Notes and Cases

POLITICAL LAW AND PUBLIC INTERNATIONAL LAW

Attorney EDWIN REY SANDOVAL
January 16 – July 28, 2017

POLITICAL LAW

THE CONSTITUTION

The Doctrine of Constitutional Supremacy

Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the
Constitution, that law or contract, whether promulgated by the legislative or by the executive branch or entered
into by private persons for private purposes, is null and void and without any force and effect. Thus, since the
Constitution is the fundamental, paramount and supreme law of the nation, it is deemed written in every statute
and contract. (Manila Prince Hotel v. GSIS, 267 SCRA 408 [1997] [Bellosillo])

Self-executing and Non-self-executing Provisions of the Constitution

A provision which lays down a general principle, such as those found in Article II of the 1987
Constitution, is usually not self-executing. But a provision which is complete in itself and becomes operative
without the aid of supplementary or enabling legislation, or that which supplies sufficient rule by means of
which the right it grants may be enjoyed or protected, is self-executing. Thus a constitutional provision is self-
executing if the nature and extent of the right conferred and the liability imposed are fixed by the Constitution
itself, so that they can be determined by an examination and construction of its terms, and there is no language
indicating that the subject is referred to the legislature for action. (Manila Prince Hotel v. GSIS, 267 SCRA
408 [1997] [Bellosillo])

Provisions of the Constitution are presumed to be Self-executing

Unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate,
the presumption now is that all provisions are self-executing. If the constitutional provisions are treated as
requiring legislation instead of self-executing, the legislature would have the power to ignore and practically
nullify the mandate of the fundamental law. This can be cataclysmic. (Manila Prince Hotel v. GSIS, 267
SCRA 408 [1997] [Bellosillo])

The Effect of Declaration of Unconstitutionality of a Legislative or Executive Act

A legislative or executive act that is declared void for being unconstitutional cannot give rise to any right
or obligation. (Commissioner of Internal Revenue v. San Roque Power Corporation, G.R. No. 187485,
October 8, 2013 cited in Maria Carolina P. Araullo, et al. v. Benigno Simeon C. Aquino III, et al. G.R. No.,
209287, 728 SCRA 1, July 1, 2014, En Banc [Bersamin])

The Operative Fact Doctrine

The doctrine of operative fact recognizes the existence of the law or executive act prior to the
determination of its unconstitutionality as an operative fact that produced consequences that cannot always be
erased, ignored or disregarded. In short, it nullifies the void law or executive act but sustains its effects. It
provides an exception to the general rule that a void or unconstitutional law produces no effect. But its use
must be subjected to great scrutiny and circumspection, and it cannot be invoked to validate an
unconstitutional law or executive act, but is resorted to only as a matter of equity and fair play. It applies only
to cases where extraordinary circumstances exist, and only when the extraordinary circumstances have met
the stringent conditions that will permit its application. (Maria Carolina P. Araullo, et al. v. Benigno Simeon
C. Aquino III, et al. G.R. No., 209287, 728 SCRA 1, July 1, 2014, En Banc [Bersamin])

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Operative Fact Doctrine Applied in the DAP (Disbursement Acceleration Program) Case

We find the doctrine of operative fact applicable to the adoption and implementation of the DAP. Its
application to the DAP proceeds from equity and fair play. The consequences resulting from the DAP and its
related issuances could not be ignored or could no longer be undone.

As already mentioned, the implementation of the DAP resulted into the use of savings pooled by the
Executive to finance the PAPs that were not covered in the GAA, or that did not have proper appropriation
covers, as well as to augment items pertaining to other departments of the Government in clear violation of the
Constitution. To declare the implementation of the DAP unconstitutional without recognizing that its prior
implementation constituted an operative fact that produced consequences in the real as well as juristic worlds
of the Government and the Nation is to be impractical and unfair. Unless the doctrine is held to apply, the
Executive as the disburser and the offices under it and elsewhere as the recipients could be required to undo
everything that they had implemented in good faith under the DAP. That scenario would be enormously
burdensome for the Government. Equity alleviates such burden.

The other side of the coin is that it has been adequately shown as to be beyond debate that the
implementation of the DAP yielded undeniably positive results that enhanced the economic welfare of the
country. To count the positive results may be impossible, but the visible ones, like public infrastructure, could
easily include roads, bridges, homes for the homeless, hospitals, classrooms and the like. Not to apply the
doctrine of operative fact to the DAP could literally cause the physical undoing of such worthy results by
destruction, and would result in most undesirable wastefulness. (Maria Carolina P. Araullo, et al. v. Benigno
Simeon C. Aquino III, et al. G.R. No., 209287, 728 SCRA 1, July 1, 2014, En Banc [Bersamin])

The Doctrine of Operative Fact Extends as well to a Void or Unconstitutional Executive Act

The term executive act is broad enough to include any and all acts of the Executive, including those
that are quasi-legislative and quasi-judicial in nature.

In Commissioner of Internal Revenue v. San Roque Power Corporation (G.R. No. 187485, October 8,
2013), the Court likewise declared that “for the operative act doctrine to apply, there must be a ‘legislative or
executive measure,’ meaning a law or executive issuance.” Thus, the Court opined there that the operative
fact doctrine did not apply to a mere administrative practice of the Bureau of Internal Revenue, x x x.

It is clear from the foregoing that the adoption and the implementation of the DAP and its related
issuances were executive acts. The DAP itself, as a policy, transcended a merely administrative practice
especially after the Executive, through the DBM, implemented it by issuing various memoranda and circulars.
(Maria Carolina P. Araullo, et al. v. Benigno Simeon C. Aquino III, et al. G.R. No., 209287, 728 SCRA 1,
July 1, 2014, En Banc [Bersamin])

The Presumption of Good Faith Stands in the DAP Case despite the Obiter Pronouncement

The quoted text of paragraphs 3 and 4 shows that the Court has neither thrown out the presumption of
good faith nor imputed bad faith to the authors, proponents and implementers of the DAP. The contrary is true,
because the Court has still presumed their good faith by pointing out that “the doctrine of operative fact x x x
cannot apply to the authors, proponents and implementers of the DAP, unless there are concrete findings of
good faith in their favor by the proper tribunals determining their criminal, civil, administrative and other
liabilities.” X x x

It is equally important to stress that the ascertainment of good faith, or the lack of it, and the
determination of whether or not due diligence and prudence were exercised, are questions of fact. The want of
good faith is thus better determined by tribunals other than this Court, which is not a trier of facts.

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 For sure, the Court cannot jettison the presumption of good faith in this or in any other case. The
presumption is a matter of law. It has had a long history. Indeed, good faith has long been established as a
legal principle even in the heydays of the Roman Empire. X x x

Relevantly the authors, proponents and implementers of the DAP, being public officers, further enjoy
the presumption of regularity in the performance of their functions. This presumption is necessary because
they are clothed with some part of the sovereignty of the State, and because they act in the interest of the
public as required by law. However, the presumption may be disputed.

At any rate, the Court has agreed during its deliberations to extend to the proponents and the
implementers of the DAP the benefit of the doctrine of operative fact. This is because they had nothing to do
at all with the adoption of the invalid acts and practices. (Maria Carolina P. Araullo, et al. v. Benigno
Simeon C. Aquino III, et al., G.R. No. 209287, February 3, 2015, En Banc [Bersamin], Resolution of the
Motion for Reconsideration)

THE NATIONAL TERRITORY

The national territory comprises the Philippine archipelago, with all the islands and waters
embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction,
consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the
subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting
the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal
waters of the Philippines. (Article I, 1987 Constitution)

The Maritime Baselines Law (R.A. No. 9522)

In 1961, Congress passed Republic Act No. 3046 (RA 3046) demarcating the maritime baselines of the
Philippines as an archipelagic State. This law followed the framing of the Convention on the Territorial Sea
and the Contiguous Zone in 1958 (UNCLOS I), codifying, among others, the sovereign right of States parties
over their “territorial sea,” the breadth of which, however, was left undetermined. Attempts to fill this void
during the second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus, domestically, RA
3046 remained unchanged for nearly five decades, save for legislation passed in 1968 (Republic Act No. 5446
[RA 5446]) correcting typographical errors and reserving the drawing of baselines around Sabah in North
Borneo.

In March 2009, Congress amended RA 3046 by enacting RA 9522. The change was prompted by the
need to make RA 3046 compliant with the terms of the United Nations Convention on the Law of the Sea
(UNCLOS III), which the Philippines ratified on 27 February 1984. Among others, UNCLOS III prescribes the
water-land ratio, length, and contour of baselines of archipelagic states like the Philippines and sets the
deadline for the filing of application for the extended continental shelf. Complying with these requirements, RA
9522 shortened one baseline, optimized the location of some basepoints around the Philippine archipelago
and classified adjacent territories, namely, the Kalayaan Island Group (KIG) and the Scarborough Shoal, as
“regimes of islands” whose islands generate their own applicable maritime zones. (Professor Merlin M.
Magallona, et al. v. Hon. Eduardo Ermita, et al., G.R. No. 187167, 655 SCRA 476, August 16, 2011, En
Banc [Carpio])

RA 9522 is not unconstitutional. It is a statutory tool to demarcate the country’s maritime zones and
continental shelf under UNCLOS III, not to delineate Philippine territory.

UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty
regulating, among others, sea-use rights over maritime zones (i,e., the territorial waters [12 nautical miles from
the baselines], contiguous zone [24 nautical miles from the baselines], exclusive economic zone [200 nautical
miles from the baselines]), and continental shelves that UNCLOS III delimits. UNCLOS III was the culmination
of decades-long negotiations among United Nations members to codify norms regulating the conduct of States

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in the world’s oceans and submarine areas, recognizing coastal and archipelagic States’ graduated authority
over a limited span of waters and submarine lands along their coasts.

On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties to work-
out specific basepoints along their coasts from which baselines are drawn, either straight or contoured, to
serve as geographic starting points to measure the breadth of the maritime zones and continental shelf.

Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit
with precision the extent of their maritime zones and continental shelves. In turn, this gives notice to the rest of
the international community of the scope of the maritime space and submarine areas within which States
parties exercise treaty-based rights, namely: the exercise of sovereignty over territorial waters (Article 2), the
jurisdiction to enforce customs, fiscal, immigration and sanitation laws in the contiguous zone (Article 33), and
the right to exploit the living and non-living resources in the exclusive economic zone (Article 56) and
continental shelf (Article 77). (Professor Merlin M. Magallona, et al. v. Hon. Eduardo Ermita, et al., G.R.
No. 187167, 655 SCRA 476, August 16, 2011, En Banc [Carpio])

UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or diminution of
territory. Under traditional international law typology, states acquire (or conversely, lose) territory through
occupation, accretion, cession and prescription, not by executing multilateral treaties on the regulation of sea-
use rights or enacting statutes to comply with the treaty’s terms to delimit maritime zones and continental
shelves. Territorial claims to land features are outside UNCLOS IIII, and are instead governed by the rules on
general international law. (Professor Merlin M. Magallona, et al. v. Hon. Eduardo Ermita, et al., G.R. No.
187167, 655 SCRA 476, August 16, 2011, En Banc [Carpio])

RA 9522’s use of the framework of Regime of Islands to determine the maritime zones of the Kalayaan
Island Group (KIG) and the Scarborough Shoal is not inconsistent with the Philippines’ claim of
sovereignty over these areas.

The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522 merely
followed the basepoints mapped by RA 3046, save for at least nine basepoints that RA 9522 skipped to
optimize the location of basepoints and adjust the length of one baseline (and thus comply with UNCLOS III’s
limitation on the maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the
Scarborough Shoal lie outside of the baselines drawn around the Philippine archipelago. This undeniable
cartographic fact takes the wind out of petitioners’ argument branding RA 9522 as a statutory renunciation of
the Philippines’ claim over the KIG, assuming that baselines are relevant for this purpose.

Petitioners’ assertion of loss of “about 15,000 square nautical miles of territorial waters” under RA 9522
is similarly unfounded both in fact and law. On the contrary, RA 9522, by optimizing the location of basepoints,
increased the Philippines’ total maritime space (covering its internal waters, territorial sea and exclusive
economic zone) by 154,216 square nautical miles x x x.

Further, petitioners’ argument that the KIG now lies outside Philippine territory because the baselines
that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of the law commits to text
the Philippines’ continued claim of sovereignty and jurisdiction over the KIG and the Scarborough Shoal x x x

Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine
archipelago, adverse legal effects would have ensued. The Philippines would have committed a breach of two
provisions of UNCLOS III. X x x

Although the Philippines has consistently claimed sovereignty over the KIG and the Scarborough Shoal
for several decades, these outlying areas are located at an appreciable distance from the nearest shoreline of
the Philippine archipelago, such that any straight baseline loped around them from the nearest basepoint will
inevitably “depart to an appreciable extent from the general configuration of our archipelago.”

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 [T]he amendment of the baselines law was necessary to enable the Philippines to draw the outer limits
of its maritime zones including the extended continental shelf provided by Article 47 of [UNCLOS III].

Hence, far from surrendering the Philippines’ claim over the KIG and the Scarborough Shoal, Congress’
decision to classify the KIG and the Scarborough Shoal as “’Regime[s] of Islands’ under the Republic of the
Philippines consistent with Article 121” of UNCLOS III manifests the Philippine State’s responsible observance
of its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III, any “naturally
formed area of land, surrounded by water, which is above water at high tide,” such as portions of the KIG,
qualifies under the category of “regime of islands,” whose islands generate their own applicable maritime
zones. (Professor Merlin M. Magallona, et al. v. Hon. Eduardo Ermita, et al., G.R. No. 187167, 655 SCRA
476, August 16, 2011, En Banc [Carpio])

THE DOCTRINE OF STATE IMMUNITY FROM SUIT

The State may not be sued without its consent. (Section 3, Article XVI, 1987 Constitution)

Discuss the basis of the Doctrine of State Immunity from Suit

The basic postulate enshrined in the Constitution that “[t]he State may not be sued without its consent,”
reflects nothing less than a recognition of the sovereign character of the State and an express affirmation of
the unwritten rule effectively insulating it from the jurisdiction of courts. It is based on the very essence of
sovereignty. As has been aptly observed by Justice Holmes, a sovereign is exempt from suit, not because of
any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal
right as against the authority that makes the law on which the right depends. True, the doctrine, not too
infrequently, is derisively called “the royal prerogative of dishonesty” because it grants the state the prerogative
to defeat any legitimate claim against it by simply invoking its non-suability. We have had occasion to explain
in its defense, however, that a continued adherence to the doctrine of non-suability cannot be deplored, for the
loss of governmental efficiency and the obstacle to the performance of its multifarious functions would be far
greater in severity than the inconvenience that may be caused private parties, if such fundamental principle is
to be abandoned and the availability of judicial remedy is not to be accordingly restricted. (Department of
Agriculture v. NLRC, 227 SCRA 693, Nov. 11, 1993 [Vitug])

Is the rule absolute, i.e., that the State may not be sued at all? How may consent of the State to be
sued given?

The rule, in any case, is not really absolute for it does not say that the state may not be sued under any
circumstances. On the contrary x x x the doctrine only conveys, “the state may not be sued without its
consent;” its clear import then is that the State may at times be sued. The State's consent may be given either
expressly or impliedly. Express consent may be made through a general law (i.e., Commonwealth Act No.
327, as amended by Presidential Decree No. 1445 [Sections 49-50], which requires that all money claims
against the government must first be filed with the Commission on Audit which must act upon it within sixty
days. Rejection of the claim will authorize the claimant to elevate the matter to the Supreme Court on certiorari
and, in effect, sue the State thereby) or a special law. In this jurisdiction, the general law waiving the immunity
of the state from suit is found in Act No. 3083, where the Philippine government “consents and submits to be
sued upon any money claim involving liability arising from contract, express or implied, which could serve as a
basis of civil action between the private parties.” Implied consent, on the other hand, is conceded when the
State itself commences litigation, thus opening itself to a counterclaim or when it enters into a contract. In this
situation, the government is deemed to have descended to the level of the other contracting party and to have
divested itself of its sovereign immunity. (Department of Agriculture v. NLRC, 227 SCRA 693, Nov. 11, 1993
[Vitug])

The rule that when the State enters into a contract with a private individual or entity, it is deemed to
have descended to the level of that private individual or entity and, therefore, is deemed to have tacitly

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given its consent to be sued, is that without any qualification? What is the Restrictive Doctrine of
State Immunity from Suit?

This rule is not without qualification. Not all contracts entered into by the government operate as a
waiver of its non-suability; distinction must still be made between one which is executed in the exercise of its
sovereign function and another which is done in its proprietary capacity.

