doctrine of Benevolent Neutrality in Escritor, finds application. In this case, the conscientious
objector's claim to religious freedom would warrant an exemption from obligations under the
RH Law, unless the government succeeds in demonstrating a more compelling state interest in
the accomplishment of an important secular objective. Necessarily so, the plea of conscientious
objectors for exemption from the RH Law deserves no less than strict scrutiny.

In applying the test, the first inquiry is whether a conscientious objector's right to
religious freedom has been burdened. x x x

The Court is of the view that the obligation to refer imposed by the RH Law violates the
religious belief and conviction of a conscientious objector. Once the medical practitioner,
against his will, refers a patient seeking information on modem reproductive health products,
services, procedures and methods, his conscience is immediately burdened as he has been
compelled to perform an act against his beliefs. As Commissioner Joaquin A. Bernas
(Commissioner Bernas) has written, "at the basis of the free exercise clause is the respect for
the inviolability of the human conscience.

xxx

Moreover, the guarantee of religious freedom is necessarily intertwined with the right to
free speech, it being an externalization of one's thought and conscience. This in turn includes
the right to be silent. With the constitutional guarantee of religious freedom follows the
protection that should be afforded to individuals in communicating their beliefs to others as well
as the protection for simply being silent. The Bill of Rights guarantees the liberty of the
individual to utter what is in his mind and the liberty not to utter what is not in his mind. While
the RH Law seeks to provide freedom of choice through informed consent, freedom of choice
guarantees the liberty of the religious conscience and prohibits any degree of compulsion or
burden, whether direct or indirect, in the practice of one's religion.

In case of conflict between the religious beliefs and moral convictions of individuals, on
one hand, and the interest of the State, on the other, to provide access and information on
reproductive health products, services, procedures and methods to enable the people to
determine the timing, number and spacing of the birth of their children, the Court is of the
strong view that the religious freedom of health providers, whether public or private, should be
accorded primacy. Accordingly, a conscientious objector should be exempt from compliance
with the mandates of the RH Law. If he would be compelled to act contrary to his religious

110 | P a g e
belief and conviction, it would be violative of "the principle of non-coercion" enshrined in the
constitutional right to free exercise of religion.

xxx

The same holds true with respect to non-maternity specialty hospitals and hospitals
owned and operated by a religious group and health care service providers. Considering that
Section 24 of the RH Law penalizes such institutions should they fail or refuse to comply with
their duty to refer under Section 7 and Section 23(a)(3), the Court deems that it must be struck
down for being violative of the freedom of religion. The same applies to Section 23(a)(l) and
(a)(2) in relation to Section 24, considering that in the dissemination of information regarding
programs and services and in the performance of reproductive health procedures, the religious
freedom of health care service providers should be respected.

x x x The punishment of a healthcare service provider, who fails and/or refuses to refer
a patient to another, or who declines to perform reproductive health procedure on a patient
because incompatible religious beliefs, is a clear inhibition of a constitutional guarantee which
the Court cannot allow. (Imbong v. Ochoa, G.R. No. 204819, 8 April 2014)

Exception: Life threatening cases: The government may compel healthcare

providers to give reproductive health care, because the right to life of the mother
should be given preference. If it is necessary to save the life of a mother,
procedures endangering the life of the child may be resorted to even if is against the
religious sentiments of the medical practitioner.

All this notwithstanding, the Court properly recognizes a valid exception set forth in the
law. While generally healthcare service providers cannot be forced to render reproductive health
care procedures if doing it would contravene their religious beliefs, an exception must be made
in life-threatening cases that require the performance of emergency procedures. In these
situations, the right to life of the mother should be given preference, considering that a referral
by a medical practitioner would amount to a denial of service, resulting to unnecessarily placing
the life of a mother in grave danger. x x x

In a conflict situation between the life of the mother and the life of a child, the doctor is
morally obliged always to try to save both lives. If, however, it is impossible, the resulting death
to one should not be deliberate.

xxx

Accordingly, if it is necessary to save the life of a mother, procedures endangering the

life of the child may be resorted to even if is against the religious sentiments of the medical
practitioner. As quoted above, whatever burden imposed upon a medical practitioner in this
case would have been more than justified considering the life he would be able to save.
(Imbong v. Ochoa, G.R. No. 204819, 8 April 2014)

Mandatory family planning seminars: No violation of religious freedom

because attendees are not compelled to accept the information given to them.

Anent the requirement imposed under Section 152 as a condition for the issuance of a
marriage license, the Court finds the same to be a reasonable exercise of police power by the
government. A cursory reading of the assailed provision bares that the religious freedom of the
petitioners is not at all violated. All the law requires is for would-be spouses to attend a seminar
on parenthood, family planning breastfeeding and infant nutrition. It does not even mandate
the type of family planning methods to be included in the seminar, whether they be natural or
artificial. As correctly noted by the OSG, those who receive any information during their
attendance in the required seminars are not compelled to accept the information given to them,
are completely free to reject the information they find unacceptable, and retain the freedom to
decide on matters of family life without the intervention of the State. (Imbong v. Ochoa, G.R.
No. 204819, 8 April 2014)

The non-establishment clause calls for government neutrality in religious

matters. It is a grave violation of the non-establishment clause for the COMELEC to
111 | P a g e
utilize the Bible and the Koran to justify the exclusion of a party list registration.
The government must act for secular purposes.

Ang Ladlad is an organization composed of men and women who identify themselves as
lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003, Ang
Ladlad first applied for registration with the COMELEC in 2006. The application for accreditation
was denied x x x. On August 17, 2009, Ang Ladlad again filed a Petition for registration with the
COMELEC.

xxx

On November 11, 2009, after admitting the petitioners evidence, the COMELEC (Second
Division) dismissed the Petition on moral grounds, stating that:
x x x This Petition is dismissible on moral grounds.

xxx

x x x [P]etitioner tolerates immorality which offends religious beliefs.

xxx

Our Constitution provides in Article III, Section 5 that "[n]o law shall be made respecting
an establishment of religion, or prohibiting the free exercise thereof." At bottom, what our non-
establishment clause calls for is "government neutrality in religious matters." Clearly,
"governmental reliance on religious justification is inconsistent with this policy of neutrality." 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 [party].

Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should
depend, instead, on whether the COMELEC is able to advance some justification for its rulings
beyond mere conformity to religious doctrine. Otherwise stated, government must act for
secular purposes and in ways that have primarily secular effects. (Ang Ladlad LGBT Party v.
Commission on Elections, G.R. No. 190582, April 8, 2010)

RIGHT TO PRIVACY

The right to privacy is the right to be let alone.

The right to privacy is enshrined in our Constitution and in our laws. It is defined as "the
right to be free from unwarranted exploitation of ones person or from intrusion into ones
private activities in such a way as to cause humiliation to a persons ordinary sensibilities." It is
the right of an individual "to be free from unwarranted publicity, or to live without unwarranted
interference by the public in matters in which the public is not necessarily concerned." Simply
put, the right to privacy is "the right to be let alone." (Spouses Hing v. Choachuy, G.R. No.
179736, June 26, 2013)

Right to privacy may extend to places where one has the right to exclude the
public or deny them access, such as a business office.

An individuals right to privacy under Article 26(1) of the Civil Code should not be
confined to his house or residence as it may extend to places where he has the right to exclude
the public or deny them access. The phrase "prying into the privacy of anothers residence,"
therefore, covers places, locations, or even situations which an individual considers as private.
And as long as his right is recognized by society, other individuals may not infringe on his right
to privacy. (Spouses Hing v. Choachuy, G.R. No. 179736, June 26, 2013)

The "reasonable expectation of privacy" test should be used to determine

whether there is a violation of the right to privacy. The reasonableness of a
persons expectation of privacy depends on a two-part test: (1) whether, by his
conduct, the individual has exhibited an expectation of privacy; and (2) this
expectation is one that society recognizes as reasonable.

112 | P a g e
 In ascertaining whether there is a violation of the right to privacy, courts use the
"reasonable expectation of privacy" test. This test determines whether a person has a
reasonable expectation of privacy and whether the expectation has been violated. In Ople v.
Torres, we enunciated that "the reasonableness of a persons expectation of privacy depends on
a two-part test: (1) whether, by his conduct, the individual has exhibited an expectation of
privacy; and (2) this expectation is one that society recognizes as reasonable." Customs,
community norms, and practices may, therefore, limit or extend an individuals "reasonable
expectation of privacy." Hence, the reasonableness of a persons expectation of privacy must be
determined on a case-to-case basis since it depends on the factual circumstances surrounding
the case. (Spouses Hing v. Choachuy, G.R. No. 179736, June 26, 2013)

Surveillance cameras should not pry into or cover places where there is
reasonable expectation of privacy.

In this day and age, video surveillance cameras are installed practically everywhere for
the protection and safety of everyone. The installation of these cameras, however, should not
cover places where there is reasonable expectation of privacy, unless the consent of the
individual, whose right to privacy would be affected, was obtained. Nor should these cameras
be used to pry into the privacy of anothers residence or business office as it would be no
different from eavesdropping, which is a crime under Republic Act No. 4200 or the Anti-
Wiretapping Law.

xxx

x x x [P]etitioners have a "reasonable expectation of privacy" in their property, whether

they use it as a business office or as a residence and that the installation of video surveillance
cameras directly facing petitioners property or covering a significant portion thereof, without
their consent, is a clear violation of their right to privacy. As we see then, the issuance of a
preliminary injunction was justified. (Spouses Hing v. Choachuy, G.R. No. 179736, June 26,
2013)

To have an expectation of privacy in Facebook posts, a user must show

intention to keep certain posts private through the use of privacy tools. A Facebook
user who opts to make use of a privacy tool to grant or deny access to his or her
post or profile detail should not be denied the informational privacy right which
necessarily accompanies said choice.

The concept of privacy has, through time, greatly evolved, with technological
advancements having an influential part therein. This evolution was briefly recounted in former
Chief Justice Reynato S. Punos speech, The Common Right to Privacy, where he explained the
three strands of the right to privacy, viz: (1) locational or situational privacy; (2) informational
privacy; and (3) decisional privacy. Of the three, what is relevant to the case at bar is the right
to informational privacyusually defined as the right of individuals to control information about
themselves.