In United States of America v. Ruiz (136 SCRA 487), where the questioned transaction dealt with the
improvements on the wharves in the naval installation at Subic Bay, we held:

“The traditional rule of immunity exempts a State from being sued in the courts of another State
without its consent or waiver. This rule is a necessary consequence of the principle of independence
and equality of States. However, the rules of International Law are not petrified; they are constantly
developing and evolving. And because the activities of states have multiplied, it has been necessary to
distinguish them - between sovereign and governmental acts (jure imperii) and private, commercial and
proprietary acts (jure gestionis). The result is that State immunity now extends only to acts jure imperii.
The restrictive application of State immunity is now the rule in the United States, the United Kingdom
and other states in Western Europe.

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The restrictive application of State immunity is proper only when the proceedings arise out of
commercial transactions of the foreign sovereign, its commercial activities or economic affairs. Stated
differently, a State may be said to have descended to the level of an individual and can thus be deemed
to have tacitly given its consent to be sued only when it enters into business contracts. It does not
apply where the contracts relate to the exercise of its sovereign functions. In this case the projects are
an integral part of the naval base which is devoted to the defense of both the United States and the
Philippines, indisputably a function of the government of the highest order; they are not utilized for nor
dedicated to commercial or business purposes.” (Department of Agriculture v. NLRC, 227 SCRA
693, Nov. 11, 1993 [Vitug])

When is a suit against a public official deemed to be a suit against the State? Discuss.

The doctrine of state immunity from suit applies to complaints filed against public officials for acts done
in the performance of their duties. The rule is that the suit must be regarded as one against the State where
the satisfaction of the judgment against the public official concerned will require the State itself to perform a
positive act, such as appropriation of the amount necessary to pay the damages awarded to the plaintiff.

The rule does not apply where the public official is charged in his official capacity for acts that are
unlawful and injurious to the rights of others. Public officials are not exempt, in their personal capacity, from
liability arising from acts committed in bad faith.

Neither does it apply where the public official is clearly being sued not in his official capacity but in his
personal capacity, although the acts complained of may have been committed while he occupied a public
position. (Amado J. Lansang v. CA, G.R. No. 102667, Feb. 23, 2000, 2nd Div. [Quisumbing])

As early as 1954, this Court has pronounced that an officer cannot shelter himself by the plea that he is
a public agent acting under the color of his office when his acts are wholly without authority. Until recently in
1991 (Chavez v. Sandiganbayan, 193 SCRA 282 [1991]), this doctrine still found application, this Court saying
that immunity from suit cannot institutionalize irresponsibility and non-accountability nor grant a privileged
status not claimed by any other official of the Republic. (Republic v. Sandoval, 220 SCRA 124, March 19,
1993, En Banc [Campos, Jr.])

Arigo v. Swift, 735 SCRA 102 (2014)

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 A petition filed for the issuance of a Writ of Kalikasan directed against the Commander of the US Pacific
Fleet for the destruction of our corrals in Tubbataha reef (a protected area system under the NIPAS [National
Integrated Protected Areas System] and a UN declared World Heritage Site because of its rich marine bio-
diversity) in the Sulu Sea caused by the USS Guardian, an American naval vessel when it ran aground there in
the course of its voyage to Indonesia from its base in Okinawa, Japan, will not prosper for lack of jurisdiction
following the doctrine of sovereign equality of all States. In effect, the suit is a suit against the US government
and, therefore, should be dismissed.

The waiver of immunity from suit of the US under the Visiting Forces Agreement (VFA) applies only to
waiver from criminal jurisdiction, so that if an American soldier commits an offense in the Philippines, he shall
be tried by Philippine courts under Philippine laws. The waiver did not include the special civil action for the
issuance of a Writ of Kalikasan.

Also, the demand for compensation for the destruction of our corrals in Tubbataha reef has been
rendered moot and academic. After all, the US already signified its intention to pay damages, as expressed by
the US embassy officials in the Philippines, the only request is that a panel of experts composed of scientists
be constituted to assess the total damage caused to our corrals there, which request is not unreasonable.

Government Funds may not be subject to Garnishment

The funds of the UP are government funds that are public in character. They include the income
accruing from the use of real property ceded to the UP that may be spent only for the attainment of its
institutional objectives. Hence, the funds subject of this action could not be validly made the subject of writ of
execution or garnishment. The adverse judgment rendered against the UP in a suit to which it had impliedly
consented was not immediately enforceable by execution against the UP, because suability of the State did not
necessarily mean its liability. (UP v. Dizon, G.R. No. 171182, 679 SCRA 54, 23 August 2012, 1st Div.
[Bersamin])

The Doctrine should not be used to perpetrate an Injustice on a Citizen

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

Incidentally, respondent likewise argues that the State may not be sued in the instant case, invoking the
constitutional doctrine of Non-suability of the State, otherwise known as the Royal Prerogative of Dishonesty.

Respondent’s argument is misplaced inasmuch as the principle of State immunity finds no application
in the case before us.

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

Thus, in Amigable v. Cuenca, this Court, in effect, shred the protective shroud which shields the state
from suit, reiterating our decree in the landmark case of Ministerio v. CFI of Cebu that “the doctrine of
governmental immunity from suit cannot serve as an instrument for perpetrating an injustice on a citizen.” It is
just as important, if not more so, that there be fidelity to legal norms on the part of officialdom if the rule of law
were to be maintained.

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

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 To be sure, this Court – as the staunch guardian of the citizens’ rights and welfare – cannot sanction an
injustice so patent on its face, and allow itself to be an instrument in the perpetration thereof. Justice and
equity sternly demand that the State’s cloak of invincibility against suit be shred in this particular instance, and
that petitioners-contractors be duly compensated – on the basis of quantum meruit – for construction done on
the public works housing project. (EPG Construction Co. v. Vigilar, 354 SCRA 566, Mar.16, 2001, 2 nd Div.
[Buena])

FUNDAMENTAL PRINCIPLES AND STATE POLICIES (Article II, 1987 Constitution)

The Philippines Adherence to the Doctrine of Incorporation

Section 2, Article II of the 1987 Constitution provides that the Philippines adopts the generally
accepted principles of international as part of the laws of the land. This provision is an affirmation of
our adherence to the doctrine of incorporation in 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 stipulations. Generally
accepted principles of international law include international customs as evidence of a general practice
accepted as law, and general principles of law recognized by civilized nations. International customary rules
are accepted as binding as a result from the combination of two elements: the established, widespread, and
consistent practice on the part of States; and a psychological element known as the opinion juris sive
necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the practice in
question is rendered obligatory by the existence of a rule of law requiring it. “General principles of law
recognized by civilized nations” are principles “established by a process of reasoning” or judicial logic, based
on principles which are “basic to legal systems generally,” such as “general principles of equity, i.e., the
general principles of fairness and justice,” and the “general principles against discrimination” which is
embodied in the “Universal Declaration of Human Rights, the International Covenant on Economic, Social and
Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the
Convention Against Discrimination in Education, the Convention (No. 111) Concerning Discrimination in
Respect of Employment and Occupation.” These are the same core principles which underlie the Philippine
Constitution itself, and embodied in the due process and equal protection clauses of the Bill of Rights. (Mary
Grace Natividad S. Poe-Llamanzares v. COMELEC, G R. No. 221697, March 8, 2016, En Banc [Perez])

The Right to Self-Determination of Peoples

This right to self-determination of peoples has gone beyond mere treaty or convention; in fact, it has
now been elevated into the status of a generally accepted principle of international law. (The Province of
North Cotabato v. The Government of the Republic of the Philippines Peace Panel, G.R. No. 183591,
568 SCRA 402, October 14, 2008, En Banc [Carpio-Morales])

The Yogyakarta Principles: Have they evolved into a generally accepted principle of international law
and, therefore, binding upon the Philippines?

We refer now to the petitioner’s invocation of the Yogyakarta Principles (the Application of
International Human Rights Law In Relation to Sexual Orientation and Gender Identity), which petitioner
declares to reflect binding principles of international law.

At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are
obligatory on the Philippines. There are declarations and obligations outlined in said Principles which are not
reflective of the current state of international law, and do not find basis in any of the sources of international
law enumerated under Article 38(1) of the Statute of the International Court of Justice. X x x

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 Xxx

Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration
formulated by various international law professors, are – at best – de lege refenda – and do not constitute
binding obligations on the Philippines. X x x (Ang LADLAD LGBT Party v. COMELEC, G.R. No. 190582,
618 SCRA 32, April 8, 2010, En Banc [Del Castillo])

The Filipino First Policy

In the grant of rights, privileges and concessions covering the national economy and patrimony,
the State shall give preference to qualified Filipinos (Sec. 10, 2nd par., Art. XII of the Constitution)

Manila Prince Hotel v. GSIS, 267 SCRA 408 (1997) (Bellosillo)

In this case, the SC ruled that this provision is self-executing. It was also in this case where the Court
clarified that the rule now is that all provisions of the Constitution are presumed to be self-executing, rather
than non-self-executing. Elaborating, the Court explained that if a contrary presumption is adopted, the whole
Constitution shall remain dormant and be captives of Congress, which could have disastrous consequences.

Also, in this case the SC held that “patrimony” simply means “heritage.” Thus, when we speak of
“national patrimony,” we refer not only to the natural resources of the Philippines but as well as the cultural
heritage of the Filipino people.

The Right to Life of the Unborn from Conception

The Philippine national population program has always been grounded on two cornerstone principles:
“principle of no-abortion” and the “principle of non-coercion.” These principles are not merely grounded
on administrative policy, but rather, originates from the constitutional protection which expressly provided to
afford protection to life and guarantee religious freedom.

When Does Life Begin?

Majority of Members of the Court are of the position that the question of when life begins is a scientific
and medical issue that should not be decided, at this stage, without proper hearing and evidence. During the
deliberations, however, it was agreed upon that the individual members of the Court could express their own
views on this matter.

In this regard, the ponente, is of the strong view that life begins at fertilization.

Xxx

Textually, the Constitution affords protection to the unborn from conception. This is undisputable
because before conception, there is no unborn to speak of. For said reason, it is no surprise that the
Constitution is mute as to any proscription prior to conception or when life begins. The problem has arisen
because, amazingly, there are quarters who have conveniently disregarded the scientific fact that conception is
reckoned from fertilization. They are waving the view that life begins at implantation. Hence, the issue of
when life begins.

Xxx

In conformity with the above principle, the traditional meaning of the word “conception” which, as
described and defined by all reliable and reputable sources, means that life begins at fertilization.

Xxx

9
 From the deliberations above-quoted, it is apparent that the framers of the Constitution emphasized
that the State shall provide equal protection to both the mother and the unborn child from the earliest
opportunity of life, that is, upon fertilization or upon the union of the male sperm and the female ovum. X x
x

Equally apparent, however, is that the Framers of the Constitution did not intend to ban all
contraceptives for being unconstitutional. From the discussions above, contraceptives that kill or destroy the
fertilized ovum should be deemed an abortive and thus prohibited. Conversely, contraceptives that actually
prevent the union of the male sperm and the female ovum, and those that similarly take action prior to
fertilization should be deemed non-abortive, and thus, constitutionally permissible. (James M. Imbong, et al.
v. Hon. Paquito N. Ochoa, Jr., et al., GR No. 204819, April 8, 2014, En Banc [Mendoza])

The Right to Health and to a Balanced and Healthful Ecology in Accord with the Rhythm and Harmony
of Nature

International Service for the Acquisition of Agri-Biotech Applications, Inc. v. Greenpeace Southeast
Asia (Philippines), et al., G.R. No. 209271, December 8, 2015, En Banc (Villarama, Jr.)

The Precautionary Principle

The precautionary principle originated in Germany in the 1960s, expressing the normative idea that
governments are obligated to “foresee and forestall” harm to the environment. In the following decades, the
precautionary principle has served as the normative guideline for policymaking by many national governments.
The Rio Declaration on Environment and Development, the outcome of the 1992 United Nations Conference
on Environment and Development held in Rio de Janeiro, defines the rights of the people to be involved in the
development of their economies, and the responsibilities of human beings to safeguard the common
environment. It states that the long term economic progress is only ensured if it s linked with the protection of
the environment. For the first time, the precautionary approach was codified under Principle 15, which reads:

In order to protect the environment, the precautionary approach shall be widely applied by States
according to their capabilities. Where there are threats of serious or irreversible damage, lack of full
scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent
environmental degradation.

Principle 15 codified for the first time at the global level the precautionary approach, which indicates
that lack of scientific certainty is no reason to postpone action to avoid potentially serious or irreversible harm
to the environment. It has been incorporated in various international legal instruments. The Cartagena
Protocol on Biosafety to the Convention on Biological Diversity, finalized and adopted in Montreal on January
29, 2000, establishes an international regime primarily aimed at regulating trade in GMOs intended for release
into the environment, in accordance with Principle 15 of the Rio Declaration on Environment and Development.
Xxx

The precautionary principle applies when the following conditions are met:

1. There exist considerable scientific uncertainties;

2. There exist scenarios (or models) of possible harm that are scientifically reasonable (that is
based on some scientifically plausible reasoning);
3. Uncertainties cannot be reduced in the short term without at the same time increasing ignorance
of other relevant factors by higher levels of abstraction and idealization;
4. The potential harm is sufficiently serious or even irreversible for present or future generations or
otherwise morally unacceptable;
5. There is a need to act now, since effective counteraction later will be made significantly more
difficult or costly at any later time.

10
 The Rules (of Procedure for Environmental Cases) likewise incorporated the principle in Part V, Rule
20, which states:

PRECAUTIONARY PRINCIPLE

Sec. 1. Applicability. – When there is a lack of full scientific certainty in establishing a causal link
between human activity and environmental effect, the court shall apply the precautionary principle in
resolving the case before it.

The constitutional right of the people to a balanced and healthful ecology shall be given the
benefit of the doubt.

SEC. 2. Standards for application. – In applying the precautionary principle, the following
factors, among others, may be considered: (1) threats to human life or health; (2) inequity to preset or
future generations; or (3) prejudice to the environment without legal consideration of the environmental
rights of those affected.

Under this Rule, the precautionary principle finds direct application in the evaluation of evidence in
cases before the courts. The precautionary principle bridges the gap in cases where scientific certainty in
factual findings cannot be achieved. By applying the precautionary principle, the court may construe a set of
facts as warranting either judicial action or inaction, with the goal of preserving and protecting the environment.
This may be further evinced from the second paragraph where bias is created in favor of the constitutional right
of the people to a balanced and healthful ecology. In effect, the precautionary principle shifts the burden of
evidence of harm away from those likely to suffer harm and onto those desiring to change the status quo. An
application of the precautionary principle to the rules on evidence will enable courts to tackle future
environmental problems before ironclad scientific consensus emerges. (Annotation to the Rules of Procedure
for Environmental Cases)

For purposes of evidence, the precautionary principle should be treated as a principle of last resort,
where application of the regular Rules of Evidence would cause in an inequitable result for the environmental
plaintiff – (a) settings in which the risks of harm are uncertain; (b) settings in which harm might be irreversible
and what is lost is irreplaceable; and (c) settings in which the harm that might result would be serious. When
these features – uncertainty, the possibility of irreversible harm, and the possibility of serious harm –
coincide, the case for the precautionary principle is strongest. When in doubt, cases must be resolved in favor
of the constitutional right to a balanced and healthful ecology. Parenthetically, judicial adjudication is one of
the strongest fora in which the precautionary principle may find applicability. (International Service for the
Acquisition of Agri-biotech Applications, Inc. v. Greenpeace Southeast Asia [Philippines], et al., GR No.
209271, December 8, 2015, En Banc [Villarama])

Application of the Precautionary Principle to the Bt talong Field Trials in the Philippines

Assessing the evidence on record, as well as the current state of GMO research worldwide, the Court
finds all the three conditions present in this case – uncertainty, the possibility of irreversible harm and the
possibility of serious harm.

Xxx

Alongside the aforesaid uncertainties, the non-implementation of the NBF (National Biosafety
Framework) in the crucial stages of risk assessment and public consultation, including the determination of the
applicability of the EIS (Environmental Impact Statement) requirements to GMO field testing, are compelling
reasons for the application of the precautionary principle. There exists a preponderance of evidence that the
release of GMOs into the environment threatens to damage our ecosystems and not just the field trial sites,
and eventually the health of our people once the Bt eggplant are consumed as food. Adopting the
precautionary approach, the Court rules that the principles of the NBF need to be operationalized first by the
coordinated actions of the concerned departments and agencies before allowing the release into the

11
environment of genetically modified eggplant. The more prudent course is to immediately enjoin the Bt talong
field trials and approval for its propagation or commercialization until the said government offices shall have
performed their respective mandates to implement the NBF.

We have found the experience of India in the Bt brinjal field trials – for which an indefinite moratorium
was recommended by a Supreme Court-appointed committee till the government fixes regulatory and safety
aspects – as relevant because majority of Filipino farmers are also small-scale farmers. Further, the
precautionary approach entailed inputs from all stakeholders, including the marginalized farmers, not just the
scientific community. This proceeds from the realization that acceptance of uncertainty is not only a scientific
issue, but is related to public policy and involves an ethical dimension. For scientific research alone will not
resolve all the problems, but participation of different stakeholders from scientists to industry, NGOs, farmers
and the public will provide a needed variety of perspective foci, and knowledge. (International Service for the
Acquisition of Agri-biotech Applications, Inc. v. Greenpeace Southeast Asia (Philippines), et al., GR No.
209271, December 8, 2015, En Banc [Villarama])

Field Trial Proposal of Bt (Bacillus thuringiensis) Talong

The crystal toxin genes from the soil bacterium Bacillus thuringiensis (Bt) were incorporated into the
eggplant (talong) genome to produce the protein CrylAc which is toxic to the target insect pests. CrylAc protein
is said to be highly specific to lepidopteran larvae such as the fruit and shoot borer (FSB), the most destructive
insect pest of eggplant. (International Service for the Acquisition of Agri-biotech Applications, Inc. v.
Greenpeace Southeast Asia (Philippines), et al., GR No. 209271, December 8, 2015, En Banc
[Villarama])
Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al., G.R. No. 189185,
August 16, 2016, En Banc (Bersamin)

The Precautionary Principle

The principle of precaution originated as a social planning principle in Germany. In the 1980’s, the
Federal Republic of Germany used the Vorsogeprinzip (“foresight principle”) to justify the implementation of
vigorous policies to tackle acid rain, global warming and pollution of the North Sea. It has since emerged from
a need to protect humans and the environment from increasingly unpredictable, uncertain, and unquantifiable
but possibly catastrophic risks such as those associated with Genetically Modified Organisms and climate
change. The oft-cited Principle 15 of the 1992 Rio Declaration on Environment and Development (1992 Rio
Agenda) first embodied this principle x x x.

In this jurisdiction, the principle of precaution appearing in the Rules of Procedure for Environmental
Cases (A.M. No. 09-6-8-SC) involves matters of evidence in cases where there is lack of full scientific certainty
in establishing a causal link between human activity and environmental effect. In such an event, the courts
may construe a set of facts as warranting either judicial action or inaction with the goal of preserving and
protecting the environment.

Application of the Precautionary Principle

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

In Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al., (G.R. No.
189185, August 16, 2016, En Banc [Bersamin]), it was argued that the Ordinance enacted by the City of
Davao prohibiting aerial spraying of pesticides is justified since it will protect the health of residents and the

12
environment against the risks posed by aerial drift of chemicals applying the precautionary principle. The
Court did not find the presence of the elements for this principle to apply, thus, it held:

We cannot see the presence of all the elements. To begin with, there has been no scientific
study. Although the precautionary principle allows lack of full scientific certainty in establishing a
connection between the serious or irreversible harm and the human activity, its application is still
premised on empirical studies. Scientific analysis is still a necessary basis for effective policy choices
under the precautionary principle.

Precaution is a risk management principle invoked after scientific inquiry takes place. This
scientific stage is often considered synonymous with risk assessment. As such, resort to the principle
shall not be based on anxiety or emotion, but from a rational decision rule, based on ethics. As much
as possible, a complete and objective scientific evaluation of the risk to the environment or health
should be conducted and made available to decision-makers for them to choose the most appropriate
course of action. Furthermore, the positive and negative effects of an activity are also important in the
application of the principle. The potential harm resulting from certain activities should always be judged
in view of the potential benefits they offer, while the positive and negative effects of potential
precautionary measures should be considered.

The only study conducted to validate the effects of aerial spraying appears to be the Summary
Report on the Assessment and Fact-Finding Activities on the Issue of Aerial Spraying in Banana
Plantations. Yet, the fact-finding team that generated the report was not a scientific study that could
justify the resort to the precautionary principle. In fact, the Sangguniang Bayan ignored the findings
and conclusions of the fact-finding team x x x.

We should not apply the precautionary approach in sustaining the ban against aerial spraying if
little or nothing is known of the exact or potential dangers that aerial spraying may bring to the health of
the residents within and near the plantations and to the integrity and balance of the environment. It is
dangerous to quickly presume that the effects of aerial spraying would be adverse even in the absence
of evidence. Accordingly, for lack of scientific data supporting a ban on aerial spraying, Ordinance No.
0309-07 should be struck down for being unreasonable.

Resident Marine Mammals of the Protected Seascape Tanon Strait, et al. v. Secretary Angelo Reyes, et
al., G.R. No. 180771, April 21, 2015, En Banc (Leonardo-De Castro)

Petitioners in this case were marine mammals (toothed whales, dolphins, and other cetacean species)
but were joined by human beings as “stewards of nature.

Are these marine mammals the proper parties to file the petition? In this case, actually the SC did not
rule squarely on this issue. The Court ruled instead that the issue of whether these marine mammals have
locus standi to file the petition had been eliminated because of Section 5, Rules for the Enforcement of
Environmental Laws, which allows any citizen to file a petition for the enforcement of environmental laws
(Citizen’s Suit) and, in their petition, these marine mammals were joined by human beings as “stewards of
nature.”

Service Contracts with Foreign Corporations for Exploration of Oil and Petroleum Products (Paragraph
4, Section 2, Article XII, 1987 Constitution)

Resident Marine Mammals of the Protected Seascape Tanon Strait, et al. v. Secretary Angelo Reyes, et
al., GR Nos. 180771 and 181527, April 21, 2015, En Banc (Leonardo-De Castro)

In these consolidated petitions, this Court has determined that the various issues raised by the
petitioners may be condensed into two primary issues:

Procedural Issue: Locus standi of the Resident Marine Mammals and Stewards x x x; and

13
 Main Issue: Legality of Service Contract No. 46.

Procedural Issue

The Resident Marine Mammals, through the Stewards, “claim” that they have the legal standing to file
this action since they stand to be benefited or injured by the judgment in this suit, citing Oposa v. Factoran, Jr.
They also assert their right to sue for the faithful performance of international and municipal environment laws
created in their favor and for their benefit. In this regard, they propound that they have a right to demand that
they be accorded the benefits granted to them in multilateral international instruments that the Philippine
Government had signed, under the concept of stipulation pour autrui.

Xxx

In light of the foregoing, the need to give the Resident Marine Mammals legal standing has been
eliminated by our Rules, which allow any Filipino citizen, as a steward of nature, to bring to suit to enforce our
environmental laws. It is worth noting here that the Stewards are joined as real parties in the Petition and not
just in representation of the named cetacean species. The Stewards x x x having shown in their petition that
there may be possible violations of laws concerning the habitat of the Resident Marine Mammals, are therefore
declared to possess the legal standing to file this petition.

On the Legality of Service Contract No. 46 vis-à-vis Section 2, Article XII of the 1987 Constitution

This Court has previously settled the issue of whether service contracts are still allowed under the 1987
Constitution. In La Bugal, we held that the deletion of the words “service contracts” in the 1987 Constitution
did not amount to a ban on them per se. In fact, in that decision, we quoted in length, portions of the
deliberations of the members of the Constitutional Commission (ConCom) to show that in deliberating on
paragraph 4, Section 2, Article XII, they were actually referring to service contracts as understood in the 1973
Constitution, albeit with safety measures to eliminate or minimize the abuses prevalent during the martial law
regime.
Agreements involving Technical or Financial Assistance are Service Contracts with Safeguards

From the foregoing, we are impelled to conclude that the phrase agreements involving either technical
or financial assistance, referred to in paragraph 4, are in fact service contracts. But unlike those of the 1973
variety, the new ones are between foreign corporations acting as contractors on the one hand; and on the
other, the government as principal or “owner” of the works. In the new service contacts, the foreign contractors
provide capital, technology and technical know-how, and managerial expertise in the creation and operation of
large-scale mining/extractive enterprises; and the government, through its agencies (DENR, MGB), actively
exercises control and supervision over the entire operation.

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
to avoid the possible insertion of terms disadvantageous to the country.

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

14
 (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.

1. The General Law on Oil Exploration

The disposition, exploration, development, exploitation, and utilization of indigenous petroleum in the
Philippines are governed by Presidential Decree No. 87 or the Oil Exploration and Development Act of 1972.
Xxx

Contrary to the petitioners’ argument, Presidential Decree No. 87, although enacted in 1972, before the
adoption of the 1987 Constitution, remains to be a valid law unless otherwise repealed x x x.

This Court could not simply assume that while Presidential Decree No. 87 had not yet been expressly
repealed, it had been impliedly repealed. X x x

Consequently, we find no merit in petitioners’ contention that SC-46 is prohibited on the ground that
there is no general law prescribing the standard or uniform terms, conditions, and requirements for service
contracts involving oil exploration and extraction.

But note must be made at this point that while Presidential Decree No. 87 may serve as the general law
upon which a service contract for petroleum exploration and extraction may be authorized, x x x the
exploitation and utilization of this energy resource in the present case may be allowed only through a law
passed by Congress, since the Tanon Strait is a NIPAS (National Integrated Protected Areas System) area.

2. President was not the signatory to SC-46 and the same was not submitted to Congress

While the Court finds that Presidential Decree No. 87 is sufficient to satisfy the requirement of a general
law, the absence of the two other conditions, that the President be a signatory to SC-46, and that Congress be
notified of such contract, renders it null and void.
As SC-46 was executed in 2004, its terms should have conformed not only to the provisions of
Presidential Decree No. 87, but also those of the 1987 Constitution. X x x

Paragraph 4, Section 2, Article XII of the 1987 Constitution requires that the President himself enter into
any service contract for the exploration of petroleum. SC-46 appeared to have been entered into and signed
only by the DOE (Department of Energy) through its then Secretary, Vicente S. Perez, Jr., contrary to the said
constitutional requirement. Moreover, public respondents have neither shown nor alleged that Congress was
subsequently notified of the execution of such contract.

Public respondents’ implied argument that based on the “alter ego principle,” their acts are also that of
then President Macapagal-Arroyo’s, cannot apply in this case. In Joson v. Torres (352 Phil. 888, 915 [1998]),
we explained the concept of the alter ego principle or the doctrine of qualified political agency and its limits x x
x.

Under this doctrine, which recognizes the establishment of a single executive, all executive and
administrative organizations are adjuncts of the Executive Department, the heads of the various executive
departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive
is required by the Constitution or law to act in person or the exigencies of the situation demand that he act
personally, the multifarious executive and administrative functions of the Chief Executive are performed by and
through the executive departments, and the acts of the Secretaries of such departments, performed and
promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive
presumably the acts of the Chief Executive.

15
 While the requirements in executing service contracts in paragraph 4, Section 2 of Article XII of the
1987 Constitution seem like mere formalities, they, in reality, take on a much bigger role. As we have
explained in La Bugal, they are the safeguards put in place by the framers of the Constitution to “eliminate or
minimize the abuses prevalent during the martial law regime.” Thus, they are not just mere formalities, which
will render a contract unenforceable but not void, if not complied with. They are requirements placed, not just
in an ordinary statute, but in the fundamental law, the non-observance of which will nullify the contract. X x x

As this Court has held in La Bugal, our Constitution requires that the President himself be the signatory
of service agreements with foreign-owned corporations involving the exploration, development, and utilization
of our minerals, petroleum, and other mineral oils. This power cannot be taken lightly.

In this case, the public respondents have failed to show that the President had any participation in SC-
46. Their argument that their acts are actually the acts of then President Macapagal-Arroyo, absent proof of
her disapproval, must fail as the requirement that the President herself enter into these kinds of contracts are
embodied not just in any ordinary statute, but in the Constitution itself. These service contracts involving the
exploitation, development, and utilization of our natural resources are of paramount interest to the present and
future generations. Hence, safeguards were put in place to insure that the guidelines set by law are
meticulously observed and likewise to eradicate the corruption that may easily penetrate departments and
agencies by ensuring that the President has authorized or approved of these service contracts herself.

Even under the provisions of Presidential Decree No. 87, it is required that the Petroleum Board, now
the DOE (Department of Energy), obtain the President’s approval for the execution of any contract under said
statute x x x.

Even if we were inclined to relax the requirement in La Bugal to harmonize the 1987 Constitution with
the aforementioned provision of Presidential Decree No. 87, it must be shown that the government agency or
subordinate official has been authorized by the President to enter into such service contract for the
government. Otherwise, it should be at least shown that the President subsequently approved of such contract
explicitly. None of these circumstances is evident in the case at bar.

On the legality of Service Contract No. 46 vis-à-vis Other Laws

Xxx

Moreover, SC-46 was not executed for the mere purpose of gathering information on the possible
energy resources in the Tanon Strait as it also provides for the parties’ rights and obligations relating to
extraction and petroleum production should oil in commercial quantities be found to exist in the area. While
Presidential Decree No. 87 may serve as the general law upon which a service contract for petroleum
exploration and extraction may be authorized, the exploitation and utilization of this energy resource in the
present case may be allowed only through a law passed by Congress, since the Tanon Strait is a NIPAS
(National Integrated Protected Areas System) area. Since there is no such law specifically allowing oil
exploration and/or extraction in the Tanon Strait, no energy resource exploitation and utilization may be done in
said protected seascape.

Academic Freedom

Academic freedom shall be enjoyed in all institutions of higher learning. (Sec. 5[2], Art. XIV, 1987
Constitution)

Academic freedom of educational institutions has been defined as the right of the school or college to
decide for itself, its aims and objectives, and how best to attain them - free from outside coercion or
interference save possibly when the overriding public welfare calls for some restraint. It has a wide sphere of
autonomy certainly extending to the choice of students. Said constitutional provision is not to be construed in a
niggardly manner or in a grudging fashion. That would be to frustrate its purpose and nullify its intent.
(University of San Agustin, Inc. v. Court of Appeals, 230 SCRA 761, 774-775, March 7, 1994 [Nocon])

16
What are the essential freedoms subsumed in the term “academic freedom”?

In Ateneo de Manila University v. Capulong (G.R. No. 99327, 27 May 1993), this Court cited with
approval the formulation made by Justice Felix Frankfurter of the essential freedoms subsumed in the term
“academic freedom” encompassing not only “the freedom to determine x x x on academic grounds who may
teach, what may be taught (and) how it shall be taught,” but likewise “who may be admitted to study.” We have
thus sanctioned its invocation by a school in rejecting students who are academically delinquent, or a
laywoman seeking admission to a seminary, or students violating “School Rules on Discipline.” (Isabelo, Jr. v.
Perpetual Help College of Rizal, Inc., 227 SCRA 595-597, Nov. 8, 1993, En Banc [Vitug])

THE STRUCTURE OF GOVERNMENT

The main distinction between a presidential form of government and a parliamentary form of
government

In a presidential form of government, there is the observance of the doctrine of separation of powers; in
a parliamentary government, instead of separation of powers, there is the union of the executive and legislative
branches. In a presidential form of government, the President is elected by the people at large; in a
parliamentary government, the Prime Minister is elected not by the people at large but by members of
Parliament.

Tests of a Valid Delegation of Power

In order to determine whether there is undue delegation of legislative power, the Court has adopted two
tests: the completeness test and the sufficient standard test. Under the first test, the law must be complete in
all its terms and conditions when it leaves the legislature such that when it reaches the delegate, the only thing
he will have to do is to enforce it. The second test mandates adequate guidelines or limitations in the law to
determine the boundaries of the delegate’s authority and prevent the delegation from running riot. (Jose
Jesus M. Disini, Jr., et al. v. The Secretary of Justice, et al., G.R. No,. 203335, Feb. 11, 2014, En Banc
[Abad])

The Legislative Department (Article VI, 1987 Constitution)

The legislative power shall be vested in the Congress of the Philippines which shall consist of a
Senate and a House of Representatives, except to the extent reserved to the people by the provision
on initiative and referendum. (Section 1, Article VI, 1987 Constitution)

Is legislative power exclusively vested in the Congress?

R.A. No. 6735 (The Initiative and Referendum Law)

The Principle of Bicameralism

The Bicameral Conference Committee

It is a mechanism for compromising differences between the Senate and the House of Representatives.
By the nature of its function, a Bicameral Conference Committee is capable of producing unexpected results –
results which sometimes may even go beyond its own mandate. (Tolentino v. Secretary of Finance)

The Bills That Are Required to Originate Exclusively in the House of Representatives (Section 24,
Article VI of the 1987 Constitution)

The Party-List System

17
 The 1987 Constitution provides the basis for the party-list system of representation. Simply put, the
party-list system is intended to democratize political power by giving political parties that cannot win in
legislative district elections a chance to win seats in the House of Representatives. The voter elects two
representatives in the House of Representatives: one for his or her legislative district; and another for his or her
party-list group or organization of choice. (Atong Paglaum, Inc., et al. v. COMELEC, G.R. No. 203766, 694
SCRA 477, April 2, 2013, En Banc [Carpio])

Parameters to Determine Who May Participate in Party-List Elections

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

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

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

3. Political parties can participate in party-list elections provided they register under the party-list
system and do not field candidates in legislative district elections. A political party, whether major or
not, that fields candidates in legislative district elections can participate in party-list elections
through its sectoral wing that can separately register under the party-list system. The sectoral wing
is by itself an independent sectoral party, and is linked to a political party through a coalition.