With the availability of numerous avenues for information gathering and data sharing
nowadays, not to mention each systems inherent vulnerability to attacks and intrusions, there
is more reason that every individuals right to control said flow of information should be
protected and that each individual should have at least a reasonable expectation of privacy in
cyberspace. x x x

xxx

The question now though is up to what extent is the right to privacy protected in [online
social network] OSNs? x x x

xxx

To address concerns about privacy, but without defeating its purpose, Facebook was
armed with different privacy tools designed to regulate the accessibility of a users profile as
well as information uploaded by the user. x x x

xxx

113 | P a g e
 The foregoing are privacy tools, available to Facebook users, designed to set up barriers
to broaden or limit the visibility of his or her specific profile content, statuses, and photos,
among others, from another users point of view. x x x

x x x It is through the availability of said privacy tools that many OSN users are said to
have a subjective expectation that only those to whom they grant access to their profile will
view the information they post or upload thereto.

This, however, does not mean that any Facebook user automatically has a protected
expectation of privacy in all of his or her Facebook activities.

Before one can have an expectation of privacy in his or her OSN activity, it is first
necessary that said user, in this case the children of petitioners, manifest the intention to keep
certain posts private, through the employment of measures to prevent access thereto or to limit
its visibility. And this intention can materialize in cyberspace through the utilization of the OSNs
privacy tools. In other words, utilization of these privacy tools is the manifestation, in cyber
world, of the users invocation of his or her right to informational privacy.

Therefore, a Facebook user who opts to make use of a privacy tool to grant or deny
access to his or her post or profile detail should not be denied the informational privacy right
which necessarily accompanies said choice. x x x

xxx

It is well to note that not one of petitioners disputed Escuderos sworn account that her
students, who are the minors Facebook "friends," showed her the photos using their own
Facebook accounts. This only goes to show that no special means to be able to view the
allegedly private posts were ever resorted to by Escuderos students, and that it is reasonable
to assume, therefore, that the photos were, in reality, viewable either by (1) their Facebook
friends, or (2) by the public at large.

Considering that the default setting for Facebook posts is "Public," it can be surmised
that the photographs in question were viewable to everyone on Facebook, absent any proof
that petitioners children positively limited the disclosure of the photograph. If such were the
case, they cannot invoke the protection attached to the right to informational privacy. The
ensuing pronouncement in US v. Gines-Perez is most instructive:

[A] person who places a photograph on the Internet precisely intends to forsake
and renounce all privacy rights to such imagery, particularly under circumstances such as
here, where the Defendant did not employ protective measures or devices that would have
controlled access to the Web page or the photograph itself.

xxx

In sum, there can be no quibbling that the images in question, or to be more precise,
the photos of minor students scantily clad, are personal in nature, likely to affect, if
indiscriminately circulated, the reputation of the minors enrolled in a conservative institution.
However, the records are bereft of any evidence, other than bare assertions that they utilized
Facebooks privacy settings to make the photos visible only to them or to a select few. Without
proof that they placed the photographs subject of this case within the ambit of their protected
zone of privacy, they cannot now insist that they have an expectation of privacy with respect to
the photographs in question. (Vivares v. St. Theresas College, G.R. No. 202666, September 29,
2014)

An ordinance requiring property owners to expose their property by limiting

the height of fences to one meter and requiring fences in excess of one meter to be
at least 80% see-thru is a violation of the right to privacy of the property owners.

The petitioners argue that x x x Section 3.1 [of Ordinance No. 192] limiting the height of
fences to one meter and requiring fences in excess of one meter to be at least 80% see-thru,
should remain valid and enforceable against the respondents.

xxx

114 | P a g e
 It also appears that requiring the exposure of their property via a see-thru fence is
violative of their right to privacy, considering that the residence of the Benedictine nuns is also
located within the property. The right to privacy has long been considered a fundamental right
guaranteed by the Constitution that must be protected from intrusion or constraint. The right to
privacy is essentially the right to be let alone, as governmental powers should stop short of
certain intrusions into the personal life of its citizens. It is inherent in the concept of liberty,
enshrined in the Bill of Rights (Article III) in Sections 1, 2, 3(1), 6, 8, and 17, Article III of the
1987 Constitution.

The enforcement of Section 3.1 would, therefore, result in an undue interference with
the respondents rights to property and privacy. Section 3.1 of Ordinance No. 192 is, thus, also
invalid and cannot be enforced against the respondents. (Fernando v. St. Scholasticas College,
G.R. No. 161107, March 12, 2013)

RIGHT TO PEACEABLY ASSEMBLE

Freedom of assembly is not to be limited or denied, except on a showing of a

clear and present danger of a substantive evil that the state has a right to prevent.
If the mayor is to refuse or modify (the venue for example) of an application for a
permit to a rally, such refusal or modification must be based on the clear and
present danger test; also the mayor must immediately inform the applicant who
should be heard first on the perceived imminent and grave danger of a substantive
evil that may warrant the change of venue.

In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v. Ermita, the Court

reiterated:

x x x Freedom of assembly connotes the right of the people to meet

peaceably for consultation and discussion of matters of public concern. It is
entitled to be accorded the utmost deference and respect. It is not to be
limited, much less denied, except on a showing, as is the case with
freedom of expression, of a clear and present danger of a substantive
evil that the state has a right to prevent. x x x The sole justification for a
limitation on the exercise of this right, so fundamental to the
maintenance of democratic institutions, is the danger, of a character
both grave and imminent, of a serious evil to public safety, public
morals, public health, or any other legitimate public interest. (emphasis
supplied)

The Court in Bayan stated that the provisions of the Public Assembly Act of 1985
practically codified the 1983 ruling in Reyes v. Bagatsing. In juxtaposing Sections 4 to 6 of the
Public Assembly Act with the pertinent portion of the Reyes case, the Court elucidated as
follows:

x x x [The public official concerned shall] appraise whether there may be

valid objections to the grant of the permit or to its grant but at another public
place. It is an indispensable condition to such refusal or modification that the clear
and present danger test be the standard for the decision reached. If he is of the
view that there is such an imminent and grave danger of a substantive evil, the
applicants must be heard on the matter. Thereafter, his decision, whether
favorable or adverse, must be transmitted to them at the earliest
opportunity. Thus if so minded, they can have recourse to the proper judicial
authority. (italics and underscoring supplied)

In modifying the permit outright, respondent 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. The opportunity to be heard precedes the action on the permit, since the applicant
may directly go to court after an unfavorable action on the permit.

115 | P a g e
 Respondent 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, it bears repeating, is an
indispensable condition to such modification. Nothing in the issued permit adverts to an
imminent and grave danger of a substantive evil, which blank denial or modification would,
when granted imprimatur as the appellate court would have it, render illusory any judicial
scrutiny thereof. (Integrated Bar of the Philippines v. Atienza, G.R. No. 175241, February 24,
2010)

THE WRIT OF HABEAS CORPUS

A person is illegally deprived of his liberty without due process if he is

arrested and detained because of a mistaken identity. In such a case, the person
detained can avail himself of a Petition for Habeas Corpus.

Petitioner Salibo was not arrested by virtue of any warrant charging him of an offense.
He was not restrained under a lawful process or an order of a court. He was illegally deprived of
his liberty, and, therefore, correctly availed himself of a Petition for Habeas Corpus.

The Information and Alias Warrant of Arrest issued by the Regional Trial Court, Branch
221, Quezon City in People of the Philippines v. Datu Andal Ampatuan, Jr., et al. charged and
accused Butukan S. Malang, not Datukan Malang Salibo, of 57 counts of murder in connection
with the Maguindanao Massacre.

Furthermore, petitioner Salibo was not validly arrested without a warrant. x x x

It is undisputed that petitioner Salibo presented himself before the Datu Hofer Police
Station to clear his name and to prove that he is not the accused Butukan S. Malang. When
petitioner Salibo was in the presence of the police officers of Datu Hofer Police Station, he was
neither committing nor attempting to commit an offense. The police officers had no personal
knowledge of any offense that he might have committed. Petitioner Salibo was also not an
escapee prisoner.

The police officers, therefore, had no probable cause to arrest petitioner Salibo without
a warrant. They deprived him of his right to liberty without due process of law, for which a
petition for habeas corpus may be issued.

xxx

A motion for reinvestigation will not cure the defect of lack of preliminary investigation.
The Information and Alias Warrant of Arrest were issued on the premise that Butukan S.
Malang and Datukan Malang Salibo are the same person. There is evidence, however, that the
person detained by virtue of these processes is not Butukan S. Malang but another person
named Datukan Malang Salibo. (In the Matter of Petition for Habeas Corpus of Datukan Malang
Salibo, v. Warden, Quezon City Jail, G.R. No. 197597, April 8, 2015)

THE WRIT OF AMPARO

Responsibility and/or accountability: The legal basis or bases for impleading

military commanders in amparo cases. Responsibility refers to the extent the actors
have participated in an enforced disappearance. Accountability refers to the
measure of remedies that should be addressed to those who exhibited involvement
in the enforced disappearance without bringing the level of their complicity to the
level of responsibility, or who are imputed with knowledge relating to the enforced
disappearance and who carry the burden of disclosure, or those who carry, but have
failed to discharge, the burden of extraordinary diligence in the investigation of the
enforced disappearance.

The inapplicability of the doctrine of command responsibility in an amparo proceeding

does not, by any measure, preclude impleading military or police commanders on the ground
116 | P a g e
that the complained acts in the petition were committed with their direct or indirect
acquiescence. In which case, commanders may be impleadednot actually on the basis of
command responsibilitybut rather on the ground of their responsibility, or at least
accountability. (Roxas v. Macapagl Arroyo, G.R. No. 189155, September 7, 2010)

[T]he inapplicability of the doctrine of command responsibility in an amparo proceeding

does not, by any measure, preclude impleading military or police commanders on the ground
that the complained acts in the petition were committed with their direct or indirect
acquiescence. Commanders may therefore be impleaded not actually on the basis of command
responsibility but rather on the ground of their responsibility, or at least accountability.

In Razon, Jr. v. Tagitis, the Court defined responsibility and accountability as these
terms are applied to amparo proceedings, as follows:

x x x Responsibility refers to the extent the actors have been established by

substantial evidence to have participated in whatever way, by action or omission, in an
enforced disappearance, as a measure of the remedies this Court shall craft, among
them, the directive to file the appropriate criminal and civil cases against the responsible
parties in the proper courts. Accountability, on the other hand, refers to the measure
of remedies that should be addressed to those who exhibited involvement in the
enforced disappearance without bringing the level of their complicity to the level of
responsibility defined above; or who are imputed with knowledge relating to the enforced
disappearance and who carry the burden of disclosure; or those who carry, but have
failed to discharge, the burden of extraordinary diligence in the investigation
of the enforced disappearance. x x x (Emphasis supplied.)

Assessing the evidence on record, we find that the participation in any manner of
military and police authorities in the abduction of James has not been adequately proven. The
identities of the abductors have not been established, much less their link to any military or
police unit. There is likewise no concrete evidence indicating that James is being held or
detained upon orders of or with acquiescence of government agents. Consequently, the trial
court erred in granting amparo reliefs by ordering the respondent officials (1) to disclose where
James Balao is detained or confined, (2) to release him from such detention or confinement,
and (3) to cease and desist from further inflicting harm upon his person. Such pronouncement
of responsibility on the part of public respondents cannot be made given the insufficiency of
evidence. (Balao v. Arroyo, G.R. No. 186050, December 13, 2011)

Writ of amparo proceedings do not determine criminal, civil or administrative

liability. The principal objective of its proceedings is the initial determination of
whether an enforced disappearance, extralegal killing or threats thereof had
transpired.

The writ of amparo is a protective remedy aimed at providing judicial relief consisting of
the appropriate remedial measures and directives that may be crafted by the court, in order to
address specific violations or threats of violation of the constitutional rights to life, liberty or
security. While the principal objective of its proceedings is the initial determination
of whether an enforced disappearance, extralegal killing or threats thereof had
transpired the writ does not, by so doing, fix liability for such disappearance, killing
or threats, whether that may be criminal, civil or administrative under the applicable
substantive law. The rationale underpinning this peculiar nature of an amparo writ has been,
in turn, clearly set forth in the landmark case of The Secretary of National Defense v.
Manalo:

x x x The remedy provides rapid judicial relief as it partakes of a summary

proceeding that requires only substantial evidence to make the appropriate
reliefs available to the petitioner; it is not an action to determine criminal
guilt requiring proof beyond reasonable doubt, or liability for damages
requiring preponderance of evidence, or administrative responsibility
requiring substantial evidence that will require full and exhaustive
proceedings.

117 | P a g e
 (Roxas v. Macapagl Arroyo, G.R. No. 189155, September 7, 2010)

Writ of amparo: Command responsibility may be loosely applied in amparo

cases in order to identify those accountable individuals who have the power to
effectively implement whatever processes an amparo court would issue.

[A]mparo proceedings determine (a) responsibility, or the extent the actors have been
established by substantial evidence to have participated in whatever way, by action or omission,
in an enforced disappearance, and (b) accountability, or the measure of remedies that should
be addressed to those (i) who exhibited involvement in the enforced disappearance without
bringing the level of their complicity to the level of responsibility defined above; or (ii) who are
imputed with knowledge relating to the enforced disappearance and who carry the burden of
disclosure; or (iii) those who carry, but have failed to discharge, the burden of extraordinary
diligence in the investigation of the enforced disappearance. Thus, although there is no
determination of criminal, civil or administrative liabilities, the doctrine of command
responsibility may nevertheless be applied to ascertain responsibility and accountability within
these foregoing definitions.

a. Command responsibility of the President

Having established the applicability of the doctrine of command responsibility

in amparo proceedings, it must now be resolved whether the president, as commander-in-chief
of the military, can be held responsible or accountable for extrajudicial killings and enforced
disappearances. We rule in the affirmative.

To hold someone liable under the doctrine of command responsibility, the following
elements must obtain:

a. the existence of a superior-subordinate relationship between the accused as superior

and the perpetrator of the crime as his subordinate;

b. the superior knew or had reason to know that the crime was about to be or had been
committed; and

c. the superior failed to take the necessary and reasonable measures to prevent the
criminal acts or punish the perpetrators thereof.

The president, being the commander-in-chief of all armed forces, necessarily possesses
control over the military that qualifies him as a superior within the purview of the command
responsibility doctrine.

On the issue of knowledge, it must be pointed out that although international tribunals
apply a strict standard of knowledge, i.e., actual knowledge, such may nonetheless be
established through circumstantial evidence.] In the Philippines, a more liberal view is adopted
and superiors may be charged with constructive knowledge. x x x Under E.O. 226, a
government official may be held liable for neglect of duty under the doctrine of command
responsibility if he has knowledge that a crime or offense shall be committed, is being
committed, or has been committed by his subordinates, or by others within his area of
responsibility and, despite such knowledge, he did not take preventive or corrective action
either before, during, or immediately after its commission. Knowledge of the commission of
irregularities, crimes or offenses is presumed when (a) the acts are widespread within the
government officials area of jurisdiction; (b) the acts have been repeatedly or regularly
committed within his area of responsibility; or (c) members of his immediate staff or office
personnel are involved.

Meanwhile, as to the issue of failure to prevent or punish, it is important to note that as the
commander-in-chief of the armed forces, the president has the power to effectively command,
control and discipline the military. (Rodriguez v. Macapagal Arroyo, G.R. No. 191805, November
15, 2011)

THE WRIT OF HABEAS DATA

118 | P a g e
 The writ of habeas data is a remedy in case a persons right to privacy in life,
liberty or security is violated or threatened by an unlawful act or omission of a
public official or employee, or of a private individual or entity engaged in the
gathering, collecting or storing of data or information regarding the person, family,
home and correspondence of the aggrieved party. It is designed to protect the
image, privacy, honor, information, and freedom of information of an individual or a
persons right to control information regarding oneself.

The writ of habeas data is a remedy available to any person whose right to privacy in
life, liberty or security is violated or threatened by an unlawful act or omission of a public official
or employee, or of a private individual or entity engaged in the gathering, collecting or storing
of data or information regarding the person, family, home and correspondence of the aggrieved
party. It is an independent and summary remedy designed to protect the image, privacy, honor,
information, and freedom of information of an individual, and to provide a forum to enforce
ones right to the truth and to informational privacy. It seeks to protect a persons right to
control information regarding oneself, particularly in instances in which such information is
being collected through unlawful means in order to achieve unlawful ends. (Vivares v. St.
Theresas College, G.R. No. 202666, September 29, 2014)

The writ of habeas data is an independent and summary remedy designed to protect the
image, privacy, honor, information, and freedom of information of an individual, and to provide
a forum to enforce ones right to the truth and to informational privacy.

It seeks to protect a persons right to control information regarding oneself, particularly

in instances in which such information is being collected through unlawful means in order to
achieve unlawful ends. (Gamboa v. Chan, G.R. No. 193636, July 24, 2012)

Writ of habeas data: There must be a nexus between the right to privacy on
the one hand, and the right to life, liberty or security on the other for the writ to be
granted.

It must be emphasized that in order for the privilege of the writ to be granted, there
must exist a nexus between the right to privacy on the one hand, and the right to life, liberty or
security on the other. Section 1 of the Rule on the Writ of Habeas Data reads:

Habeas data The writ of habeas data is a remedy available to any person whose right
to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a
public official or employee, or of a private individual or entity engaged in the gathering,
collecting or storing of data information regarding the person, family, home and
correspondence of the aggrieved party. (Gamboa v. Chan, G.R. No. 193636, July 24, 2012)

In developing the writ of habeas data, the Court aimed to protect an individuals right to
informational privacy, among others. A comparative law scholar has, in fact, defined habeas
dataas "a procedure designed to safeguard individual freedom from abuse in the information
age." The writ, however, will not issue on the basis merely of an alleged unauthorized access to
information about a person. Availment of the writ requires the existence of a nexus between
the right to privacy on the one hand, and the right to life, liberty or security on the other. Thus,
the existence of a persons right to informational privacy and a showing, at least by substantial
evidence, of an actual or threatened violation of the right to privacy in life, liberty or security of
the victim are indispensable before the privilege of the writ may be extended. (Vivares v. St.
Theresas College, G.R. No. 202666, September 29, 2014)

The right to privacy is not absolute. It may succumb to an opposing or

overriding state interest deemed legitimate and compelling.

Clearly, the right to privacy is considered a fundamental right that must be protected
from intrusion or constraint. However, in Standard Chartered Bank v. Senate Committee on
Banks, this Court underscored that the right to privacy is not absolute, viz:

With respect to the right of privacy which petitioners claim respondent has
violated, suffice it to state that privacy is not an absolute right. While it is true that Section
119 | P a g e
 21, Article VI of the Constitution, guarantees respect for the rights of persons affected by
the legislative investigation, not every invocation of the right to privacy should be allowed
to thwart a legitimate congressional inquiry. In Sabio v. Gordon, we have held that the
right of the people to access information on matters of public concern generally prevails
over the right to privacy of ordinary financial transactions. In that case, we declared that
the right to privacy is not absolute where there is an overriding compelling state interest.
Employing the rational basis relationship test, as laid down in Morfe v. Mutuc, there is no
infringement of the individuals right to privacy as the requirement to disclosure
information is for a valid purpose, in this case, to ensure that the government agencies
involved in regulating banking transactions adequately protect the public who invest in
foreign securities. Suffice it to state that this purpose constitutes a reason compelling
enough to proceed with the assailed legislative investigation.

Therefore, when the right to privacy finds tension with a competing state objective, the
courts are required to weigh both notions. In these cases, although considered a fundamental
right, the right to privacy may nevertheless succumb to an opposing or overriding state interest
deemed legitimate and compelling. (Gamboa v. Chan, G.R. No. 193636, July 24, 2012)

An application for a writ of habeas data may be denied if the right to privacy
in life, liberty or security must yield to an overriding legitimate state interest, such
as dismantling of private armed groups (PAGs). The state interest of dismantling
PAGs far outweighs the alleged intrusion on the private life of Gamboa. Thus, the
act of the police in collecting information on individuals suspected of maintaining
PAGs, such as Gamboa, and in sharing and forwarding such information to a
government body tasked to investigate PAGs was not an unlawful act that violated
or threatened her right to privacy in life, liberty or security. The fact that the PNP
released information to the government investigating commission without prior
communication to Gamboa and without affording her the opportunity to refute the
same cannot be interpreted as a violation or threat to her right to privacy since that
act is an inherent and crucial component of intelligence-gathering and investigation.

On 8 December 2009, former President Gloria Macapagal-Arroyo issued Administrative

Order No. 275 (A.O. 275), "Creating an Independent Commission to Address the Alleged
Existence of Private Armies in the Country." The body, which was later on referred to as the
Zearosa Commission, was formed to investigate the existence of private army groups (PAGs)
in the country with a view to eliminating them before the 10 May 2010 elections and
dismantling them permanently in the future. Upon the conclusion of its investigation, the
Zearosa Commission released and submitted to the Office of the President a confidential
report x x x.