4. Sectoral parties or organizations may either be “marginalized and underrepresented” or lacking in

“well-defined political constituencies.” It is enough that their principal advocacy pertains to the
special interest and concerns of their sector. The sectors that are “marginalized and
underrepresented” include labor, peasant, fisherfolk, urban poor, indigenous cultural communities,
handicapped, veterans, and overseas workers. The sectors that lack “well-defined political
constituencies” include professionals, the elderly, women and the youth.

5. A majority of the members of sectoral parties or organizations that represent the “marginalized and
underrepresented” must belong to the “marginalized and underrepresented” sector they represent.
Similarly, a majority of the members of sectoral parties or organizations that lack “well-defined
political constituencies” must belong to the sector they represent. The nominees of sectoral parties
or organizations that represent the “marginalized and underrepresented,” or that represent those
who lack “well-defined political constituencies,” either must belong to their respective sectors, or
must have a track record of advocacy for their respective sectors. The nominees of national and
regional parties or organizations must be bona fide members of such parties or organizations.

6. National, regional, and sectoral parties or organizations shall not be disqualified if some of their
nominees are disqualified, provided that they have at least one nominee who remains qualified.
(Atong Paglaum, Inc., et al. v. COMELEC, G.R. No. 203766, 694 SCRA 477, April 2, 2013, En Banc
[Carpio])

Based on the foregoing, it can be inferred that although the party-list system is a social justice tool
designed to have the marginalized and underrepresented sectors of society represented in the House of
Representatives, nonetheless, the dominant political parties are not totally prohibited from participating in
party-list elections.

Although, as a rule, they may not participate in party-list elections if they field candidates in district
elections, however, by way of an exception, they may still participate through their sectoral wing, provided that
the sectoral wing is registered separately as a political party in the COMELEC and is linked to the dominant
political party through a coalition. (Atong Paglaum, Inc., et al. v. COMELEC, G.R. No. 203766, 694 SCRA
477, April 2, 2013, En Banc [Carpio])

Ang Bagong Bayani – OFW Labor Party v. COMELEC

18
 The religious sector is expressly prohibited from participating in party-list elections (Sec. 5, 2nd par., Art.
VI, 1987 Constitution). Religious denominations and sects are even prohibited from being registered as
political parties in the COMELEC (Sec. 2, par. 5, Art. IX-C, 1987 Constitution).

However, the Supreme Court clarified, based on the intent of the framers of the 1987 Constitution, that
what is prohibited is the registration of a religious sect as a political party; there is no prohibition against a
priest running as a candidate.

Ang Ladlad-LGBT Party v. Commission on Elections, G.R. No. 190582, 618 SCRA 32, April 8, 2010, En
Banc (Del Castillo)

The act of the COMELEC of not allowing the registration of Ang Ladlad-LGBT Party as a political party
to participate in party-list elections on the ground that its members are “immoral,” citing verses from the Bible
and the Koran, is tainted with grave abuse of discretion as it violated the non-establishment clause of freedom
of religion and, therefore, should be nullified.

Under this non-establishment clause of freedom of religion, the COMELEC, as an agency of the
government, is not supposed to use religious standards in its decisions and actions.

Veterans Federation Party v. COMELEC

Under Sec. 5, 2nd par., Art. VI of the Constitution, the party-list representatives shall constitute twenty
(20) percent of the total number of representatives, including those under the party-list. Based on this, the ratio
is 4:1, i.e., for every four (4) district representatives, there should be one (1) party-list representative.

In the computation of the number of seats allocated to party-list representatives, fractional

representation is not allowed is it will exceed the twenty (20) allocated seats for party-list representatives and,
therefore, will violate the Constitution. In such a case, what should be done is simply to disregard the fraction.

The Inviolable Parameters to Determine the Winners in Party-list Elections are:

1. the twenty (20) percent allocation;

2. the two (2) percent threshold;
3. the three (3) - seat limit; and
4. proportional representation

Barangay Association for National Advancement and Transparency (BANAT) v. COMELEC, G.R. No.
179271, 586 SCRA 210, July 2, 2009, En Banc (Carpio)

What was declared unconstitutional in this case was not the two (2) percent threshold itself; but rather,
the continued application of the two (2) percent threshold in determining the additional seats that will be
allocated to winners in party-list elections. Thus, the SC clarified:

“We rule that, in computing the allocation of additional seats, the continued operation of the
two percent threshold for the distribution of the additional seats as found in the second clause of
Section 11(b) of R.A. No. 7941 is unconstitutional. This Court finds that the two percent threshold
makes it mathematically impossible to achieve the maximum number of available party list seats when
the number of available party list seats exceeds 50. The continued operation of the two percent
threshold in the distribution of the additional seats frustrates the attainment of the permissive ceiling
that 20% of the members of the House of Representatives shall consist of party-list representatives.

“X x x

“We therefore strike down the two percent threshold only in relation to the distribution of the
additional seats as found in the second clause of Section 11(b) of R.A. No. 7941. The two percent
threshold presents an unwarranted obstacle to the full implementation of Section 5(2), Article VI of the

19
 Constitution and prevents the attainment of “the broadest possible representation of party, sectoral or
group interests in the House of Representatives.”

Party-list Representatives and District Representatives have the same Rights, Salaries, and
Emoluments

Once elected, both the district representatives and the party-list representatives are treated in like
manner. They have the same deliberative rights, salaries, and emoluments. They can participate in the
making of laws that will directly benefit their legislative districts or sectors. They are also subject to the same
term limitation of three years for a maximum of three consecutive terms. (Daryl Grace J. Abayon v. The
Honorable House of Representatives Electoral Tribunal, et al., G.R. Nos. 189466 and 189506, 612 SCRA
375, 11 February 2010, En Banc [Abad])

Oversight Powers and Functions of Congress

MakalIntal v. COMELEC (Justice Reynato S. Puno’s Separate Concurring Opinion; ABAKADA Guro
Party List v. Secretary Purisima)

Post-enactment measures undertaken by Congress to enhance its understanding of, and influence
over, the legislation it has enacted.

This is intrinsic in the grant of legislative power itself to Congress, and integral to the system of checks
and balances inherent in a democratic system of government.

Categories of Oversight Powers and Functions

1. Legislative Scrutiny
2. Legislative Investigation
3. Legislative Supervision

What is a Legislative Veto?

A disapproval by Congress, or by an oversight committee of Congress, of an administrative regulation

promulgated by an administrative body or agency.

The Power of Appropriation

No money shall be paid out of the Treasury except in pursuance of an appropriations made by
law. (Section 29 [1], Article VI, 1987 Constitution)

Under the Constitution, the power of appropriation is vested in the Legislature, subject to the
requirement that appropriations bills originate exclusively in the House of Representatives with the option of
the Senate to propose or concur with amendments. While the budgetary process commences from the
proposal submitted by the President to Congress, it is the latter which concludes the exercise by crafting an
appropriation act it may deem beneficial to the nation, based on its own judgment, wisdom and purposes. Like
any other piece of legislation, the appropriation act may then be susceptible to objection from the branch
tasked to implement it, by way of a Presidential veto. Thereafter, budget execution comes under the domain of
the Executive branch which deals with the operational aspects of the cycle including the allocation and release
of funds earmarked for various projects. Simply put, from the regulation of fund releases, the implementation
of payment schedules and up to the actual spending of the funds specified in the law, the Executive takes the
wheel. The DBM (Department of Budget and Management) lays down the guidelines for the disbursement of
the fund. This demonstrates the power given to the President to execute appropriation laws and therefore, to
exercise the spending per se of the budget. (Lawyers against Monopoly and Poverty [LAMP] v. The
Secretary of Budget and Management, G.R. No. 164987, Apr. 24, 2012, En Banc [Mendoza])

The “Pork Barrel” System

20
 Considering petitioners’ submission and in reference to its local concept and legal history, the Court
defines the Pork Barrel System as the collective body of rules and practices that govern the manner by
which lump-sum, discretionary funds, primarily intended for local projects, are utilized through the
respective participations of the Legislative and Executive branches of government, including its
members. The Pork Barrel System involves two (2) kinds of lump-sum, discretionary funds:

First, there is the Congressional Pork Barrel which is herein defined as a kind of lump-sum,
discretionary fund wherein legislators, either individually or collectively organized into committees, are
able to effectively control certain aspects of the fund’s utilization through various post-enactment
measures and/or practices; and

Second, there is the Presidential Pork Barrel which is herein defined as a kind of lump-sum,
discretionary fund which allows the President to determine the manner of its utilization. X x x the Court
shall delimit the use of such term to refer only to the Malampaya Funds and the Presidential Social Fund.
(Belgica v. Ochoa, G.R. No. 208566, 710 SCRA 1, 105-106, Nov. 19, 2013, En Banc [Perlas-Bernabe])

The “Pork Barrel” System Declared Unconstitutional: Reasons

The Court renders this Decision to rectify an error which has persisted in the chronicles of our history.
In the final analysis, the Court must strike down the Pork Barrel System as unconstitutional in view of the
inherent defects in the rules within which it operates. To recount, insofar as it has allowed legislators to wield,
in varying gradations, non-oversight, post-enactment authority in vital areas of budget execution, the system
has violated the principle of separation of powers; insofar as it has conferred unto legislators the power of
appropriation by giving them personal, discretionary funds from which they are able to fund specific projects
which they themselves determine, it has similarly violated the principle of non-delegability of legislative
power; insofar as it has created a system of budgeting wherein items are not textualized into the
appropriations bill, it has flouted the prescribed procedure of presentment and, in the process, denied the
President the power to veto items; insofar as it has diluted the effectiveness of congressional oversight by
giving legislators a stake in the affairs of budget execution, an aspect of governance which they may be called
to monitor and scrutinize, the system has equally impaired public accountability; insofar as it has authorized
legislators, who are national officers, to intervene in affairs of purely local nature, despite the existence of
capable local institutions, it has likewise subverted genuine local autonomy; and again, insofar as it has
conferred to the President the power to appropriate funds intended by law for energy-related purposes only to
other purposes he may deem fit as well as other public funds under the broad classification of “priority
infrastructure development projects,” it has once more transgressed the principle of non-delegability.
(Belgica, et al. v. Exec. Sec. Paquito N. Ochoa, et al., G.R. No. 208566, 710 SCRA 1, 160-161, Nov. 19,
2013, En Banc [Perlas-Bernabe])

The Power of Augmentation

No law shall be passed authorizing any transfer of appropriations; however, the President, the
President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the
Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment
any item in the general appropriations law for their respective offices from savings in other items in their
respective appropriations. (Section 25 [5], Article VI, 1987 Constitution)

Requisites for the valid transfer of appropriated funds under Section 25(5), Article VI of the 1987
Constitution

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

(1) There is a law authorizing the President, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and the heads of the Constitutional
Commissions to transfer funds within their respective offices;
(2) The funds to be transferred are savings generated from the appropriations of their respective
offices; and
21
 (3) The purpose of the transfer is to augment an item in the general appropriations law for their
respective offices. (Maria Carolina P. Araullo, et al. v. Benigno Simeon C. Aquino III, et al. G.R.
No., 209287, 728 SCRA 1, July 1, 2014, En Banc [Bersamin])

Congressional Investigations

(PHILCOMSAT Holdings Corporation v. Senate, G.R. No. 180308, June 19, 2012 En Banc [Perlas-
Bernabe])

The Senate Committees’ power of inquiry relative to PSR No. 455 has been passed upon and upheld in
the consolidated cases of In the Matter of the Petition for Habeas Corpus of Camilo L. Sabio which cited Article
VI, Section 21 of the Constitution.

The Court explained that such conferral of the legislative power of inquiry upon any committee of
Congress must carry with it all powers necessary and proper for its effective discharge. On this score, the
Senate Committee cannot be said to have acted with grave abuse of discretion amounting to lack or in excess
of jurisdiction when it submitted Committee Resolution No. 312, given its constitutional mandate to conduct
legislative inquiries. Nor can the Senate Committee be faulted for doing so on the very same day that the
assailed resolution was submitted. The wide latitude given to Congress with respect to these legislative
inquiries has long been settled, otherwise, Article VI, Section 21 would be rendered pointless.

Bengzon, Jr. v. Senate Blue Ribbon Committee

Senate v. Ermita

Neri v. Senate Committee on Accountability of Public Officers and Investigations, 564 SCRA 152, Sept.
4, 2008, En Banc (Leonardo-De Castro)

There is a Recognized Presumptive Presidential Communications Privilege

The Court, in the earlier case of Almonte v. Vasquez, affirmed that the presidential communications
privilege is fundamental to the operation of government and inextricably rooted in the separation of powers
under the Constitution. Even Senate v. Ermita reiterated this concept. There, the Court enumerated the cases
in which the claims of executive privilege was recognized, among them Almonte v. Chavez, Chavez v.
Presidential Commission on Good Government (PCGG), and Chavez v. PEA. The Court articulated in these
cases that “there are certain types of information which the government may withhold from the public,” that
there is a “government privilege against public disclosure with respect to state secrets regarding military,
diplomatic and other national security matters”; and that “the right to information does not extend to
matters recognized as ‘privileged information’ under the separation of powers, by which the Court
meant Presidential conversations, correspondences, and discussions in closed-door Cabinet
meetings.

Xxx

The constitutional infirmity found in the blanket authorization to invoke executive privilege granted by
the President to executive officials in Sec. 2(b) of E.O. No. 464 does not obtain in this case.

In this case, it was the President herself, through Executive Secretary Ermita, who invoked executive
privilege on a specific matter involving an executive agreement between the Philippines and China, which was
the subject of the three (3) questions propounded to petitioner Neri in the course of the Senate Committees’
investigation. Thus, the factual setting of this case markedly differs from that passed upon in Senate v. Ermita.

Moreover x x x the Decision in this present case hews closely to the ruling in Senate v. Ermita, to wit:

Executive Privilege

The phrase “executive privilege is not new in this jurisdiction. It has been used even prior
to the promulgation of the 1986 Constitution. Being of American origin, it is best understood in light of
how it has been defined and used in the legal literature of the United States.
22
 Schwartz defines executive privilege as “the power of the Government to withhold
information from the public, the courts, and the Congress.” Similarly, Rozell defines it as “the right
of the President and high-level executive branch officers to withhold information from Congress, the
courts, and ultimately the public.” X x x In this jurisdiction, the doctrine of executive privilege was
recognized by this Court in Almonte v. Vasquez. Almonte used the term in reference to the same
privilege subject of Nixon. It quoted the following portion of the Nixon decision which explains the basis
for the privilege:

“The expectation of a President to the confidentiality of his conversations and

correspondences, like the claim of confidentiality of judicial deliberations, for example, he
has all the values to which we accord deference for the privacy of all citizens and, added to
those values, is the necessity for protection of the public interest in candid, objective, and even
blunt or harsh opinions in Presidential decision-making. A President and those who assist him
must be free to explore alternatives in the process of shaping policies and making decisions and
to do so in a way many would be unwilling to express except privately. These are the
considerations justifying s presumptive privilege for Presidential communications. The
privilege is fundamental to the operation of government and inextricably rooted in the
separation of powers under the Constitution x x x.”

Clearly, therefore, even Senate v. Ermita adverts to “a presumptive privilege for Presidential
communication,” which was recognized early in Almonte v. Vasquez. To construe the passage in Senate v.
Ermita to x x x referring to the non-existence of a “presumptive authorization” of an executive official, to mean
that the “presumption” in favor of executive privilege “inclines heavily against executive secrecy and in favor of
disclosure” is to distort the ruling in the Senate v. Ermita and make the same engage in self-contradiction.

Senate v. Ermita expounds on the constitutional underpinning of the relationship between the Executive
Department and the Legislative Department to explain why there should be no implied authorization or
presumptive authorization to invoke executive privilege by the President’s subordinate officials, as follows:

“When Congress exercises its power of inquiry, the only way for department heads to
exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the mere
fact that they are department heads. Only one executive official may be exempted from this power –
the President on whom executive power is vested, hence, beyond the reach of Congress except
through the power of impeachment. It is based on he being the highest official of the executive branch,
and the due respect accorded to a co-equal branch of government which is sanctioned by a long-
standing custom.”

Thus, if what is involved is the presumptive privilege of presidential communications when invoked by
the President on a matter clearly within the domain of the Executive, the said presumption dictates that the
same be recognized and be given preference or priority, in the absence of proof of a compelling or critical need
for disclosure by the one assailing such presumption. Any construction to the contrary will render meaningless
the presumption accorded by settled jurisprudence in favor of executive privilege. In fact, Senate v. Ermita
reiterates jurisprudence citing “the considerations justifying a presumptive privilege for Presidential
communications.”