Gamboa [Mayor of Dingras, Ilocos Norte] alleged that the Philippine National Police in
Ilocos Norte (PNPIlocos Norte) conducted a series of surveillance operations against her and
her aides,and classified her as someone who keeps a PAG. Purportedly without the benefit of
data verification, PNPIlocos Norte forwarded the information gathered on her to the Zearosa
Commission, thereby causing her inclusion in the Reports enumeration of individuals
maintaining PAGs.

xxx

On 6 and 7 July 2010, ABS-CBN broadcasted on its evening news program the portion of
the Report naming Gamboa as one of the politicians alleged to be maintaining a PAG. Gamboa
averred that her association with a PAG also appeared on print media. Thus, she was publicly
tagged as someone who maintains a PAG on the basis of the unverified information that the
PNP-Ilocos Norte gathered and forwarded to the Zearosa Commission. As a result, she claimed
that her malicious or reckless inclusion in the enumeration of personalities maintaining a PAG as
published in the Report also made her, as well as her supporters and other people identified
with her, susceptible to harassment and police surveillance operations.

Contending that her right to privacy was violated and her reputation maligned and
destroyed, Gamboa filed a Petition dated 9 July 2010 for the issuance of a writ of habeas data
against respondents in their capacities as officials of the PNP-Ilocos Norte. In her Petition, she
prayed for the following reliefs: (a) destruction of the unverified reports from the PNP-Ilocos
120 | P a g e
Norte database; (b) withdrawal of all information forwarded to higher PNP officials; (c)
rectification of the damage done to her honor; (d) ordering respondents to refrain from
forwarding unverified reports against her; and (e) restraining respondents from making
baseless reports.

xxx

The Constitution explicitly mandates the dismantling of private armies and other armed
groups not recognized by the duly constituted authority. x x x

Taking into account these constitutional fiats, it is clear that the issuance of A.O. 275
articulates a legitimate state aim, which is to investigate the existence of PAGs with the ultimate
objective of dismantling them permanently.

To enable the Zearosa Commission to achieve its goals, A.O. 275 clothed it with the
powers of an investigative body, including the power to summon witnesses, administer oaths,
take testimony or evidence relevant to the investigation and use compulsory processes to
produce documents, books, and records. A.O. 275 likewise authorized the Zearosa Commission
to deputize the Armed Forces of the Philippines, the National Bureau of Investigation, the
Department of Justice, the PNP, and any other law enforcement agency to assist the
commission in the performance of its functions.

xxx

[T]he right to informational privacy, as a specific component of the right to privacy, may
yield to an overriding legitimate state interest. In similar fashion, the determination of whether
the privilege of the writ of habeas data, being an extraordinary remedy, may be granted in this
case entails a delicate balancing of the alleged intrusion upon the private life of Gamboa and
the relevant state interest involved.

xxx

The Constitution explicitly mandates the dismantling of private armies and other armed
groups not recognized by the duly constituted authority. x x x

Taking into account these constitutional fiats, it is clear that the issuance of A.O. 275
articulates a legitimate state aim, which is to investigate the existence of [private armed
groups] PAGs with the ultimate objective of dismantling them permanently.

To enable the Zearosa Commission to achieve its goals, A.O. 275 clothed it with the
powers of an investigative body, including the power to summon witnesses, administer oaths,
take testimony or evidence relevant to the investigation and use compulsory processes to
produce documents, books, and records. A.O. 275 likewise authorized the Zearosa Commission
to deputize the Armed Forces of the Philippines, the National Bureau of Investigation, the
Department of Justice, the PNP, and any other law enforcement agency to assist the
commission in the performance of its functions.

xxx

Pursuant to the state interest of dismantling PAGs, as well as the foregoing powers and
functions accorded to the Zearosa Commission and the PNP, the latter collected information on
individuals suspected of maintaining PAGs, monitored them and counteracted their activities.
One of those individuals is herein petitioner Gamboa.

x x x Contrary to the ruling of the trial court, however, the forwarding of information by
the PNP to the Zearosa Commission was not an unlawful act that violated or threatened her
right to privacy in life, liberty or security.

The PNP was rationally expected to forward and share intelligence regarding PAGs with
the body specifically created for the purpose of investigating the existence of these notorious
groups. Moreover, the Zearosa Commission was explicitly authorized to deputize the police
force in the fulfillment of the formers mandate, and thus had the power to request assistance
from the latter.
121 | P a g e
 x x x [T]he fact that the PNP released information to the Zearosa Commission without
prior communication to Gamboa and without affording her the opportunity to refute the same
cannot be interpreted as a violation or threat to her right to privacy since that act is an inherent
and crucial component of intelligence-gathering and investigation. x x x

xxx

[T]he state interest of dismantling PAGs far outweighs the alleged intrusion on the
private life of Gamboa, especially when the collection and forwarding by the PNP of information
against her was pursuant to a lawful mandate. Therefore, the privilege of the writ of habeas
data must be denied. (Gamboa v. Chan, G.R. No. 193636, July 24, 2012)

LIBERTY OF ABODE

The Constitution provides that urban or rural poor dwellers shall not be
evicted nor their dwelling demolished, except in accordance with law and in a just
and humane manner. RA 7279 allows summary evictions and demolition in cases
where persons or entities occupy danger areas and when persons occupy areas
where government infrastructure projects with available funding are about to be
implemented. To ensure that evictions and demolitions are conducted in a just and
humane manner, RA 7279 commands requires compliance with a prescribed
procedure in executing eviction and/or demolition orders. Evictions and demolitions
without any court order under RA 7279 are valid.

This is a petition for prohibition and mandamus to enjoin the public respondents from
evicting the individual petitioners as well as the petitioner associations members from their
dwellings in the cities of San Juan, Navotas and Quezon without any court order, and to compel
the respondents to afford them judicial process prior to evictions and demolitions. The petition
primarily seeks to declare as unconstitutional Section 28 (a) and (b) of Republic Act No. 7279
(RA 7279), otherwise known as Urban Development Housing Act, which authorizes evictions
and demolitions under certain circumstances without any court order.

xxx

We carefully read the petitions and we conclude that they fail to compellingly show the
necessity of examining the constitutionality of Section 28 (a) and (b) of RA 7279 in the light of
Sections 1 [due process] and 6 [liberty of abode and of changing the same], Article 3 of the
1987 Constitution. In Magkalas v. NHA, this Court had already ruled on the validity of evictions
and demolitions without any court order. In that case, we affirmed the validity of Section 2 of
Presidential Decree No. 1472 which authorizes the NHA to summarily eject all informal settlers
colonies on government resettlement projects as well as any illegal occupant in any homelot,
apartment or dwelling unit owned or administered by the NHA. x x x We further stated that
demolitions and evictions may be validly carried out even without a judicial order in the
following instances: x x x

We note that Section 10, Article13 of the 1987 Constitution provides that urban or rural
poor dwellers shall not be evicted nor their dwelling demolished, except in accordance with law
and in a just and humane manner. Paragraph 1, Section 28 of RA 7279 allows summary
evictions and demolition in cases where persons or entities occupy danger areas and when
persons or entities occupy areas where government infrastructure projects with available
funding are about to be implemented.

To ensure that evictions and demolitions are conducted in a just and humane manner,
paragraph 2, Section 28 of RA 7279 commands the public respondents to comply with the
following prescribed procedure in executing eviction and/or demolition orders:

In the execution of eviction or demolition orders involving underprivileged and

homeless citizens, the following shall be mandatory:

(1) Notice upon the effected persons orentities at least thirty (30) days prior to the
date of eviction or demolition;
122 | P a g e
 (2) Adequate consultations on the matter of settlement with the duly designated
representatives of the families to be resettled and the affected communities in the areas
where they are to be relocated;

(3) Presence of local government officials or their representatives during eviction

or demolition;

(4) Proper identification of all persons taking part in the demolition;

(5) Execution of eviction or demolition only during regular office hours from
Mondays to Fridays and during good weather, unless the affected families consent
otherwise;

(6) No use of heavy equipment for demolition except for structures that are
permanent and of concrete materials;

(7) Proper uniforms for members of the Philippine National Police who shall occupy
the first line of law enforcement and observe proper disturbance control procedures; and

(8) Adequate relocation, whether temporary or permanent: Provided, however,

That in cases of eviction and demolition pursuant to a court order involving underprivileged
and homeless citizens, relocation shall be undertaken by the local government unit
concerned and the National Housing Authority with the assistance of other government
agencies within forty-five (45) days from service of notice of final judgment by the court,
after which period the said order shall be executed: Provided, further, That should
relocation not be possible within the said period, financial assistance in the amount
equivalent to the prevailing minimum daily wage multiplied by sixty (60) days shall be
extended to the affected families by the local government unit concerned.

(Kalipunan Ang Damay Ang Mahihirap v. Robredo, G.R. No. 200903, July 22, 2014)

RIGHTS UNDER CUSTODIAL INVESTIGATION

Custodial investigation commences when a person is taken into custody and

is singled out as a suspect in the commission of a crime under investigation and the
police officers begin to ask questions on the suspect's participation therein and
which tend to elicit an admission. If a person, before he is arrested and placed
under custodial investigation, voluntarily confesses to the police the his commission
of a crime, such confession, even if done without the assistance of a lawyer, is not in
violation of his constitutional right, and is admissible as evidence.

POI Macusi narrated that accused-appellant suddenly appeared before them at the
Police Station, all wet and holding a knife. Accused-appellant proclaimed that his father was
already dead. Unsuspecting, PO I Macusi asked who killed accused-appellant's father. Accused-
appellant answered, "Sinaksak ko po yang tatay ko! Napatay ko na po!" POI Torre then got the
knife from accused-appellant and gave it to POI Macusi. POI Macusi placed the knife in the
custodian cabinet in the Police Station. Xxx

xxxx

Accused-appellant argues that his oral confession to POI Torre and PO 1 Macusi, without
the assistance of counsel, is inadmissible in evidence for having been made in blatant violation
of his constitutional right under Article III, Section 12 of the 1987 Constitution.

Section 12, paragraphs 1 and 3, Article III (Bill of Rights) of the 1987 Constitution
mandate that:
SEC. 12. (1) Any person under investigation for the commission of an offense
shall have the right to be informed of his right to remain silent and to have competent
and independent counsel preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights cannot be waived except
in writing and in the presence of counsel.
xxxx

(3) Any confession or admission obtained in violation of this or Section 17 hereof

shall be inadJ!lissible in evidence against him.

123 | P a g e
 The "investigation" in Section I 2, paragraph I, Article III of the I 987 Constitution
pertains to "custodial investigation." Custodial investigation commences when a person is taken
into custody and is singled out as a suspect in the commission of a crime under investigation
and the police officers begin to ask questions on the suspect's participation therein and which
tend to elicit an admission. As we expounded in People v. Marra:

Custodial investigation involves any questioning initiated by law enforcement

officers after a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way. It is only after the investigation ceases to
be a general inquiry into an unsolved crime and begins to focus on a particular
suspect, the suspect is taken into custody, and the police carries out a process of
interrogations that lends itself to eliciting incriminating statements that the rule
begins to operate. (Citation omitted.)

Applying the foregoing definitions, accused-appellant was not under custodial

investigation when he admitted, without assistance of counsel, to POI Torre and POI Macusi
that he stabbed his father to death. Accused-appellant's verbal confession was so
spontaneously and voluntarily given and was not elicited through questioning by the police
authorities. It may be true that POI Macusi asked accused-appellant who killed his father, but
POI Macusi only did so in response to accused-appellant's initial declaration that his father was
already dead. At that point, PO I Macusi still had no idea who actually committed the crime and
did not consider accused-appellant as the suspect in his father's killing. Accused-appellant was
also merely standing before POI Torre and POI Macusi in front of the Camiling Police Station
and was not yet in police custody.

xxxx

Accused-appellant was arrested and subjected to custodial investigation by

the police officers only after his confession. Hence, herein accused-appellant's confession,
even if done without the assistance of a lawyer, is not in violation of his constitutional right
under Section I2, paragraph I, Article III of the I987 Constitution. (People v. Guting, G.R. No.
205412, September 9, 2015)

Rights in custodial interrogation apply only to admissions made in a criminal

investigation but not to those made in an administrative investigation. Thus, an
employees written statement given during an administrative inquiry conducted by
an employer in connection with an anomaly/irregularity he allegedly committed in
the course of his employment -- is admissible as evidence against the employee,
even if he was not assisted by a lawyer when he signed the written statement.

The constitutional proscription against the admissibility of admission or confession of

guilt obtained in violation of Section 12, Article III of the Constitution, is applicable only in
custodial interrogation.

Custodial interrogation means any questioning initiated by law enforcement authorities

after a person is taken into custody or otherwise deprived of his freedom of action in any
significant manner. Indeed, a person under custodial investigation is guaranteed certain rights
which attach upon the commencement thereof, viz: (1) to remain silent, (2) to have competent
and independent counsel preferably of his own choice, and (3) to be informed of the two other
rights above. In the present case, while it is undisputed that petitioner gave an uncounseled
written statement regarding an anomaly discovered in the branch he managed, the following
are clear: (1) the questioning was not initiated by a law enforcement authority but merely by an
internal affairs manager of the bank; and, (2) petitioner was neither arrested nor restrained of
his liberty in any significant manner during the questioning. Clearly, petitioner cannot be said to
be under custodial investigation and to have been deprived of the constitutional prerogative
during the taking of his written statement.

Moreover, in Remolona v. Civil Service Commission, we declared that the right to

counsel "applies only to admissions made in a criminal investigation but not to those made in an
administrative investigation."

124 | P a g e
 xxx

Here, petitioners written statement was given during an administrative inquiry

conducted by his employer in connection with an anomaly/irregularity he allegedly committed in
the course of his employment. No error can therefore be attributed to the courts below in
admitting in evidence and in giving due consideration to petitioners written statement as there
is no constitutional impediment to its admissibility. (Tanenggee v. People, G.R. No. 179448,
June 26, 2013)

The constitutional right to counsel is available only during custodial investigation. If the
investigation is merely administrative conducted by the employer and not a criminal
investigation, the admission made during such investigation may be used as evidence to justify
dismissal. (Manila Water Company v. Rosario, G.R. No. 188747, January 29, 2014)

There is no constitutional right to counsel for resource persons in a

congressional inquiry.

The right to be assisted by counsel can only be invoked by a person under custodial
investigation suspected for the commission of a crime, and therefore attaches only during such
custodial investigation. Since petitioners Locsin and Andal were invited to the public hearings
as resource persons, they cannot therefore validly invoke their right to counsel. (Philcomsat v.
Senate, G.R. No. 180308, June 19, 2012)

Miranda rights apply even to suspects who voluntarily surrender to the police
and are subjected to questioning.

The right to counsel upon being questioned for the commission of a crime is part of the
Miranda rights, which require that:
. . . (a) any person under custodial investigation has the right to remain silent; (b)
anything he says can and will be used against him in a court of law; (c) he has the right
to talk to an attorney before being questioned and to have his counsel present when
being questioned; and (d) if he cannot afford an attorney, one will be provided before any
questioning if he so desires.

The Miranda rights were incorporated in our Constitution but were modified to include
the statement that any waiver of the right to counsel must be made "in writing and in the
presence of counsel."

The invocation of these rights applies during custodial investigation, which begins "when
the police investigation is no longer a general inquiry into an unsolved crime but has begun to
focus on a particular suspect taken into custody by the police who starts the interrogation and
propounds questions to the person to elicit incriminating statements."

It may appear that the Miranda rights only apply when one is "taken into custody by the
police," such as during an arrest. These rights are intended to protect ordinary citizens from the
pressures of a custodial setting:

The purposes of the safeguards prescribed by Miranda are to ensure that the
police do not coerce or trick captive suspects into confessing, to relieve the "inherently
compelling pressures" "generated by the custodial setting itself," "which work to
undermine the individuals will to resist," and as much as possible to free courts from the
task of scrutinizing individual cases to try to determine, after the fact, whether particular
confessions were voluntary. Those purposes are implicated as much by in-custody
questioning of persons suspected of misdemeanours as they are by questioning of
persons suspected of felonies. (Emphasis supplied)

Republic Act No. 743896 expanded the definition of custodial investigation to "include
the practice of issuing an invitation to a person who is investigated in connection with an
offense he is suspected to have committed, without prejudice to the liability of the inviting
officer for any violation of law."

125 | P a g e
 This means that even those who voluntarily surrendered before a police officer must be
apprised of their Miranda rights. (Emphasis supplied) (People v. Chavez, G.R. No. 207950,
September 22, 2014)

RIGHT AGAINST SELF-INCRIMINATION

Paraffin test without a lawyer is valid: The right against self-incrimination

extends only to testimonial compulsion, and not the use of the body of the accused
is examined.

As to the paraffin test to which the appellant was subjected to he raises the question,
under the sixth assigned error, that it was not conducted in the presence of his lawyer. This
right is afforded to any person under investigation for the commission of an offense whose
confession or admission may not be taken unless he is informed of his right to remain silent and
to have competent and independent counsel of his own choice. His right against self-
incrimination is not violated by the taking of the paraffin test of his hands. This constitutional
right extends only to testimonial compulsion and not when the body of the accused is proposed
to be examined as in this case. Indeed, the paraffin test proved positively that he just recently
fired a gun. Again, this kind of evidence buttresses the case of the prosecution. (People v.
Fieldad, G.R. No. 196005, October 1, 2014)

Mandatory drug testing of a person arrested for a non-drug-related offense

violates a persons right to privacy guaranteed under right against unreasonable
searches and seizures and the right against self-incrimination. The constitutional
right against self-incrimination proscribes the use of physical or moral compulsion
to extort communications from the accused and not the inclusion of his body in
evidence when it may be material. A drug test result is immaterial evidence in the
prosecution for non-drug offenses. Moreover, to impose mandatory drug testing on
the accused for all persons arrested regardless of the crime or offense for which the
arrest was made is a blatant attempt to harness a medical test as a tool for criminal
prosecution. We cannot condone drug testing of all arrested persons regardless of
the crime or offense for which the arrest is being made.

The drug test in Section 15 does not cover persons apprehended or arrested for any
unlawful act, but only for unlawful acts listed under Article II of R.A. 9165.

First, "[a] person apprehended or arrested" cannot literally mean any person
apprehended or arrested for any crime. The phrase must be read in context and understood in
consonance with R.A. 9165 [Comprehensive Dangerous Drugs Act of 2002]. Section 15
comprehends persons arrested or apprehended for unlawful acts listed under Article II of the
law.

Hence, a drug test can be made upon persons who are apprehended or arrested for,
among others, the "importation," "sale, trading, administration, dispensation, delivery,
distribution and transportation", "manufacture" and "possession" of dangerous drugs and/or
controlled precursors and essential chemicals; x x x. To make the provision applicable to all
persons arrested or apprehended for any crime not listed under Article II is tantamount to
unduly expanding its meaning. Note that accused appellant here was arrested in the alleged act
of extortion.

A charge for violation of Section 15 of R.A. 9165 is seen as expressive of the intent of
the law to rehabilitate persons apprehended or arrested for the unlawful acts enumerated
above instead of charging and convicting them of other crimes with heavier penalties.

xxx

Furthermore, making the phrase "a person apprehended or arrested" in Section 15

applicable to all persons arrested or apprehended for unlawful acts, not only under R.A. 9165
but for all other crimes, is tantamount to a mandatory drug testing of all persons apprehended
or arrested for any crime. To overextend the application of this provision would run counter to
our pronouncement in Social Justice Society v. Dangerous Drugs Board and Philippine Drug
Enforcement Agency, to wit:
126 | P a g e
 x x x [M]andatory drug testing can never be random and suspicionless. The
ideas of randomness and being suspicionless are antithetical to their being made
defendants in a criminal complaint. They are not randomly picked; neither are they
beyond suspicion. When persons suspected of committing a crime are charged,
they are singled out and are impleaded against their will. The persons thus
charged, by the bare fact of being haled before the prosecutors office and
peaceably submitting themselves to drug testing, if that be the case, do not
necessarily consent to the procedure, let alone waive their right to privacy. To
impose mandatory drug testing on the accused is a blatant attempt to
harness a medical test as a tool for criminal prosecution, contrary to the
stated objectives of RA 6195. Drug testing in this case would violate a
persons right to privacy guaranteed under Sec. 2, Art. III of the
Constitution. Worse still, the accused persons are veritably forced to
incriminate themselves. (Emphasis supplied)

(Dela Cruz v. People, G.R. No. 200748, July 23, 2014)

xxx

We are aware of the prohibition against testimonial compulsion and the allowable
exceptions to such proscription. Cases where non-testimonial compulsion has been allowed
reveal, however, that the pieces of evidence obtained were all material to the principal
cause of the arrest.