The Electoral Tribunals in Congress

The House of Representatives Electoral Tribunal (HRET) has Jurisdiction over Election Contests
involving Party-List Representatives

It is for the HRET to interpret the meaning of this particular qualification of a nominee – the need for him
or her to be a bona fide member or a representative of his party-list organization – in the context of the facts
that characterize Abayon and Palparan’s relation to Aangat Tayo and Bantay, respectively, and the
marginalized and underrepresented interests that they presumably embody.

Section 17, Article VI of the Constitution provides that the HRET shall be the sole judge of all contests
relating to, among other things, the qualifications of the members of the House of Representatives. Since

23
party-list nominees are “elected members” of the House of Representatives, the HRET has jurisdiction to hear
and pass upon their qualifications. By analogy with the cases of district representatives, once the party or
organization of the party-list nominee has been proclaimed and the nominee has taken his oath and assumed
office as member of the House of Representatives, the COMELEC’s jurisdiction over election contests relating
to his qualification ends and the HRET’s own jurisdiction begins. (Daryl Grace J. Abayon v. The Honorable
House of Representatives Electoral Tribunal, et al., G.R. Nos. 189466 and 189506, 612 SCRA 375, 11
February 2010, En Banc [Abad])

The Executive Department (Article VII, 1987 Constitution)

The executive power shall be vested in the President of the Philippines. (Section 1, Article VII,
1987 Constitution)

It has already been established that there is one repository of executive powers, and that is the
President of the Republic. This means that when Section 1, Article VII of the Constitution speaks of executive
power, it is granted to the President and no one else. Corollarily, it is only the President, as Chief Executive,
who is authorized to exercise emergency powers as provided under Section 23, Article VI, of the Constitution,
as well as what became known as the calling-out powers under Section 18, Article VII thereof. (Jamar
Kulayan v. Gov. Abdusakur Tan, G.R. No. 187298, July 3, 2012, En Banc [Sereno, CJ]),

The Doctrine of Qualified Political Agency

Under this doctrine, which recognizes the establishment of a single executive, all executive and
administrative organizations are adjuncts of the Executive Department, the heads of the various executive
departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive
is required by the Constitution or law to act in person or the exigencies of the situation demand that he act
personally, the multifarious executive and administrative functions of the Chief Executive are performed by and
through the executive departments, and the acts of the Secretaries of such departments, performed and
promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive
presumably the acts of the Chief Executive. (Resident Marine Mammals of the Protected Seascape Tanon
Strait, et al. v. Secretary Angelo Reyes, et al., GR Nos. 180771 and 181527, April 21, 2015, En Banc
[Leonardo-De Castro])

Resident Marine Mammals of the Protected Seascape Tanon Strait, et al. v. Secretary Angelo Reyes, et
al., G.R. No. 180771, April 21, 2015, En Banc (Leonardo-De Castro)

The constitutionality of the Service Contract Agreement for the large-scale exploration, development
and utilization of oil and petroleum gasses in Tanon Strait entered into between a Japanese petroleum
corporation and the Philippine Government was challenged in this case. The one who signed this Agreement
on behalf of the Philippine government was the Secretary of Energy. Was the Agreement valid?

The SC said “No.” It violated Section 2, 4th par., Article XII of the Constitution (National Economy and
Patrimony) which states that it is the President who should enter into that kind of contract with foreign
corporations. Public respondents, in trying to justify their action, however, invoked the doctrine of qualified
political agency since the Secretary of Energy is an alter-ego of the President. The SC clarified that this
doctrine of qualified political agency may not be validly invoked if it is the Constitution itself that provides that
the act should be performed by the President no less, especially since what are involved are natural resources.

The Appointing Power of the President

Not All Officers Appointed by the President under Section 16, Article VII of the 1987 Constitution Shall
Require Confirmation by the Commission on Appointments

Conformably, as consistently interpreted and ruled in the leading case of Sarmiento III v. Mison, and in
the subsequent cases of Bautista v. Salonga, Quintos-Deles v. Constitutional Commission, and Calderon v.

24
Carale, under Section 16, Article VII, of the Constitution, there are four groups of officers of the government to
be appointed by the President:

First, the heads of the executive departments, ambassadors, other public ministers and consuls,
officers of the armed forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution;

Second, all other officers of the Government whose appointments are not otherwise provided for
by law;

Third, those whom the President may be authorized by law to appoint;

Fourth, officers lower in rank whose appointments the Congress may by law vest in the
President alone.

It is well-settled that only presidential appointees belonging to the first group require the confirmation by
the Commission on Appointments. (Manalo v. Sistoza, 312 SCRA 239, Aug. 11, 1999, En Banc [Purisima])

The Nature of an Ad Interim Appointment

An ad interim appointment is a permanent appointment because it takes effect immediately and can no
longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to
confirmation by the Commission on Appointments does not alter its permanent character. The Constitution
itself makes an ad interim appointment permanent in character by making it effective until disapproved by the
Commission on Appointments or until the next adjournment of Congress. X x x Thus, the ad interim
appointment remains effective until such disapproval or next adjournment, signifying that it can no longer be
withdrawn or revoked by the President.

Xxx

More than half a century ago, this Court had already ruled that an ad interim appointment is permanent
in character. In Summers v. Ozaeta, decided on October 25, 1948, we held that:

“x x x an ad interim appointment is one made in pursuance of paragraph (4), Section 10, Article VII of
the Constitution, which provides that the ‘President shall have the power to make appointments during
the recess of the Congress, but such appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the Congress.’ It is an appointment
permanent in nature, and the circumstance that it is subject to confirmation by the Commission on
Appointments does not alter its permanent character. An ad interim appointment is disapproved
certainly for a reason other than that its provisional period has expired. Said appointment is of course
distinguishable from an ‘acting’ appointment which is merely temporary, good until another permanent
appointment is issued.”

The Constitution imposes no condition on the effectivity of an ad interim appointment, and thus an ad
interim appointment takes effect immediately. The appointee can at once assume office and exercise, as a de
jure officer, all the powers pertaining to the office. X x x

Thus, the term “ad interim appointment”, as used in letters of appointment signed by the President,
means a permanent appointment made by the President in the meantime that Congress is in recess. It does
not mean a temporary appointment that can be withdrawn or revoked at any time. The term, although not
found in the text of the Constitution, has acquired a definite legal meaning under Philippine jurisprudence. The
Court had again occasion to explain the nature of an ad interim appointment in the more recent case of
Marohombsar v. Court of Appeals, where the Court stated:

“We have already mentioned that an ad interim appointment is not descriptive of the nature of the
appointment, that is, it is not indicative of whether the appointment is temporary or in an acting
capacity, rather it denotes the manner in which the appointment was made. In the instant case, the
appointment extended to private respondent by then MSU President Alonto, Jr. was issued without
condition nor limitation as to tenure. The permanent status of private respondent’s appointment as
Executive Assistant II was recognized and attested to by the Civil Service Commission Regional Office
No. 12. Petitioner’s submission that private respondent’s ad interim appointment is synonymous with a
25
 temporary appointment which could be validly terminated at any time is clearly untenable. Ad interim
appointments are permanent appointment but their terms are only until the Board disapproves them.”

An ad interim appointee who has qualified and assumed office becomes at that moment a government
employee and therefore part of the civil service. He enjoys the constitutional protection that “[n]o officer or
employee in the civil service shall be removed or suspended except for cause provided by law.” (Section 2[3],
Article IX-B of the Constitution) Thus, an ad interim appointment becomes complete and irrevocable once the
appointee has qualified into office. X x x Once an appointee has qualified, he acquires a legal right to the
office which is protected not only by statute but also by the Constitution. He can only be removed for cause,
after notice and hearing, consistent with the requirements of due process. (Matibag v. Benipayo, 380 SCRA
49, April 2, 2002, En Banc [Carpio])

Limitations on the Appointing Power of the President

Two months immediately before the next presidential elections and up to the end of his term, a
President or Acting President shall not make appointments, except temporary appointments to
executive positions when continued vacancies therein will prejudice public service or endanger public
safety. (Section 15, Article VII, 1987 Constitution)

In Re: Honorable Mateo Valenzuela and Placido Vallarta

De Castro v. Judicial and Bar Council

The Calling-out Power of the President as Commander-in-Chief of the Armed Forces

While the President is still a civilian, Article II, Section 3 of the Constitution mandates that civilian
authority is, at all times, supreme over the military, making the civilian president the nation’s supreme military
leader. The net effect of Article II, Section 3, when read with Article VII, Section 18, is that a civilian President
is the ceremonial, legal and administrative head of the armed forces. The Constitution does not require that
the President must be possessed of military training and talents, but as Commander-in-Chief, he has the
power to direct military operations and to determine military strategy. Normally, he would be expected to
delegate the actual command of the armed forces to military experts, but the ultimate power is his. (Jamar
Kulayan v. Gov. Abdusakur Tan, G.R. No. 187298, July 3, 2012, En Banc [Sereno, CJ])

The Calling out Power is exclusive to the President

In Jamar Kulayan v. Gov. Abdusakur Tan, G.R. No. 187298, July 3, 2012, En Banc (Sereno, CJ),
the Court held:

Given the foregoing, Governor Tan is not endowed with the power to call upon the armed forces at his
own bidding. In issuing the assailed proclamation, Governor Tan exceeded his authority when he declared a
state of emergency and called upon the Armed Forces, the police, and his own civilian Emergency Force. The
calling-out powers contemplated under the Constitution is exclusive to the President. An exercise by another
official, even if he is the local chief executive, is ultra vires, and may not be justified by the invocation of
Section 465 of the Local Government Code.

IBP v. Zamora

Professor Randolph David v. GMA

The Pardoning Power of the President

Except in cases of impeachment, or as otherwise provided in this Constitution, the President

may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by
final judgment.

26
 He shall also have the power to grant amnesty with the concurrence of all the Members of the
Congress. (Section 19, 1987 Constitution)

Was the Pardon granted to former President Estrada an Absolute Pardon?

Former President Estrada was granted an absolute pardon that fully restored all his civil and political
rights, which naturally includes the right to seek public office. The wording of the pardon extended to former
President Estrada is complete, unambiguous, and unqualified. It is likewise unfettered by Articles 36 and 41 of
the Revised Penal Code. The only reasonable, objective, and constitutional interpretation of the language of
the pardon is that the same in fact conforms to Articles 36 and 41 of the Revised Penal Code. (Atty. Alicia
Risos-Vidal v. COMELEC, G.R. No. 206666, January 21, 2015, En Banc [Leonardo-De Castro])

The 1987 Constitution specifically Section 19 of Article VII and Section 5 of Article IX-C, provides that
the President of the Philippines possesses the power to grant pardons, along with other acts of executive
clemency.

It is apparent that the only instances in which the President may not extend pardon remain to be: (1)
impeachment cases; (2) cases that have not yet resulted in a final conviction; and (3) cases involving violations
of election laws, rules and regulations in which there was no favorable recommendation coming from the
COMELEC. Therefore, it can be argued that any act of Congress by way of statute cannot operate to delimit
the pardoning power of the President.

It is unmistakably the long-standing position of this Court that the exercise of the pardoning power is
discretionary in the President and may not be interfered with by Congress or the Court, except only when it
exceeds the limits provided for by the Constitution.

This doctrine of non-diminution or non-impairment of the President’s power of pardon by acts of

Congress, specifically through legislation, was strongly adhered to by an overwhelming majority of the framers
of the 1987 Constitution when they finally rejected a proposal to carve out an exception from the pardoning
power of the President in the form of “offenses involving graft and corruption” that would be enumerated and
defined by Congress through the enactment of a law. (Atty. Alicia Risos-Vidal v. COMELEC, G.R. No.
206666, January 21, 2015, En Banc [Leonardo-De Castro])

The foregoing pronouncements solidify the thesis that Articles 36 and 41 of the Revised Penal Code
cannot, in any way, serve to abridge or diminish the exclusive power and prerogative of the President to
pardon persons convicted of violating penal laws.

Xxx

A rigid and inflexible reading of the above provisions of law is unwarranted, especially so if it will defeat
or unduly restrict the power of the President to grant executive clemency.

It is well-entrenched in this jurisdiction that where the words of a statute are clear, plain, and free from
ambiguity, it must be given its literal meaning and applied without attempted interpretation. Verba legis non est
recedendum. From the words of a statute there should be no departure (Republic v. Camacho, G.R. No.
185604, June 13, 2013, 698 SCRA 380, 398). It is this Court’s firm view that the phrase in the presidential
pardon at issue which declares that former President Estrada “is hereby restored to his civil and political rights”
substantially complies with the requirement of express restoration.

Xxx

For this reason, Articles 36 and 41 of the Revised Penal Code should be construed in a way that will
give full effect to the executive clemency granted by the President, instead of indulging in an overly strict
interpretation that may serve to impair or diminish the import of the pardon which emanated from the Office of
the President and duly signed by the Chief Executive himself/herself. The said codal provisions must be
construed to harmonize the power of Congress to define crimes and prescribe penalties for such crimes and
the power of the President to grant executive clemency. All that said provisions impart is that the pardon of the
principal penalty does not carry with it the remission of the accessory penalties unless the President expressly
includes said accessory penalties in the pardon. It still recognizes the Presidential prerogative to grant
27
executive clemency and, specifically, to decide to pardon the principal penalty while excluding its accessory
penalties or to pardon both. Thus, Articles 36 and 41 only clarify the effect of the pardon so decided upon by
the President on the penalties imposed in accordance with law.

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

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

Xxx

No less than the International Covenant on Civil and Political Rights, to which the Philippines is a
signatory, acknowledges the existence of said rights. X x x

Recently, in Sobejana-Condon v. Commission on Elections (G.R. No. 198742, August 10, 2012, 678
SCRA 267, 292), the Court unequivocally referred to the right to seek public elective office as a political right x
x x.

Thus, from both law and jurisprudence, the right to seek public elective office is unequivocally
considered as a political right. Hence, the Court reiterates its earlier statement that the pardon granted to
former President Estrada admits no other interpretation other than to mean that, upon acceptance of the
pardon granted to him, he regained his FULL civil and political rights – including the right to seek elective
office. (Atty. Alicia Risos-Vidal v. COMELEC, G.R. No. 206666, January 21, 2015, En Banc [Leonardo-De
Castro])

Contrary to Risos-Vidal’s declaration, the third preambular clause of the pardon, i.e., “[w]hereas,
Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or office,” neither
makes the pardon conditional, nor militates against the conclusion that former President Estrada’s rights to
suffrage and to seek public elective office have been restored. This is especially true as the pardon itself does
not explicitly impose a condition or limitation, considering the unqualified use of the term “civil and political
rights” as being restored.

Jurisprudence educates that a preamble is not an essential part of an act as it is an introduction or

preparatory clause that explains the reasons for the enactment, usually introduced by the word “whereas.”
(People v. Balasa, 356 Phil. 362, 396 [1998]) Whereas clauses do not form part of a statute because, strictly
speaking, they are not part of the operative language of the statute (Llamado v. Court of Appeals, 256 Phil.
328, 339 [1989]). In this case, the whereas clause at issue is not an integral part of the decree of the pardon,
and therefore, does not by itself alone operate to make the pardon conditional or to make its effectivity
contingent upon the fulfillment of the aforementioned commitment nor to limit the scope of the pardon. (Atty.
Alicia Risos-Vidal v. COMELEC, G.R. No. 206666, January 21, 2015, En Banc [Leonardo-De Castro])

The Diplomatic and Treaty-Making Power of the President

No treaty or international agreement shall be valid and effective unless concurred in by at least
two-thirds of all the Members of the Senate. (Section 21, Article VII, 1987 Constitution)

After the expiration in 1991 of the Agreement between the Republic of the Philippines and the
United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not
be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the
Congress so requires, ratified by a majority of the votes cast by the people in a national referendum

28
 held for that purpose, and recognized as a treaty by the other contracting State. (Section 25, Article
XVIII, 1987 Constitution)

Who has the power to ratify a treaty?

In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the
legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the
ratification. (BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No.
138570, Oct. 10, 2000, En Banc [Buena])

With respect to the Visiting Forces Agreement (VFA) entered into between the Philippines and the USA
in 1998, Section 25, Article XVIII of the Constitution applies, it being a special provision

Section 21, Article VII deals with treaties or international agreements in general, in which case, the
concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the subject treaty,
or international agreement, valid and binding on the part of the Philippines. This provision lays down the
general rule on treaties or international agreements and applies to any form of treaty with a wide variety of
subject matter, such as, but not limited to, extradition or tax treaties or those economic in nature. All treaties or
international agreements entered into by the Philippines, regardless of subject matter, coverage, or particular
designation or appellation, requires the concurrence of the Senate to be valid and effective.