The constitutional right of an accused against self-incrimination proscribes the use

of physical or moral compulsion to extort communications from the accused and not the
inclusion of his body in evidence when it may be material. Purely mechanical acts are
not included in the prohibition as the accused does not thereby speak his guilt, hence the
assistance and guiding hand of counsel is not required. (People vs. Olvis, 238 Phil. 513
[1987]) The essence of the right against self-incrimination is testimonial compulsion, that
is, the giving of evidence against himself through a testimonial act. (People vs. Casinillo,
213 SCRA 777 [1992]; People vs. Tranca, 235 SCRA 455 [1994]; People vs. Rondero, 378
Phil. 123 [1999]) Hence ,it has been held that a woman charged with adultery may be
compelled to submit to physical examination to determine her pregnancy; (Villaflor vs.
Summers, 41 Phil. 62 [1920]) and an accused may be compelled to submit to physical
examination and to have a substance taken from his body for medical determination as to
whether he was suffering from gonorrhea which was contracted by his victim;(U.S. vs. Tan
Teng, 23 Phil. 145 [1912]) to expel morphine from his mouth; (U.S. vs. Ong Siu Hong, 36
Phil. 735 [1917]) to have the outline of his foot traced to determine its identity with bloody
footprints; (U.S. vs. Salas, 25 Phil. 337 [1913]; U.S. vs. Zara, 42 Phil. 308 [1921]) and to
be photographed or measured, or his garments or shoes removed or replaced, or to move
his body to enable the foregoing things to be done.(People vs. Otadora, 86 Phil. 244
[1950])28 (Emphasis supplied)

In the instant case, we fail to see how a urine sample could be material to the charge of
extortion. x x x

xxx

In the Gutang et al. case, the Court clarified that "what the Constitution prohibits is the
use of physical or moral compulsion to extort communication from the accused, but not an
inclusion of his body in evidence, when it may be material." x x x

We emphasize that the circumstances in Gutang are clearly different from the
circumstances of petitioner in the instant case. First, Gutang was arrested in relation to a drug
case. Second, he volunteered to give his urine. Third, there were other pieces of evidence that
point to his culpability for the crimes charged. In the present case, though, petitioner was
arrested for extortion; he resisted having his urine sample taken; and finally, his urine sample
was the only available evidence that was used as basis for his conviction for the use of illegal
drugs.

The drug test was a violation of petitioners right to privacy and right against self-
incrimination.

xxx

127 | P a g e
 x x x We cannot condone drug testing of all arrested persons regardless of the crime or
offense for which the arrest is being made. (Dela Cruz v. People, G.R. No. 200748, July 23,
2014)

RIGHT TO BAIL

Bail protects the right of the accused to due process and to be presumed
innocent

In all criminal prosecutions, the accused shall be presumed innocent until the contrary is
proved. The presumption of innocence is rooted in the guarantee of due process, and is
safeguarded by the constitutional right to be released on bail, and further binds the court to
wait until after trial to impose any punishment on the accused.

It is worthy to note that bail is not granted to prevent the accused from committing
additional crimes. The purpose of bail is to guarantee the appearance of the accused at the
trial, or whenever so required by the trial court. The amount of bail should be high enough to
assure the presence of the accused when so required, but it should be no higher than is
reasonably calculated to fulfill this purpose. Thus, bail acts as a reconciling mechanism to
accommodate both the accuseds interest in his provisional liberty before or during the trial, and
the societys interest in assuring the accuseds presence at trial. (Enrile v. Sandiganbayan, G.R.
No. 213847, August 18, 2015)

The general rule is, therefore, that any person, before being convicted of any
criminal offense, shall be bailable, unless he is charged with a capital offense, or
with an offense punishable with reclusion perpetua or life imprisonment, and the
evidence of his guilt is strong.

The right to bail is expressly afforded by Section 13, Article III (Bill of Rights) of the
Constitution, viz.:

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

This constitutional provision is repeated in Section 7, Rule 114 of the Rules of Court,
xxx.

The general rule is, therefore, that any person, before being convicted of any criminal
offense, shall be bailable, unless he is charged with a capital offense, or with an offense
punishable with reclusion perpetua or life imprisonment, and the evidence of his guilt is strong.
Hence, from the moment he is placed under arrest, or is detained or restrained by the officers
of the law, he can claim the guarantee of his provisional liberty under the Bill of Rights, and he
retains his right to bail unless he is charged with a capital offense, or with an offense
punishable with reclusion perpetua or life imprisonment, and the evidence of his guilt is strong.
Once it has been established that the evidence of guilt is strong, no right to bail shall be
recognized.

As a result, all criminal cases within the competence of the Metropolitan Trial Court,
Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court are bailable
as matter of right because these courts have no jurisdiction to try capital offenses, or offenses
punishable with reclusion perpetua or life imprisonment. Likewise, bail is a matter of right prior
to conviction by the Regional Trial Court (RTC) for any offense not punishable by death,
reclusion perpetua, or life imprisonment, or even prior to conviction for an offense punishable
by death, reclusion perpetua, or life imprisonment when evidence of guilt is not strong.

On the other hand, the granting of bail is discretionary: (1) upon conviction by the RTC
of an offense not punishable by death, reclusion perpetua or life imprisonment;29 or (2) if the
128 | P a g e
RTC has imposed a penalty of imprisonment exceeding six years, provided none of the
circumstances enumerated under paragraph 3 of Section 5, Rule 114 is present, xxxx.

For purposes of admission to bail, the determination of whether or not evidence of guilt
is strong in criminal cases involving capital offenses, or offenses punishable with reclusion
perpetua or life imprisonment lies within the discretion of the trial court. But, as the Court has
held in Concerned Citizens v. Elma, such discretion may be exercised only after the hearing
called to ascertain the degree of guilt of the accused for the purpose of whether or not he
should be granted provisional liberty. It is axiomatic, therefore, that bail cannot be allowed
when its grant is a matter of discretion on the part of the trial court unless there has been a
hearing with notice to the Prosecution. (Enrile v. Sandiganbayan, G.R. No. 213847, August 18,
2015)

Bail for the provisional liberty of the accused, regardless of the crime
charged, should be allowed independently of the merits of the charge, provided his
continued incarceration is clearly shown to be injurious to his health or to endanger
his life.

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

Nonetheless, in now granting Enriles petition for certiorari, the Court is guided by the earlier
mentioned principal purpose of bail, which is to guarantee the appearance of the accused
at the trial, or whenever so required by the court. The Court is further mindful of the
Philippines responsibility in the international community arising from the national commitment
under the Universal Declaration of Human Rights to:

x x x uphold the fundamental human rights as well as value the worth and dignity of
every person. This commitment is enshrined in Section II, Article II of our Constitution
which provides: The State values the dignity of every human person and guarantees full
respect for human rights. The Philippines, therefore, has the responsibility of
protecting and promoting the right of every person to liberty and due process,
ensuring that those detained or arrested can participate in the proceedings
before a court, to enable it to decide without delay on the legality of the
detention and order their release if justified. In other words, the Philippine
authorities are under obligation to make available to every person under
detention such remedies which safeguard their fundamental right to liberty.
These remedies include the right to be admitted to bail.

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; and (2) that there
exist special, humanitarian and compelling circumstances.

In our view, his social and political standing and his having immediately surrendered to
the authorities upon his being charged in court indicate that the risk of his flight or escape from
this jurisdiction is highly unlikely. His personal disposition from the onset of his indictment for
plunder, formal or otherwise, has demonstrated his utter respect for the legal processes of this
country. We also do not ignore that at an earlier time many years ago when he had been
charged with rebellion with murder and multiple frustrated murder, he already evinced a similar
personal disposition of respect for the legal processes, and was granted bail during the
pendency of his trial because he was not seen as a flight risk. With his solid reputation in both
his public and his private lives, his long years of public service, and historys judgment of him
being at stake, he should be granted bail.

The currently fragile state of Enriles health presents another compelling justification for
his admission to bail, but which the Sandiganbayan did not recognize.

xxxx

129 | P a g e
 Based on foregoing, there is no question at all that Enriles advanced age and ill health
required special medical attention.

xxxx

Bail for the provisional liberty of the accused, regardless of the crime charged, should be
allowed independently of the merits of the charge, provided his continued incarceration is
clearly shown to be injurious to his health or to endanger his life. Indeed, denying him bail
despite imperiling his health and life would not serve the true objective of preventive
incarceration during the trial.
Granting bail to Enrile on the foregoing reasons is not unprecedented. The Court has
already held in Dela Rama v. The Peoples Court:

x x x This court, in disposing of the first petition for certiorari, held the following:

x x x [U]nless allowance of bail is forbidden by law in the particular case, the

illness of the prisoner, independently of the merits of the case, is a
circumstance, and the humanity of the law makes it a consideration which
should, regardless of the charge and the stage of the proceeding, influence the
court to exercise its discretion to admit the prisoner to bail; x x x

xxxx

It is relevant to observe that granting provisional liberty to Enrile will then enable him to
have his medical condition be properly addressed and better attended to by competent
physicians in the hospitals of his choice. This will not only aid in his adequate preparation of his
defense but, more importantly, will guarantee his appearance in court for the trial.

xxx

Accordingly, we conclude that the Sandiganbayan arbitrarily ignored the objective of bail
to ensure the appearance of the accused during the trial; and unwarrantedly disregarded the
clear showing of the fragile health and advanced age of Enrile. As such, the Sandiganbayan
gravely abused its discretion in denying Enriles Motion To Fix Bail. (Enrile v. Sandiganbayan,
G.R. No. 213847, August 18, 2015)

DOUBLE JEOPARDY

The first jeopardy attaches only (a) after a valid indictment; (b) before a
competent court; (c) after arraignment; (d) when a valid plea has been entered; and
(e) when the accused was acquitted or convicted, or the case was dismissed or
otherwise terminated without his express consent. Since the preliminary
investigation stage is not part of the trial, the dismissal of a case during preliminary
investigation would not put the accused in danger of double jeopardy in the event of
a re-investigation or the filing of a similar case.

It should be borne in mind that for a claim of double jeopardy to prosper, petitioner has
to prove that a first jeopardy has attached prior to the second. As stated in Braza v.
Sandiganbayan, "[t]he first jeopardy attaches only (a) after a valid indictment; (b) before a
competent court; ( c ) after arraignment; (d) when a valid plea has been entered; and ( e)
when the accused was acquitted or convicted, or the case was dismissed or otherwise
terminated without his express consent." In this case, the complaint before the Office of the
Deputy Ombudsman for the Military was dismissed as early as the preliminary investigation
stage, thus, there was as yet, no indictment to speak of. No complaint or Information has been
brought before a competent court. Hence, none of the aforementioned events has transpired
for the first jeopardy to have attached.

In Vincoy v. Court of Appeals, which is closely analogous to the present case, the private
complainant therein initially filed a complaint with the Office of the City Prosecutor of Pasay
City, but said office dismissed the complaint. Private complainant then re-filed the complaint
with the Office of the City Prosecutor of Pasig City. The Office of the Prosecutor of Pasig City

130 | P a g e
found probable cause and filed the Information against the accused therein. In said case, the
Court categorically held that:

The dismissal of a similar complaint x x x filed by [private complainant] before the

City Prosecutor's Office of Pasay City will not exculpate the petitioner. The case cannot bar
petitioner's prosecution. It is settled that the dismissal of a case during its preliminary
investigation does not constitute double jeopardy since a preliminary investigation is not
part of the trial and is not the occasion for the full and exhaustive display of the parties'
evidence but only such as may engender a well-grounded belief that an offense has been
committed and accused is probably guilty thereof. For this reason, it cannot be considered
equivalent to a judicial pronouncement of acquital.