In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve the
presence of foreign military bases, troops or facilities in the Philippines. Under this provision, the concurrence
of the Senate is only one of the requisites to render compliance with the constitutional requirements and to
consider the agreement binding on the Philippines. Section 25, Article XVIII further requires that “foreign
military bases, troops, or facilities” may be allowed in the Philippines only by virtue of a treaty duly concurred in
by the Senate, ratified by a majority of the votes cast in a national referendum held for that purpose if so
required by Congress, and recognized as such by the other contracting State.

Xxx

On the whole, the VFA is an agreement which defines the treatment of United States troops and
personnel visiting the Philippines. It provides for the guidelines to govern such visits of military personnel, and
further defines the rights of the United States and the Philippine government in the matter of criminal
jurisdiction, movement of vessels and aircraft, importation and exportation of equipment, materials and
supplies.

Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign military
bases, troops, or facilities, should apply in the instant case. To a certain extent and in a limited sense,
however, the provisions of Section 21, Article VII will find applicability with regard to the issue and for the sole
purpose of determining the number of votes required to obtain the valid concurrence of the Senate x x x.

It is a finely-imbedded principle in statutory construction that a special provision or law prevails over a
general one. Lex specialis derogat generali. (BAYAN [Bagong Alyansang Makabayan] v. Executive
Secretary Ronaldo Zamora, G.R. No. 138570 and Companion Cases, Oct. 10, 2000, 342 SCRA 449, 481-
492, En Banc [Buena])

Discuss the binding effect of treaties and executive agreements in international law.

In international law, there is no difference between treaties and executive agreements in their binding
effect upon states concerned, as long as the functionaries have remained within their powers. International
law continues to make no distinction between treaties and executive agreements: they are equally binding
obligations upon nations. (BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo
Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc [Buena])

29
Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., G.R. No. 212426, January 12,
2016, En Banc (Sereno, CJ)

Powers relative to Appropriation measures

The President shall submit to the Congress within thirty days from the opening of every regular
session, as the basis of the general appropriations bill, a budget of expenditures and sources of
financing, including receipts from existing and proposed revenue measures. (Sec. 22, Art. VII, 1987
Constitution)

The Congress may not increase the appropriations recommended by the President for the
operation of the Government as specified in the budget. The form, content, and manner of preparation
of the budget shall be prescribed by law. (Sec. 25[1], Art. VI, 1987 Constitution)

Emergency Power

In times of war or other national emergency, the Congress may, by law, authorizing the
President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers
necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of
the Congress, such powers shall cease upon the next adjournment thereof. (Section 23[2], Article VI,
1987 Constitution)

The Judicial Department (Article VIII, 1987 Constitution)

The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has been
a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. (Section 1, Article VIII, 1987 Constitution)

Thus, the Constitution vests judicial power in the Court and in such lower courts as may be established
by law. In creating a lower court, Congress concomitantly determines the jurisdiction of that court, and that
court, upon its creation, becomes by operation of the Constitution one of the repositories of judicial power.
However, only the Court is a constitutionally created court, the rest being created by Congress in its exercise of
the legislative power.

The Constitution states that judicial power includes the duty of the courts of justice not only “to settle
actual controversies involving rights which are legally demandable and enforceable” but also “to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government.” It has thereby expanded the concept of judicial
power, which up to then was confined to its traditional ambit of settling actual controversies involving rights that
were legally demandable and enforceable.

The background and rationale of the expansion of judicial power under the 1987 Constitution were laid
out during the deliberations of the 1986 Constitutional Commission by Commissioner Roberto R. Concepcion
(a former Chief Justice of the Philippines) in his sponsorship of the proposed provisions on the Judiciary.

Our previous Constitutions equally recognized the extent of the power of judicial review and the great
responsibility of the Judiciary in maintaining the allocation of powers among the three great branches of the
Government. (Maria Carolina P. Araullo, et al. v. Benigno Simeon C. Aquino III, et al. G.R. No., 209287,
July 1, 2014, En Banc [Bersamin])

Judicial Power and the Political Question Doctrine

30
The Political Question Doctrine

Baker v. Carr remains the starting point for analysis under the political question doctrine.

In Tanada v. Cuenco, we held that political questions refer “to those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the legislative or executive branch of the government. It is concerned with
issues dependent upon the wisdom, not legality of a particular measure.” (Vinuya, et al. v. The Honorable
Executive Secretary Alberto G. Romulo, et al., G.R. No. 162230, April 28. 2010, En Banc [Del Castillo])

Saturnino C. Ocampo, et al. v. Rear Admiral Ernesto C. Enriquez, et al., G.R. No. 225973, November 8,
2016, En Banc (Peralta)

The petitioners failed to show that President Duterte committed grave abuse of discretion when he
allowed the burial of former President Ferdinand E. Marcos at the “Libingan ng mga Bayani (LNMB).”

Held:

In sum, there is no clear constitutional or legal basis to hold that there was a grave abuse of
discretion amounting to lack or excess of jurisdiction which would justify the Court to interpose its
authority to check and override an act entrusted to the judgment of another branch. Truly, the
President’s discretion is not totally unfettered. X x x. At bar, President Duterte x x x acted within the
bounds of the law and jurisprudence, Notwithstanding the call of human rights advocate, the Court
must uphold what is legal and just. And that is not to deny Marcos of his rightful place at the LNMB.
For even the Framers of our Constitution intend that full respect for human rights is available at any
stage of a person’s development, from the time he or she becomes a person to the time he or she
leaves this earth.

There are certain things that are better left for history – not this Court – to adjudge. The Court
could only do so much in accordance with clearly established rules and principles. Beyond that, it is
ultimately for the people themselves, as the sovereign, to decide, a task that may require the better
perspective that the passage of time provides.

Vinuya, et. al. v. The Honorable Executive Secretary Alberto G. Romulo, et. al., G.R. No. 162230, April
28. 2010, En Banc (Del Castillo)

The SC may not compel the President to take up the cause of the petitioners (comfort women during
World War II) against Japan. That will violate the doctrine of separation of powers for that is a political
question – a question in regard to which full discretionary authority has been delegated by the Constitution to
the President as the chief architect of our foreign policy and as the spokesman of the nation in matters of
foreign relations. The most that the SC may do is to exhort her, to urge her to take up petitioners cause – but
not to compel her.

In matters of foreign policy, the Executive and the Judiciary must speak with just one voice to avoid
serious embarrassments and strained relations with foreign countries. Elaborating, the Court held:

“To be sure, not all cases implicating foreign relations present political questions, and courts
certainly possess the authority to construe or invalidate treaties and executive agreements. However,
the question whether the Philippine government should espouse claims of its nationals against a
foreign government is a foreign relations matter, the authority for which is demonstrably committed by
our Constitution not to the courts but to the political branches. In this case, the Executive Department
has already decided that it is to the best interest of the country to waive all claims of its nationals for
reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the
courts to question.

31
 “In the seminal case of US v. Curtiss-Wright Export Corp., the US Supreme Court held that ‘[t]he
President is the sole organ of the nation in its external relations, and its sole representative with foreign
relations.’

“It is quite apparent that if, in the maintenance of our international relations, embarrassment –
perhaps serious embarrassment – is to be avoided and success for our aims achieved, congressional
legislation which is to be made effective through negotiation and inquiry within the international field
must often accord to the President a degree of discretion and freedom from statutory restriction which
would not be admissible where domestic affairs alone involved. Moreover, he, not Congress, has the
better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true
in times of war. He has his confidential sources of information. He has his agents in the form of
diplomatic, consular and other officials.

“X x x

“The Executive Department has determined that taking up petitioners’ cause would be inimical
to our country’s foreign policy interests, and could disrupt our relations with Japan, thereby creating
serious implications for stability in this region. For us to overturn the Executive Department’s
determination would mean an assessment of the foreign policy judgments by a coordinate political
branch to which authority to make that judgment has been constitutionally committed.

Requisites for a Proper Exercise by the Court of its Power of Judicial Review

The prevailing rule in constitutional litigation is that no question involving the constitutionality or validity
of a law or governmental act may be heard and decided by the Court unless there is compliance with the legal
requisites for judicial inquiry, namely: (a) there must be an actual case or controversy calling for the exercise
of judicial power; (b) the person challenging the act must have the standing to question the validity of the
subject act or issuance; (c) the question of constitutionality must be raised at the earliest opportunity; and (d)
the issue of constitutionality must be the very lis mota of the case. Of these requisites, case law states that
the first two are the most important. (Belgica, et al. v. Exec. Sec. Paquito N. Ochoa, et al., G.R. No.
208566, 710 SCRA 1, 89, Nov. 19, 2013, En Banc [Perlas-Bernabe])

It is well-settled that no question involving the constitutionality or validity of a law or governmental act
may be heard and decided by the Court unless the following requisites for judicial inquiry are present: (a) there
must be an actual case of controversy calling for the exercise of judicial power; (b) the person challenging the
act must have the standing to question the validity of the subject or issuance; (c) the question of
constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must be the very
lis mota of the case. In this case, the absence of the first two, which are the most essential, renders the
discussion of the last two superfluous. (Saturnino C. Ocampo, et al. v. Rear Admiral Ernesto C. Enriquez,
et al., G.R. No. 225973, November 8, 2016, En Banc [Peralta])

The Meaning of an “Actual Case or Controversy”

An “actual case or controversy” is one which involves a conflict of legal rights, an assertion of opposite
legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or
dispute. There must be contrariety of legal rights that can be interpreted and enforced on the basis of existing
law or jurisprudence. Related to the requisite of an actual case or controversy is the requisite of “ripeness,”
which means that something had been accomplished or performed by either branch before a court may come
into the picture, and the petitioner must allege the existence of an immediate or threatened injury to itself as a
result of the challenged action. Moreover, the limitation on the power of judicial review to actual cases and
controversies carries the assurance that the courts will not intrude into areas committed to the other branches
of the government. Those areas pertain to questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the
legislative or executive branch of the government. As they are concerned with questions of policy and issues
dependent upon the wisdom, not legality of a particular measure, political questions used to be beyond the
ambit of judicial review. However, the scope of the political question doctrine has been limited by Section 1 of
32
Article VIII of the 1987 Constitution when it vested in the judiciary the power to determine whether or not there
has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. (Saturnino C. Ocampo, et al. v. Rear Admiral Ernesto C. Enriquez, et
al., G.R. No. 225973, November 8, 2016, En Banc [Peralta])

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. (Republic Telecommunications Holding, Inc. v. Santiago, 556 Phil. 83, 91-92 [2001]) The rule is that
courts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually
challenging. The controversy must be justiciable – definite and concrete, touching on the legal relations of
parties having adverse legal interests. In other words, the pleadings must show an active antagonistic
assertion of a legal right, on the one hand, and a denial thereof, on the other; that is, it must concern a real,
tangible and not merely a theoretical question or issue. There ought to be an actual and substantial
controversy admitting of specific relief through a decree conclusive in nature, as distinguished from an opinion
advising what the law would be upon a hypothetical state of facts. (Information Technology Foundation of the
Philippines v. Commission on Elections, 499 Phil. 281, 304-305 [2005])

Corollary to the requirement of an actual case or controversy is the requirement of ripeness (Lawyers
against Monopoly and Poverty [LAMP] v. The Secretary of Budget and Management, GR No. 164987, April 24,
2012, 670 SCRA 373, 383). A question is ripe for adjudication when the act being challenged has had a direct
adverse effect on the individual challenging it. For a case to be considered ripe for adjudication, it is a
prerequisite that something has then been accomplished or performed by either branch before a court may
come into the picture, and the petitioner must allege the existence of an immediate or threatened injury to
himself as a result of the challenged action. He must show that he has sustained or is immediately in danger
of sustaining some direct injury as a result of the act complained of (The Province of North Cotabato v. The
Government of the Republic of the Philippines, 589 Phil. 387, 481 [2008]). (James M. Imbong, et al. v. Hon.
Paquito N. Ochoa, Jr., et al., GR No. 204819, April 8, 2014,

The Moot and Academic Principle

An action is considered “moot” when it no longer presents a justiciable controversy because the issued
involved have become academic or dead, or when the matter in dispute has already been resolved and hence,
one is not entitled to judicial intervention unless the issue is likely to be raised again between the parties
(Santiago v. Court of Appeals, 348 Phil. 792, 800 [1998]). Time and again, courts have refrained from even
expressing an opinion in a case where the issues have become moot and academic, there being no more
justiciable controversy to speak of, so that a determination thereof would be of no practical use or value
(Barbieto v. Court of Appeals, GR No. 184646, October 30, 2009, 604 SCRA 825, 840). (International
Service for the Acquisition of Agri-biotech Applications, Inc. v. Greenpeace Southeast Asia
(Philippines), et al., GR No. 209271, December 8, 2015, En Banc [Villarama])

Exceptions to the Moot and Academic Principle

Even on the assumption of mootness, jurisprudence dictates that “the ‘moot and academic’ principle is
not a magical formula that can automatically dissuade the Court in resolving a case.” The Court will decide
cases, otherwise moot, if first, there is a grave violation of the Constitution; second, the exceptional character
of the situation and the paramount public interest is involved; third, when the constitutional issue raised
requires formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the case is
capable of repetition yet evading review. (Belgica, et al. v. Exec. Sec. Paquito N. Ochoa, et al., G.R. No.
208566, 710 SCRA 1, 93, Nov. 19, 2013, En Banc [Perlas-Bernabe])

Locus Standi

Defined as a right of appearance in a court of justice on a given question, locus standi requires that a
party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the court depends for illumination of difficult
constitutional questions. Unless a person has sustained or is in imminent danger of sustaining an injury as a

33
result of an act complained of, such party has no standing. (Saturnino C. Ocampo, et al. v. Rear Admiral
Ernesto C. Enriquez, et al., G.R. No. 225973, November 8, 2016, En Banc [Peralta])

Locus standi is “a right of appearance in a court of justice on a given question (Bayan Muna v. Romulo,
G.R. No. 159618, February 1, 2011, 641 SCRA 244, 254, citing David v. Macapagal-Arroyo, 522 Phil. 705, 755
[2006]). Specifically, it is “a party’s personal and substantial interest in a case where he has sustained or will
sustain direct injury as a result” of the act being challenged, and “calls for more than just a generalized
grievance.” (Id., citing Jumamil v. Café, 507 Phil. 455, 465 [2005], citing Integrated Bar of the Philippines v.
Zamora, 392 Phil. 618, 632-633 [2000]) However, the rule on standing is a procedural matter which this Court
has relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers and legislators when the public interest
so requires, such as when the subject matter of the controversy is of transcendental importance, of
overreaching significance to society, or of paramount public interest. (Biraogo v. Philippine Truth Commission
of 2010, G.R. Nos. 192935 & 193036, December 7, 2010, 637 SCRA 78, 151 citing Social Justice Society
[SJS] v. Dangerous Drugs Board, et al., 591 Phil. 393404 [2008]; Tatad v. Secretary of the Department of
Energy, 346 Phil. 321 [1997] and De Guia v. COMELEC, G.R. No. 104712, May 6, 1992, 208 SCRA 420, 422.)

In the landmark case of Oposa v. Factoran, Jr., G.R. No. 101083, July 30, 1993, 224 SCRA 792, we
recognized the “public right” of citizens to “a balanced and healthful ecology which, for the first time in our
constitutional history, is solemnly incorporated in the fundamental law.” We declared that the right to a
balanced and healthful ecology need not be written in the Constitution for it is assumed, like other civil and
political rights guaranteed in the Bill of Rights, to exist from the inception of mankind and it is an issue of
transcendental importance with intergenerational implications. Such right carries with it the correlative duty to
refrain from impairing the environment. (Id. At 804-805) (Most Rev. Pedro D. Arigo, et al. v. Scott H. Swift,
et al., G.R. No. 206510, September 16, 2014, En Banc [Villarama, Jr.])

Taxpayers’ Suit

Taxpayers have been allowed to sue where there is a claim that public funds are illegally disbursed or
that public money is being deflected to any improper purpose, or that public funds are wasted through the
enforcement of an invalid or unconstitutional law. (Saturnino C. Ocampo, et al. v. Rear Admiral Ernesto C.
Enriquez, et al., G.R. No. 225973, November 8, 2016, En Banc [Peralta])

Suits Filed by Concerned Citizens

As concerned citizens, petitioners are also required to substantiate that the issues are of
transcendental significance, or of paramount public interest. In cases involving such issues, the imminence
and clarity of the threat to fundamental constitutional rights outweigh the necessity for prudence. (Saturnino
C. Ocampo, et al. v. Rear Admiral Ernesto C. Enriquez, et al., G.R. No. 225973, November 8, 2016, En
Banc [Peralta])

Suits Filed by Members of Congress

In the absence of a clear showing of any direct injury to their person or the institution to which they
belong, their standing as members of the Congress cannot be upheld. (Saturnino C. Ocampo, et al. v. Rear
Admiral Ernesto C. Enriquez, et al., G.R. No. 225973, November 8, 2016, En Banc [Peralta])

The Liberalization of the Rules on Legal Standing

The liberalization of standing first enunciated in Oposa, insofar as it refers to minors and generations
yet unborn, is now enshrined in the Rules which allows the filing of a citizen suit in environmental cases. The
provision on citizen suits in the Rules “collapses the traditional rule on personal and direct interest, on the
principle that humans are stewards of nature.” (See ANNOTATION TO THE RULES OF PROCEDURE FOR
ENVIRONMENTAL CASES) (Most Rev. Pedro D. Arigo, et al. v. Scott H. Swift, et al., G.R. No. 206510,
September 16, 2014, En Banc [Villarama, Jr.])