The fore going ruling was reiterated in Trinidad v. Office of the Ombudsman, where the
Court has categorically ruled that since the preliminary investigation stage is not part of the
trial, the dismissal of a case during preliminary investigation would not put the accused in
danger of double jeopardy in the event of a re-investigation or the filing of a similar case. An
investigating body is not bound by the findings or resolution of another such office, tribunal or
agency which may have had before it a different or incomplete set of evidence than what had
been presented during the previous investigation. Therefore, petitioner's indictment pursuant to
the findings of the Office of the City Prosecutor, and his eventual conviction for the crime of
grave threats, has not placed him in double jeopardy. (Jamaca v. People, G.R. No. 183681, July
27, 2015)

If the accused were never arraigned in lower court, and the criminal case was
dismissed upon the order of the Supreme Court, a first jeopardy never attached.

Double jeopardy only applies when: (1) a first jeopardy attached; (2) it has been validly
terminated; and (3) a second jeopardy is for the same offense as in the first.

A first jeopardy attaches only after the accused has been acquitted or convicted, or the
case has been dismissed or otherwise terminated without his express consent, by a competent
court in a valid indictment for which the accused has entered a valid plea during arraignment.

To recall, on 12 May 2006, an Information for the crime of rebellion, as defined and
penalized under Article 134 in relation to Article 135 of the Revised Penal Code, docketed as
Criminal Case No. 06-944 was filed before the RTC Makati against petitioners and several
others.

However, petitioners were never arraigned in Criminal Case No. 06-944. Even before the
indictment for rebellion was filed before the RTC Makati, petitioners Ocampo, Echanis and
Ladlad had already filed a petition before this Court to seek the nullification of the Orders of the
DOJ denying their motion for the inhibition of the members of the prosecution panel due to lack
of impartiality and independence. When the indictment was filed, petitioners Ocampo, Echanis
and Ladlad filed supplemental petitions to enjoin the prosecution of Criminal Case No. 06-944.
We eventually ordered the dismissal of the rebellion case. It is clear then that a first jeopardy
never had a chance to attach. (Ocampo v. Abando, G.R. No. 176830, February 11, 2014)

The protection against double jeopardy may be invoked only for the same
offense or identical offenses. Where two different laws (or articles of the same
code) defines two crimes, prior jeopardy as to one of them is no obstacle to a
prosecution of the other, although both offenses arise from the same fact, if each
crime involves some important act which is not an essential element of the other.

Section 730 of Rule 117 lays down the requisites in order that the defense of double
jeopardy may prosper. There is double jeopardy when the following requisites are present: (1)
a first jeopardy attached prior to the second; (2) the first jeopardy has been validly terminated;
and (3) a second jeopardy is for the same offense as in the first. As to the first requisite, the
first jeopardy attaches only (a) after a valid indictment; (b) before a competent court; (c) after
arraignment; (d) when a valid plea has been entered; and (e) when the accused was acquitted
or convicted, or the case was dismissed or otherwise terminated without his express consent. In
this case, there is no dispute that the first and second requisites of double jeopardy are present
in view of the MeTC Resolution dated August 13, 2012 which granted petitioner's demurrer to
evidence and acquitted her in a criminal case for falsification of private document in Criminal
131 | P a g e
Case No. 370119-20-CR. Petitioner's argument dwells on whether the third requisite of double
jeopardy a second jeopardy is for the same offense as in the first is present. x x x

Thus, the remaining question to be resolved is whether the offense charged in the
information for Section 46 of RA 6938 necessarily includes or is necessarily included in a crime
for falsification of private document under Article 172 of the Revised Penal Code, as amended
(RPC). The test to determine whether an offense necessarily includes or is necessarily included
in the other is provided under Section 5, Rule 120 of the Rules of Court:

An offense charged necessarily includes the offense proved when some of the
essential elements or ingredients of the former, as alleged in the complaint or information,
constitute the latter. And an offense charged is necessarily included in the offense proved,
when the essential ingredients of the former constitute or form part of those constituting
the latter.

xxx

Verily, there is nothing common or similar between the essential elements of the crimes
of falsification of private document under Article 172 (2) of the RPC and that of violation of
Section 46 of RA 6938, as alleged in the Informations filed against petitioner. As neither of the
said crimes can be said to necessarily include or is necessarily included in the other, the third
requisite for double jeopardy to attacha second jeopardy is for the same offense as in the
firstis, therefore, absent. Not only are their elements different, they also have a distinct
nature, i.e., the former is malum in se, as what makes it a felony is criminal intent on the part
of the offender, while the latter is malum prohibitum, as what makes it a crime is the special
law enacting it.

Moreover, in People v. Doriguez, the Court held:

It is a cardinal rule that the protection against double jeopardy may be invoked only for
the same offense or identical offenses. A simple act may offend against two (or more) entirely
distinct and unrelated provisions of law, and if one provision requires proof of an additional fact
or element which the other does not, an acquittal or conviction or a dismissal of the information
under one does not bar prosecution under the other. Phrased else wise, where two different
laws (or articles of the same code) defines two crimes, prior jeopardy as to one of them is no
obstacle to a prosecution of the other, although both offenses arise from the same fact, if each
crime involves some important act which is not an essential element of the other.

Since the Informations filed against petitioner were for separate and distinct offenses as
discussed abovethe first against Article 172 (2) of the Revised Penal Code and the second
against Section 46 of the Cooperative Code (RA 6938)one cannot be pleaded as a bar to the
other under the rule on double jeopardy. Besides, it is basic in criminal procedure that an
accused may be charged with as many crimes as defined in our penal laws even if these arose
from one incident. Thus, where a single act is directed against one person but said act
constitutes a violation of two or more entirely distinct and unrelated provisions of law, or by a
special law and the Revised Penal Code, as in this case, the prosecution against one is not an
obstacle to the prosecution of the other. (Assistio v. People, G.R. No. 200465, April 20, 2015)

The provisional dismissal of the case does not operate as an acquittal since its
dismissal is made with the express consent of the accused; thus, double jeopardy
does not attach.

The proscription against double jeopardy presupposes that an accused has been
previously charged with an offense, and the case against him is terminated either by his
acquittal or conviction, or dismissed in any other manner without his consent. As a general rule,
the following requisites must be present for double jeopardy to attach: (1) a valid indictment,
(2) before a court of competent jurisdiction, (3) the arraignment of the accused, (4) a valid plea
entered by him, and (5) the acquittal or conviction of the accused, or the dismissal or
termination of the case against him without his express consent. However, there are two (2)
exceptions to the foregoing rule, and double jeopardy may attach even if the dismissal of the
case was with the consent of the accused: first, when there is insufficiency of evidence to
support the charge against him; and second, where there has been an unreasonable delay in
the proceedings, in violation of the accuseds right to speedy trial.

132 | P a g e
 In the instant case, while the first four requisites are present, the last requisite is
lacking, considering that here the dismissal was merely provisional and it was done with the
express consent of the accused-petitioner. Petitioner is not in danger of being twice put in
jeopardy with the reopening of the case against her as it is clear that the case was only
provisionally dismissed by the trial court. The requirement that the dismissal of the case must
be without the consent of the accused is not present in this case. Neither does the case fall
under any of the aforementioned exceptions because, in fact, the prosecution had failed to
continue the presentation of evidence due to the absence of the witnesses, thus, the fact of
insufficiency of evidence cannot be established. Likewise, we find no unreasonable delay in the
proceedings that would be tantamount to violation of the accused's right to speedy trial.
(Saldariega v. Panganiban, G.R. Nos. 211933 & 211960, April 15, 2015)

RIGHT TO CONFRONTATION

Preliminary investigation is not a part of trial and it is only in a trial where an

accused can demand the full exercise of his rights, such as the right to confront and
cross-examine his accusers to establish his innocence.

Moreover, a person under preliminary investigation, as Sen. Estrada is in the present

case when he filed his Request, is not yet an accused person, and hence cannot demand the
full exercise of the rights of an accused person:

A finding of probable cause needs only to rest on evidence showing that more likely than
not a crime has been committed and was committed by the suspects. x x x A finding of
probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt.

Considering the low quantum and quality of evidence needed to support a finding of
probable cause, we also hold that the DOJ Panel did not gravely abuse its discretion in refusing
to call the NBI witnesses for clarificatory questions. The decision to call witnesses for
clarificatory questions is addressed to the sound discretion of the investigator and the
investigator alone. If the evidence on hand already yields a probable cause, the investigator
need not hold a clarificatory hearing. To repeat, probable cause merely implies probability of
guilt and should be determined in a summary manner. Preliminary investigation is not a part of
trial and it is only in a trial where an accused can demand the full exercise of his rights, such as
the right to confront and cross-examine his accusers to establish his innocence. In the case at
bar, the DOJ Panel correctly adjudged that enough evidence had been adduced to establish
probable cause and clarificatory hearing was unnecessary.

x x x [T]he right to a preliminary investigation is merely a statutory right, not part of the
"fundamental and essential requirements" of due process as prescribed in Ang Tibay and
amplified in GSIS. Thus, a preliminary investigation can be taken away by legislation. The
constitutional right of an accused to confront the witnesses against him does not apply in
preliminary investigations; nor will the absence of a preliminary investigation be an infringement
of his right to confront the witnesses against him. A preliminary investigation may be done
away with entirely without infringing the constitutional right of an accused under the due
process clause to a fair trial. (Estrada v. Office of the Ombudsman, G.R. Nos. 212140-41,
January 21, 2015)

RIGHT TO INFORMATION

The peoples constitutional right to information is intertwined with the

governments constitutional duty of full public disclosure of all transactions
involving public interest. The people have the right to access the papers and
documents relating to the company profile and legal capacity of the winning bidder
for a government project.

The peoples right to information is provided in Section 7, Article III of the Constitution,
which reads:

133 | P a g e
 Sec. 7. The right of the people to information on matters of public concern shall
be recognized. Access to official records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to government research data used as
basis for policy development, shall be afforded the citizen, subject to such limitations as
may be provided by law. (Underscoring supplied.)

The peoples constitutional right to information is intertwined with the governments

constitutional duty of full public disclosure of all transactions involving public interest. Section
28, Article II of the Constitution declares the State policy of full transparency in all transactions
involving public interest, to wit:

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements apolicy of full public disclosure of all its transactions involving public
interest. (Italics supplied.)

The foregoing constitutional provisions seek to promote transparency in policy-making

and in the operations of the government, as well as provide the people sufficient information to
exercise effectively other constitutional rights. They are also essential to hold public officials "at
all times x xx accountable to the people," for unless citizens have the proper information, they
cannot hold public officials accountable for anything. Armed with the right information, citizens
can participate in public discussions leading to the formulation of government policies and their
effective implementation. An informed citizenry is essential to the existence and proper
functioning of any democracy.

xxx

In Chavez v. Public Estates Authority involving the execution of an Amended Joint

Venture Agreement on the disposition of reclaimed lands without public bidding, the Court held:

Information, however, on on-going evaluation or review of bids or proposals being

undertaken by the bidding or review committee is not immediately accessible under the right to
information. While the evaluation or review is still on-going, there are no "official acts,
transactions, or decisions" on the bids or proposals. However, once the committee makes its
official recommendation, there arises a "definite proposition" on the part of the government. From
this moment, the publics right to information attaches, and any citizen can access all the non-
proprietary information leading to such definite proposition. x x x

Chavez v. Public Estates Authority thus laid down the rule that the constitutional right to
information includes official information on on-going negotiations before a final contract. The
information, however, must constitute definite propositions by the government and should not
cover recognized exceptions like privileged information, military and diplomatic secrets and
similar matters affecting national security and public order. In addition, Congress has prescribed
other limitations on the right to information in several legislations.

In this case, petitioners first letter dated April 20, 2010 requested for documents such
as Terms of Reference and proposed bids submitted by the bidders. At that time, the bids were
yet to be submitted at the bidding scheduled on April 28, 2010. It is also to be noted that
PSALMs website carried news and updates on the sale of AHEPP, providing important
information on bidding activities and clarifications regarding the terms and conditions of the
Asset Purchase Agreement (APA) to be signed by PSALM and the winning bidder (Buyer).

In Chavez v. National Housing Authority, the Court held that pending the enactment of
an enabling law, the release of information through postings in public bulletin boards and
government websites satisfies the constitutional requirement, thus:

xxx

The Court, however, distinguished the duty to disclose information from the duty to
permit access to information on matters of public concern under Sec. 7, Art. III of the
Constitution. Unlike the disclosure of information which is mandatory under the Constitution,
the other aspect of the peoples right to know requires a demand or request for one to gain
access to documents and paper of the particular agency. Moreover, the duty to disclose covers
only transactions involving public interest, while the duty to allow access has a broader scope of
information which embraces not only transactions involving public interest, but any matter
contained in official communications and public documents of the government agency. Such
relief must be granted to the party requesting access to official records, documents and papers
relating to official acts, transactions, and decisions that are relevant to a government contract.

134 | P a g e
 Here, petitioners second letter dated May 14, 2010 specifically requested for detailed
information regarding the winning bidder, such as company profile, contact person or
responsible officer, office address and Philippine registration. But before PSALM could respond
to the said letter, petitioners filed the present suit on May 19, 2010. PSALMs letter-reply dated
May 21, 2010 advised petitioners that their letter-re quest was referred to the counsel of K-
Water. We find such action insufficient compliance with the constitutional requirement and
inconsistent with the policy under EPIRA to implement the privatization of NPC assets in an
"open and transparent" manner. PSALMs evasive response to the request for information was
unjustified because all bidders were required to deliver documents such as company profile,
names of authorized officers/representatives, financial and technical experience.

Consequently, this relief must be granted to petitioners by directing PSALM to allow

petitioners access to the papers and documents relating to the company profile and legal
capacity of the winning bidder. (Initiatives For Dialogue And Empowerment Through Alternative
Legal Services, Inc. v. Power Sector Assets and Liabilities Management Corporation, G.R. No.
192088, October 9, 2012)

ACADEMIC FREEDOM

Academic freedom gives institutions of higher learning the right to impose

disciplinary sanctions, which includes the power to dismiss or expel students who
violate disciplinary rules. The power to discipline students is subsumed in the
academic freedom to determine what may be taught, how it shall be taught and
who may be admitted to study.

Respondents likewise contend that, as an academic institution, the PMA has the inherent
right to promulgate reasonable norms, rules and regulations that it may deem necessary for the
maintenance of school discipline, which is specifically mandated by Section 3 (2), Article XIV of
the 1987 Constitution. As the premiere military educational institution of the AFP in accordance
with Section 30, Article III of C.A. No. 1 and Sections 58 and 59, Chapter 9, Subtitle II, Title
VIII, Book IV of E.O. No. 292 ("Administrative Code of 1987"), the PMA is an institution that
enjoys academic freedom guaranteed by Section 5 (2), Article XIV of the 1987 Constitution. In
Miriam College Foundation, Inc. v. Court of Appeals, it was held that concomitant with such
freedom is the right and duty to instill and impose discipline upon its students. Also, consistent
with lsabelo, Jr. v. Perpetual Help College of Rizal, Inc. and Ateneo de Manila University v.
Capulong, the PMA has the freedom on who to admit (and, conversely, to expel) given the high
degree of discipline and honor expected from its students who are to form part of the AFP.

xxx

In their Reply, petitioners counter that, as shown in lsabelo, Jr. and Ateneo, academic
freedom is not absolute and cannot be exercised in blatant disregard of the right to due process
and the 1987 Constitution. x x x

While both parties have valid points to consider, the arguments of respondents are more
in line with the facts of this case. x x x

xxx

Academic freedom or, to be precise, the institutional autonomy of universities and

institutions of higher learning, has been enshrined in our Constitutions of 1935, 1973, and
1987. In Garcia, this Court espoused the concurring opinion of U.S. Supreme Court Justice Felix
Frankfurter in Sweezy v. New Hampshire, which enumerated "the four essential freedoms" of a
university: To determine for itself on academic grounds (1) who may teach, (2) what may be
taught, (3) how it shall be taught, and (4) who may be admitted to study. An educational
institution has the power to adopt and enforce such rules as may be deemed expedient for its
government, this being incident to the very object of incorporation, and indispensable to the
successful management of the college. x x x

The schools' power to instill discipline in their students is subsumed in their academic
freedom and that "the establishment of rules governing university-student relations, particularly
those pertaining to student discipline, may be regarded as vital, not merely to the smooth and
135 | P a g e
efficient operation of the institution, but to its very survival." x x x In this regard, the Court has
always recognized the right of schools to impose disciplinary sanctions, which includes the
power to dismiss or expel, on students who violate disciplinary rules. In Miriam College
Foundation, Inc. v. Court of Appeals, this Court elucidated:
The right of the school to discipline its students is at once apparent in the third
freedom, i.e., "how it shall be taught." A school certainly cannot function in an atmosphere
of anarchy.

Thus, there can be no doubt that the establishment of an educational institution

requires rules and regulations necessary for the maintenance of an orderly educational
program and the creation of an educational environment conducive to learning. Such rules
and regulations are equally necessary for the protection of the students, faculty, and
property.

Moreover, the school has an interest in teaching the student discipline, a

necessary, if not indispensable, value in any field of learning. By instilling discipline, the
school teaches discipline. Accordingly, the right to discipline the student likewise finds basis
in the freedom "what to teach." Incidentally, the school not only has the right but the duty
to develop discipline in its students. The Constitution no less imposes such duty.

[All educational institutions] shall inculcate patriotism and nationalism, foster love
of humanity, respect for human rights, appreciation of the role of national heroes in the
historical development of the country, teach the rights and duties of citizenship, strengthen
ethical and spiritual values, develop moral character and personal discipline, encourage
critical and creative thinking, broaden scientific and technological knowledge, and promote
vocational efficiency.

In Angeles vs. Sison, we also said that discipline was a means for the school to
carry out its responsibility to help its students "grow and develop into mature, responsible,
effective and worthy citizens of the community."

Finally, nowhere in the above formulation is the right to discipline more evident
than in "who may be admitted to study." If a school has the freedom to determine whom
to admit, logic dictates that it also has the right to determine whom to exclude or expel, as
well as upon whom to impose lesser sanctions such as suspension and the withholding of
graduation privileges.

The power of the school to impose disciplinary measures extends even after graduation
for any act done by the student prior thereto. In University of the Phils. Board of Regents v.
Court of Appeals, We upheld the university's withdrawal of a doctorate degree already
conferred on a student who was found to have committed intellectual dishonesty in her
dissertation. Thus:

Art. XIV, 5 (2) of the Constitution provides that "[a]cademic freedom shall be
enjoyed in all institutions of higher learning." This is nothing new. The 1935 Constitution
and the 1973 Constitution likewise provided for the academic freedom or, more precisely,
for the institutional autonomy of universities and institutions of higher learning. As
pointed out by this Court in Garcia v. Faculty Admission Committee, Loyola School of
Theology, it is a freedom granted to "institutions of higher learning" which is thus given
"a wide sphere of authority certainly extending to the choice of students." If such
institution of higher learning can decide who can and who cannot study in it, it certainly
can also determine on whom it can confer the honor and distinction of being its
graduates.

Where it is shown that the conferment of an honor or distinction was obtained

through fraud, a university has the right to revoke or withdraw the honor or distinction it
has thus conferred. This freedom of a university does not terminate upon the
"graduation" of a student, as the Court of Appeals held. For it is precisely the
"graduation" of such a student that is in question. xxx

Wide indeed is the sphere of autonomy granted to institutions of higher learning,

xxx.

Under the U.P. Charter, the Board of Regents is the highest governing body of
the University of the Philippines. It has the power to confer degrees upon the
recommendation of the University Council. It follows that if the conferment of a degree is
founded on error or fraud, the Board of Regents is also empowered, subject to the
observance of due process, to withdraw what it has granted without violating a student's
rights. An institution of higher learning cannot be powerless if it discovers that an
academic degree it has conferred is not rightfully deserved. xxx It should be empowered,
136 | P a g e
 as an act of self-defense, to take measures to protect itself from serious threats to its
integrity.

xxx

x x x As the primary training and educational institution of the AFP, [PMA] certainly has
the right to invoke academic freedom in the enforcement of its internal rules and regulations,
which are the Honor Code and the Honor System in particular.

The Honor Code is a set of basic and fundamental ethical and moral principle. It is the
minimum standard for cadet behavior and serves as the guiding spirit behind each cadet's
action. It is the cadet's responsibility to maintain the highest standard of honor. (Cudia v. The
Superintendent of the Philippine Military Academy, G.R. No. 211362, February 24, 2015)

137 | P a g e