Facial Challenge

34
James M. Imbong, et al. v. Hon. Paquito N. Ochoa, Jr., et al., (GR No. 204819, April 8, 2014, En Banc
[Mendoza])

In United States (US) constitutional law, a facial challenge, also known as a First Amendment
Challenge, is on that is launched to assail the validity of statutes concerning not only protected speech, but
also all other rights in the First Amendment (See United States v. Salerno, 481 U.S. 739 [1987]). 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 statutes (Romualdez v. Commission on Elections, 576 Phil. 357 [2008]; Romualdez v. Sandiganbayan,
479 Phil. 265 [2004]; Estradfa v. Sandiganbayan, 421 Phil. 290 [2001]), it has expanded its scope to cover
statutes not only regulating free speech, but also those involving religious freedom, and other fundamental
rights (Resolution, Romualdez v. Commission on Elections, 594 Phil. 305, 316 [2008]). The underlying reason
for this modification is simple. For unlike its counterpart in the U.S., this Court, under its expanded jurisdiction,
is mandated by the Fundamental Law not only to settle actual controversies involving rights which are legally
demandable and enforceable, but also to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
the Government. Verily, the framers of Our Constitution envisioned a proactive Judiciary, ever vigilant with its
duty to maintain the supremacy of the Constitution.

Consequently, considering that the foregoing petitions have seriously alleged that the constitutional
human rights to life, speech and religion and other fundamental rights mentioned above have been violated by
the assailed legislation, the Court has authority to take cognizance of these kindred petitions and to determine
if the RH (Reproductive Health) Law can indeed pass constitutional scrutiny. To dismiss these petitions on the
simple expedient that there exist no actual case or controversy, would diminish this Court as a reactive branch
of government, acting only when the Fundamental Law has been transgressed, to the detriment of the Filipino
people.

Jose Jesus M. Disini, Jr., et al. v. The Secretary of Justice, et al., G.R. No,. 203335, Feb. 11, 2014, En
Banc (Abad)

When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the
void-for-vagueness doctrine is acceptable. The inapplicability of the doctrine must be carefully delineated. As
Justice Antonio T. Carpio explained in his dissent in Romualdez v. Commission on Elections, “we must view
these statements of the Court on the inapplicability of the overbreadth and vagueness doctrines to penal
statutes as appropriate only insofar as these doctrines are used to mount “facial” challenges to penal statutes
not involving free speech.”

In 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.

The Void-for-vagueness Doctrine and the Doctrine of Overbeadth

Southern Hemisphere Engagement Network, Inc., et al. v. Anti-Terrorism Council, et al. (G.R. Nos.
178552, 178581, 178890, 179157, & 179461, 5 October 2010, En Banc (Carpio-Morales)

In addition, a statute or act suffers from the defect of vagueness when it lacks comprehensible
standards that men of common intelligence must necessarily guess at its meaning and differ as to its
application. The overbreadth doctrine, meanwhile, decrees that a governmental purpose to control or prevent
activities constitutionally subject to state regulations may not be achieved by means which sweep

35
unnecessarily broadly and thereby invade the area of protected freedoms. Distinguished from an as-applied
challenge which considers only extant facts affecting real litigants, a facial invalidation is an examination of the
entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also
on the assumption or prediction that its very existence may cause others not before the court to refrain from
constitutionally protected speech or activities.

The 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. 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 fact,” not merely “as applied
for” so that the overbreadth 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 overbreadth statute on third parties not courageous enough to bring suit. The
Court assumes that an overbreadth law’s “very existence may cause others not before the court to refrain from
constitutionally protected speech or expression.” An overbreadth ruling is designed to remove that deterrent
effect on the speech of those third parties.

The rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other
fundamental rights may be facially challenged. Under no case may ordinary penal statutes be subjected to a
facial challenge. Criminal statutes have general in terrorem effect resulting from their very existence, and, if
facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against
socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free
speech.

Xxx

Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter neither the
intent of the law to punish socially harmful conduct nor the essence of the whole act as conduct and not free
speech. It is true that the agreements and course of conduct were in most instances brought about through
speaking or writing. But it has never been deemed an abridgement of freedom of speech or press to make a
course of conduct illegal merely because that conduct was, in part, initiated, evidenced, or carried out by
means of language, either spoken, written, or printed. Such an expansive interpretation of the constitutional
guarantees of speech and press would make it practically impossible ever to enforce laws against agreements
in restraint of trade as well as many other agreements and conspiracies deemed injurious to society.

The Rule-Making Power of the Supreme Court

The Supreme Court shall have the following powers:

Xxx

(5) Promulgate rules concerning the protection and enforcement of constitutional rights,
pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar,
and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and
shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and
quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. (Section 5[5],
1987 Constitution)

In In Re: Petition for Recognition of the Exemption of the Government Service Insurance System from
Payment of Legal Fees, The Court ruled that the provision in the Charter of the GSIS, i.e., Section 39 of
Republic Act No. 8291, which exempts it from “all taxes, assessments, fees, charges or duties of all kinds,”
cannot operate to exempt it from the payment of legal fees. This was because, unlike the 1935 and 1973
Constitutions, which empowered Congress to repeal, alter or supplement the rules of the Supreme Court
concerning pleading, practice and procedure, the 1987 Constitution removed this power from Congress.
Hence, the Supreme Court now has the sole authority to promulgate rules concerning pleading, practice and
36
procedure in all courts. (GSIS v. Heirs of Fernando F. Caballero, G.R. No. 158090, 632 SCRA 5, 14-15, Oct.
4, 2010, 2nd Div. [Peralta])

CONSTITUTIONAL LAW

Police Power

The Power of Eminent Domain

The Constitution expressly provides in Article III, Section 9 that “private property shall not be taken for
public use without just compensation.” The provision is the most important protection of property rights in the
Constitution. This is a restriction on the general power of the government to take property. The constitutional
provision is about ensuring that the government does not confiscate the property of some to give it to others.
In part too, it is about loss spreading. If the government takes away a person’s property to benefit society, the
society should pay. The principal purpose of the guarantee is “to bar the Government from forcing some
people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a
whole.” (City of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005; cited in Mosqueda, et al. v. Pilipino
Banana Growers & Exporters Association, Inc., et al., G.R. No. 189185, August 16, 2016, En Banc
[Bersamin])

The Two (2) Types of “Taking” under the Power of Eminent Domain

There are two different types of taking that can be identified. A “possessory” taking occurs when the
government confiscates or physically occupies property. A “regulatory” taking occurs when the government’s
regulation leaves no reasonable economically viable use of the property. (City of Manila v. Laguio, Jr., G.R.
No. 118127, April 12, 2005)

In Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al. (G.R. No.
189185, August 16, 2016), it was argued that the requirement of maintaining a buffer zone in all agricultural
entities under Section 6 of an ordinance of Davao City prohibiting aerial spraying unduly deprives all
agricultural landowners in that City of the beneficial use of their property amounting to taking without just
compensation. The Supreme Court did not agree. Citing City of Manila v. Laguio, Jr. (G.R. No. 118127, April
12, 2005), it clarified that taking only becomes confiscatory if it substantially divests the owner of the beneficial
use of its property. According to the Court:

The establishment of the buffer zone is required for the purpose of minimizing the effects of
aerial spraying within and near the plantations. Although Section 3(e) of the ordinance requires the
planting of diversified trees within the identified buffer zone, the requirement cannot be construed and
deemed as confiscatoy requiring payment of just compensation. A landowner may only be entitled to
compensation if the taking amounts to a permanent denial of all economically beneficial or productive
uses of the land. The respondents cannot be said to be permanently and completely deprived of their
landholdings because they can still cultivate or make other productive uses of the areas to be identified
as the buffer zones.

THE BILL OF RIGHTS

The Right to Due Process of Law

Section 1 of the Bill of Rights lays down what is known as the “due process clause” of the Constitution.

In order to fall within the aegis of this provision, two conditions must concur, namely, that there is a
deprivation and that such deprivation is done without proper observance of due process. When one speaks of
due process of law, however, a distinction must be made between matters of procedure and matters of
substance. In essence, procedural due process “refers to the method or manner by which the law is enforced,”
37
while substantive due process “requires that the law itself, not merely the procedures by which the law would
be enforced, is fair, reasonable, and just.” (De Leon, Textbook on the Philippine Constitution, 1991, p. 81)
(Corona v. United Harbor Pilots Association of the Phils., 283 SCRA 31, Dec. 12, 1997 [Romero])

The due process clauses in the American and Philippine Constitutions are not only worded in exactly
identical language and terminology, but more importantly, they are alike in what their respective Supreme
Courts have expounded as the spirit with which the provisions are informed and impressed, the elasticity in
their interpretation, their dynamic and resilient character which make them capable of meeting every modern
problem, and their having been designed from earliest time to the present to meet the exigencies of an
undefined and expanding future. The requirements of due process are interpreted in both, the United States
and the Philippines as not denying to the law the capacity for progress and improvement. Toward this effect
and in order to avoid the confines of a legal straitjacket, the courts instead prefer to have the meaning of the
due process clause “generally ascertained by the process of inclusion and exclusion in the course of the
decisions of cases as they arise (Twining v. New Jersey, 211 U.S. 78). Capsulized, it refers to “the
embodiment of the sporting idea of fair play” (Ermita-Malate Hotel and Motel Owner’s Association v. City Mayor
of Manila, 20 SCRA 849 [1967]). It relates to certain immutable principles of justice which inhere in the very
idea of free government (Holden v. Hardy, 169 U.S. 366).

Due process is comprised of two components – substantive due process which requires the intrinsic
validity of the law in interfering with the rights of the person to his life, liberty, or property, and procedural due
process which consists of the two basic rights of notice and hearing, as well as the guarantee of being heard
by an impartial and competent tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-106).

True to the mandate of the due process clause, the basic rights of notice and hearing pervade not only
in criminal and civil proceedings, but in administrative proceedings as well. Non-observance of these rights will
invalidate the proceedings. Individuals are entitled to be notified of any pending case affecting their interests,
and upon notice, they may claim the right to appear therein and present their side and to refute the position of
the opposing parties (Cruz, Philippine Administrative Law, 1996 ed., p. 64). (Secretary of Justice v. Lantion,
322 SCRA 160, 186-188, Jan. 18, 2000, En Banc [Melo])

Instances when Prior Notice or Hearing may be Dispensed with

These twin rights may, however, be considered dispensable in certain instances, such as:

1. In proceedings where there is an urgent need for immediate action, like the summary abatement of
a nuisance per se (Article 704, Civil Code), the preventive suspension of a public servant facing administrative
charges (Section 63, Local Government Code, B.P. Blg. 337), the padlocking of filthy restaurants or theaters
showing obscene movies or like establishments which are immediate threats to public health and decency, and
the cancellation of a passport of a person sought for criminal prosecution;
2. Where there is tentativeness of administrative action, that is, where the respondent is not precluded
from enjoying the right to notice and hearing at a later time without prejudice to the person affected, such as
the summary distraint and levy of the property of a delinquent taxpayer, and the replacement of a temporary
appointee; and
3. Where the twin rights have previously been offered but the right to exercise them had not been
claimed. (Secretary of Justice v. Lantion, 322 SCRA 160, 186-188, Jan. 18, 2000, En Banc [Melo])

The Void-for-vagueness Doctrine

The law should be declared void as it is vague, i.e., it lacks comprehensible standards so that men of
ordinary intelligence will probably have to guess as to its meaning and differ in its application.

Such vague law is repugnant to the Constitution in two (2) respects: one, it violates due process as it
fails to afford persons fair notice of the conduct to avoid and; second, it gives law enforcers unbridled discretion
in carrying out provisions and, therefore, in effect, it becomes an arbitrary flexing of the government’s muscle.

38
 However, for this to be validly invoked, the act or law must be utterly vague on its face that it cannot be
clarified either by a saving clause or by statutory construction.

Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al., G.R. No. 189185,
August 16, 2016, En Banc (Bersamin)

An Ordinance enacted by the City of Davao prohibiting aerial spraying in all agricultural entities in that
City and requiring affected parties to shift to other modes of pesticide application within a three-month period
under pain of penalty was declared unconstitutional as it violates due process for being oppressive.

Held:

The impossibility of carrying out a shift to another mode of pesticide application within three
months can readily be appreciated given the vast area of the affected plantations and the
corresponding resources required therefor. X x x

Xxx

The required civil works for the conversion to truck-mounted boom spraying alone will consume
considerable time and financial resources given the topography and geographical features of the
plantations. As such, the completion could not be completed within the short timeframe of three
months. Requiring the respondents and other affected individuals to comply with the consequences of
the ban within the three-month period under pain of penalty like fine, imprisonment and even
cancellation of business permits would definitely be oppressive as to constitute abuse of police power.”

Extradition and Due Process

Secretary of Justice v. Honorable Ralph Lantion, October 17, 2000 Resolution of the Motion for
Reconsideration

During the initial evaluation stage at the Department of Justice of an extradition proceeding, an
extraditee is not yet entitled to the documents he was requesting (like copy of request for his extradition from
the requesting government, and supporting documents and evidences) so that he may be able to prepare for
his defense. That is because an extradition is “sui generis;” it is not similar to a criminal proceeding which will
call into operation all of the rights of an accused as guaranteed by the Bill of Rights.

He may be given copies of those documents once the petition for his extradition is filed in the RTC.
This is but a “soft restraint” on his right to due process at that stage. There is no denial of due process for as
long as fundamental fairness is assured a party.

The Right to the Equal Protection of the Laws

The constitutional right to equal protection requires that all persons or things similarly situated should
be treated alike, both as to rights conferred and responsibilities imposed. It requires public bodies and
institutions to treat similarly situated individuals in a similar manner. The guarantee of equal protection
secures every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether
occasioned by the express terms of a statute or by its improper execution through the State’s duly constituted
authorities. The concept of equal justice under the law demands that the State governs impartially and not to
draw distinctions between individuals solely on differences that are irrelevant to the legitimate governmental
objective.

Equal protection neither requires universal application of laws to all persons or things without
distinction, nor intends to prohibit legislation by limiting the object to which it is directed or by the territory in
which it is to operate. The guaranty of equal protection envisions equality among equals determined according

39
to a valid classification. If the groupings are characterized by substantial distinctions that make real
differences, one class may be treated and regulated differently from another. In other words, a valid
classification must be: (1) based on substantial distinctions; (2) germane to the purposes of the law; (3) not
limited to existing conditions only; and (4) equally applicable to all members of the class. (Mosqueda, et al. v.
Pilipino Banana Growers & Exporters Association, Inc., et al., G.R. No. 189185, August 16, 2016, En
Banc [Bersamin])

The Three (3) Levels of Scrutiny to Determine the Propriety of the Classification under the Equal
Protection Clause

The reasonability of a distinction and sufficiency of the justification given by the Government for its
conduct is gauged by using the means-end test. This test requires analysis of: (1) the interests of the public
that generally requires its exercise, as distinguished from those of a particular class; and (2) the means
employed that are reasonably necessary for the accomplishment of the purpose and are not unduly oppressive
upon individuals. To determine the propriety of the classification, courts resort to three levels of scrutiny, viz:
the rational scrutiny, intermediate scrutiny and strict scrutiny.

The rational basis scrutiny (also known as the rational relation test or rational basis test) demands that
the classification reasonably relate to the legislative purpose. The rational basis test often applies in cases
involving economics or social welfare, or to any other case not involving a suspect class.

When the classification puts a quasi-suspect class at a disadvantage, it will be treated under
intermediate or heightened review. Classifications based on gender or illegitimacy receives intermediate
scrutiny. To survive intermediate scrutiny, the law must not only further an important governmental interest
and be substantially related to that interest, but the justification for the classification must be genuine and must
not depend on broad generalizations.

The strict scrutiny review applies when a legislative classification impermissibly interferes with the
exercise of a fundamental right or operates to the peculiar class disadvantage of a suspect class. The
Government carries the burden to prove that the classification is necessary to achieve a compelling state
interest, and that it is the least restrictive means to protect such interest. (Mosqueda, et al. v. Pilipino Banana
Growers & Exporters Association, Inc., et al., G.R. No. 189185, August 16, 2016, En Banc [Bersamin])

In Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al., (G.R. No.
189185, August 16, 2016, En Banc [Bersamin]), the Court, applying the rational basis test, ruled that the
ordinance of Davao City prohibiting aerial spraying in all agricultural entities therein as the practice produces
pesticide drift causing inconvenience and harm to the residents and degrades the environment, violates the
equal protection clause, hence, should be declared unconstitutional. The Court Held:

The occurrence of pesticide drift is not limited to aerial spraying but results from the conduct of
any mode of pesticide application. Even manual spraying or truck-mounted boom spraying produces
drift that may bring about the same inconvenience, discomfort and alleged health risks to the
community and to the environment. A ban against aerial spraying does not weed out the harm that the
ordinance seeks to achieve. In the process, the ordinance suffers from being “underinclusive” because
the classification does not include all individuals tainted with the same mischief that the law seeks to
eliminate. A classification that is drastically underinclusive with respect to the purpose or end appears
as an irrational means to the legislative end because it poorly serves the intended purpose of the law.

Xxx

Aside from its being underinclusive, the assailed ordinance also tends to be “overinclusive”
because its impending implementation will affect groups that have no relation to the accomplishment of
the legislative purpose. Its implementation will unnecessarily impose a burden on a wider range of
individuals than those included in the intended class based on the purpose of the law.

40
 It can be noted that the imposition of the ban is too broad because the ordinance applies
irrespective of the substance to be aerially applied and irrespective of the agricultural activity to be
conducted. The respondents admit that they aerially treat their plantations not only with pesticides but
also vitamins and other substances. The imposition of the ban against aerial spraying of substances
other than fungicides and regardless of the agricultural activity being performed becomes unreasonable
inasmuch as it patently bears no relation to the purported inconvenience, discomfort, health risk and
environmental danger which the ordinance seeks to address. The burden now will become more
onerous to various entities, including the respondents and even others with no connection whatsoever
to the intended purpose of the ordinance.”

Xxx

The overinclusiveness of Ordinance No. 0309-07 may also be traced to its Section 6 by virtue of
its requirement for the maintenance of the 30-meter buffer zone. This requirement applies regardless
of the area of the agricultural landholding, geographical location, topography, crops grown and other
distinguishing characteristics that ideally should bear a reasonable relation to the evil sought to be
avoided. As earlier stated, only large banana plantations could rely on aerial technology because of the
financial capital required therefor.

The establishment and maintenance of the buffer zone will become more burdensome to the
small landholders because: (1) they have to reserve the 30-meter belt surrounding their property; (2)
that will have to be identified through GPS; (3) the metes and bounds of the buffer zone will have to be
plotted in a survey plan for submission to the local government unit; and (4) will be limited as to the
crops that may be cultivated therein based on the mandate that the zone shall be devoted to
“diversified trees” taller than what are being grown therein. The arbitrariness of Section 6 all the more
becomes evident when the land is presently devoted to the cultivation of root crops and vegetables,
and trees or plants slightly taller than the root crops and vegetables are then to be planted. It is
seriously to be doubted whether such circumstance will prevent the occurrence of the drift to the nearby
residential areas.

Section 6 also subjects to the 30-meter buffer zone requirement agricultural entities engaging in
organic farming, and do not contribute to the occurrence of pesticide drift. The classification
indisputably becomes arbitrary and whimsical.

A substantially overinclusive or underinclusive classification tends to undercut the governmental

claim that the classification serves legitimate political ends. Where overinclusiveness is the problem,
the vice is that the law has a greater discriminatory or burdensome effect than necessary. In this light,
we strike down Section 5 and Section 6 of Ordinance 0309-07 for carrying an invidious classification,
and for thereby violating the Equal Protection Clause.

Xxx

Evidently, the ordinance discriminates against large farmholdings that are the only ideal venues
for the investment of machineries and equipment capable of aerial spraying. It effectively denies the
affected individuals the technology aimed at efficient and cost-effective operations and cultivation not
only of banana but of other crops as well. The prohibition against aerial spraying will seriously hamper
the operations of the banana plantations that depend on aerial technology to arrest the spread of the
Black Sigatoka disease and other menaces that threaten their production and harvest. X x x the effect
of the ban will not be limited to Davao City in view of the significant contribution of banana export
trading to the country’s economy.

The discriminatory character of the ordinance makes it oppressive and unreasonable in light of
the existence and availability of more permissible and practical alternatives that will not overburden the
respondents and those dependent on their operations as well as those who stand to be affected by the
ordinance. X x x

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 The Right against Unreasonable Searches and Seizures

Abdula v. Guiani

In a criminal proceeding, there are two (2) determinations of probable cause, i.e., one is made by the
prosecutor during preliminary investigation for the purpose of filing the criminal information in court; and the
other is made by the judge for the purpose of issuing a warrant of arrest, or of a search warrant.

The determination of probable cause for the purpose of filing the criminal information in court is an
executive function. It is a function that belongs to the prosecutor, an officer under the Department of Justice, a
department under the executive branch. On the other hand, the determination of probable cause for the
purpose of issuing a warrant of arrest, or even that of a search warrant, is a judicial function, because under
Section 2 of the Bill of Rights of the Constitution, only a judge may issue a warrant of arrest or of a search
warrant. For this reason, the judge is not bound by the determination of probable cause by the prosecutor. In
fact, he should not rely solely on the finding of probable cause by the prosecutor because he is mandated by
the Constitution to determine probable cause personally. He cannot abdicate the performance of that function
in favor of the prosecutor if he wanted to remain faithful to the Constitution.

Government of the USA v. Judge Purganan

Prior notice or hearing is not required before a judge issues a warrant of arrest of an extraditee once
the petition for extradition is filed in court on two (2) basis, i.e., statutory (Sec. 6, P.D. No. 1069); and
constitutional (Sec. 2, Art. III of the Bill of Rights).

On statutory basis

Section 6, P.D. No. 1069 (Extradition Law) provides that the moment the petition for extradition is filed
in the RTC, the judge shall cause the immediate issuance of a warrant of arrest. Hearing entails sending of
notices to opposing parties, and receiving facts and arguments from them. Arrest subsequent to a hearing can
no longer be considered “immediate.” The law could not have intended the use of the word “immediate” a
superfluity.

On constitutional basis

Even Section 2, Article III of the Bill of Rights does not require notice or hearing before a judge issues a
warrant of arrest. On the contrary, what the Constitution provides is “after examination under oath or
affirmation of the complainant (not of the accused) and the witnesses he may produce.”

Search Incidental to a Lawful Arrest (Section 13, Rule 126, Rules of Court)

This is the most common among the instances of valid warrantless searches. The object of this kind of
warrantless search is to obtain object or effect of a crime, like the stolen wallet or the knife used in hold-up.

The three (3) important features of this kind of warrantless search are:

1. In this kind if warrantless search, the arrest always precedes the search; the process cannot be
reversed;
2. The precedent arrest must always be lawful because, if the precedent arrest is unlawful, the
subsequent search, although it may have yielded positive results, may never validate the unlawful
arrest that preceded it; and
3. The search must be limited or confined only to the immediate vicinity of the place of the arrest. It
may not be extended beyond that.

Valmonte v. De Villa

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 For searches at checkpoints to be valid, the following must be observed:

1. The checkpoint must be pre-announced;

2. It must be stationary; and
3. The search at checkpoint must be limited to visual search only. An intrusive search is not allowed

Social Justice Society v. Dangerous Drugs Board

The Mandatory Drug Testing under R.A. No. 9165 (The Comprehensive Dangerous Drugs Act) does
not constitute unreasonable search prohibited by the Constitution. It falls under the category of an
administrative search. In administrative searches, the strict probable cause requirement is not applied.

People v. Leila Johnson

When one is at the nation’s airport and wanted to travel by air, he has no reasonable expectation of
privacy and can be subject to warrantless search. This is in view of increased concern over airplane hijacking
and terrorism.

In the later case of People v. Susan Canton, the SC held that this is now another instance of valid
warrantless search – warrantless searches at airports.

People v. Doria

The requisites for the “plain view” doctrine to be validly invoked are:

1. The law enforcement officer must have a valid justification for an intrusion, or is in a position where
he can view a particular area;
2. The discovery of the evidence in plain view must be inadvertent; and
3. It is immediately apparent to him that the thing he sees is object of a crime, contraband, or subject
to seizure.

It is clear that if the object is inside a closed container, “plain view” may not be invoked. However, even
if it inside a closed container but if due to the configuration of the container, or due to its transparency, it can
still be seen from the outside what is inside, “plain view” may still be invoked.

The Right to Privacy

Is there a constitutional right to privacy?

The essence of privacy is the “right to be let alone.” In the 1965 case of Griswold v. Connecticut (381
U.S. 479, 14 L. ed. 2D 510 [1965]), the United States Supreme Court gave more substance to the right of
privacy when it ruled that the right has a constitutional foundation. It held that there is a right of privacy which
can be found within the penumbras of the First, Third, Fourth, Fifth and Ninth Amendments x x x. In the 1968
case of Morfe v. Mutuc (22 SCRA 424, 444-445), we adopted the Griswold ruling that there is a constitutional
right to privacy x x x.

Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and enshrined in
several provisions of our Constitution. (Morfe v. Mutuc, 22 SCRA 424, 444 [1968]; Cortes, The Constitutional
Foundations of Privacy, p. 18 [1970]). It is expressly recognized in Section 3(1) of the Bill of Rights x x x.
Other facets of the right to privacy are protected in various provisions of the Bill of Rights (viz: Secs. 1, 2, 6, 8,
and 17. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno])

What are the zones of privacy recognized and protected in our laws?

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 The Civil Code provides that “[e]very person shall respect the dignity, personality, privacy and peace of
mind of his neighbors and other persons” and punishes as actionable torts several acts by a person of
meddling and prying into the privacy of another. It also holds a public officer or employee or any private
individual liable for damages for any violation of the rights and liberties of another person, and recognizes the
privacy of letters and other private communications. The Revised Penal Code makes a crime the violation of
secrets by an officer, the revelation of trade and industrial secrets, and trespass to dwelling. Invasion of
privacy is an offense in special laws like the Anti-Wiretapping Law (R.A. 4200), the Secrecy of Bank Deposits
(R.A. 1405) and the Intellectual Property Code (R.A. 8293). The Rules of Court on privileged communication
likewise recognize the privacy of certain information (Section 24, Rule 130[c], Revised Rules on Evidence).
(Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno])
Jose Jesus M. Disini, Jr., et al. v. The Secretary of Justice, et al., G.R. No,. 203335, Feb. 11, 2014, En
Banc (Abad)

The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a facet
of the right protected by the guarantee against unreasonable searches and seizures. But the Court
acknowledged its existence as early as 1968 in Morfe v. Mutuc, it ruled that the right to privacy exists
independently of its identification with liberty; it is in itself fully deserving of constitutional protection.

Relevant to any discussion of the right to privacy is the concept known as the “Zones of Privacy.” The
Court explained in “In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator
Gordon” the relevance of these zones to the right to privacy:

Zones of privacy are recognized and protected in our laws. Within these zones, any form of
intrusion is impermissible unless excused by law and in accordance with customary legal process. The
meticulous regard we accord to these zones arises not only from our conviction that the right to privacy
is a “constitutional right” and “the right most valued by civilized men,” but also from our adherence to
the Universal Declaration of Human Rights which mandates that, “no one shall be subjected to arbitrary
interference with his privacy” and “everyone has the right to the protection of the law against such
interference or attacks.”

Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable
searches and seizures, which is the basis of the right to be let alone, and (b) the right to privacy of
communication and correspondence.

In assessing the challenge that the State has impermissibly intruded into these zones of privacy, a
court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether
that expectation has been violated by unreasonable government intrusion.

Freedom of Expression

Content-based restrictions on free speech, and content-neutral regulations

Content-based restrictions are imposed because of the content of the speech and are, therefore,
subject to the clear-and-present danger test. For example, a rule such as that involved in Sanidad v. Comelec,
prohibiting columnists, commentators, and announcers from campaigning either for or against an issue in a
plebiscite must have compelling reason to support it, or it will not pass muster under strict scrutiny. These
restrictions are censorial and therefore they bear a heavy presumption of constitutional invalidity. In addition,
they will be tested for possible overbreadth and vagueness.

Content-neutral restrictions, on the other hand, like Sec. 11(b) of R.A. No. 6646, which prohibits the
sale or donation of print space and air time to political candidates during the campaign period, are not
concerned with the content of the speech. These regulations need only a substantial governmental interest to
support them. A deferential standard of review will suffice to test their validity. The clear-and-present danger

44
rule is inappropriate as a test for determining the constitutional validity of laws, like Sec. 11(b) of R.A. No.
6646, which are not concerned with the content of political ads but only with their incidents. To apply the clear-
and-present danger test to such regulatory measures would be like using a sledgehammer to drive a nail when
a regular hammer is all that is needed.

The test for this difference in the level of justification for the restriction of speech is that content-based
restrictions distort public debate, have improper motivation, and are usually imposed because of fear of how
people will react to a particular speech. No such reasons underlie content-neutral regulations, like regulation
of time, place and manner of holding public assemblies under B.P. Blg. 880, the Public Assembly Act of 1985.
(Osmena v. COMELEC, 288 SCRA 447, March 31, 1998 [Mendoza])

What is the most influential test for distinguishing content-based from content-neutral regulations?

The United States Supreme Court held in United States v. O’ Brien:

[A] a governmental regulation is sufficiently justified (1) if it is within the constitutional power of the
government; (2) if it furthers an important or substantial governmental interest; (3) if the governmental
interest is unrelated to the suppression of free expression; and (4) if the incidental restriction on alleged
First Amendment freedoms (of speech, expression and press) is no greater than is essential to the
furtherance of that interest (391 U.S. 367, 20 L. Ed. 2df 692, 680 [1968] [bracketed numbers added])

This is so far the most influential test for distinguishing content-based from content-neutral regulations
and is said to have “become canonical in the review of such laws.” (G. Gunther & K. Sullivan, Constitutional
Law 1217 [13th ed. 1997]). It is noteworthy that the O’ Brien test has been applied by this Court in at least two
cases (Adiong v. Comelec, 207 SCRA 712 [1992]; Osmena v. Comelec, supra.).

Under this test, even if a law furthers an important or substantial governmental interest, it should be
invalidated if such governmental interest is “not unrelated to the suppression of free expression.” Moreover,
even if the purpose is unrelated to the suppression of free speech, the law should nevertheless be invalidated
if the restriction on freedom of expression is greater than is necessary to achieve the governmental purpose in
question. (Social Weather Stations, Inc. v. Comelec, G.R. No. 147571, May 5, 2001, En Banc [Mendoza])
Chavez v. Secretary Gonzales

The Diocese of Bacolod, Represented by the Most Rev. Bishop Vicente M. Navarra, et al. v. COMELEC,
GR No. 205728, January 21, 2015, En Banc (Leonen)

This case defines the extent that our people may shape the debates during elections. It is significant
and of first impression. We are asked to decide whether the Commission on Elections (COMELEC) has the
competence to limit expressions made by the citizens – who are not candidates – during elections.

Before us is a special civil action for certiorari and prohibition under Rule 65 of the Rules of Court
seeking to nullify COMELEC’s Notice to Remove Campaign Materials.

SUBSTANTIVE ISSUES

A. COMELEC had no legal basis to regulate expressions made by private citizens.

Respondents (COMELEC officials) cite the Constitution, laws, and jurisprudence to support their
position that they had the power to regulate the tarpaulin. However, all of these provisions pertain to
candidates and political parties. Petitioners are not candidates. Neither do they belong to any political party.
COMELEC does not have the authority to regulate the enjoyment of the preferred right to freedom of
expression exercised by a non-candidate in this case.

First, respondents cite Article IX-C, Section 4 of the Constitution x x x.

45
 X x x We held that the “evil sought to be prevented by this provision is the possibility that a franchise
holder may favor or give any undue advantage to a candidate in terms of advertising space or radio or
television time.” (Sanidad v. COMELEC, 260 Phil. 565 [1990]) This Court found that “[m]edia practitioners
exercising their freedom of expression during plebiscite periods are neither the franchise holders nor the
candidates[,]” thus, their right to expression during this period may not be regulated by COMELEC.

Similar to the media, petitioners in the case at bar are neither franchise holders nor candidates.

Respondents likewise cite Article IX-C, Section 2(7) of the Constitution x x x.

Based on the enumeration made on acts that may be penalized, it will be inferred that this provision
only affects candidates.

Petitioners assail the “Notice to Remove Campaign Materials” issued by COMELEC. This was followed
by the assailed letter regarding the “election propaganda materials posted on the church vicinity promoting for
or against the candidates and party-list groups . . .” Section 9 of the Fair Election Act (R.A. No. 9006 [2001])
on the posting of campaign materials only mentions “parties” and “candidates” x x x.

Xxx

Respondents considered the tarpaulin as a campaign material in their issuances. The above provisions
regulating the posting of campaign materials only apply to candidates and political parties, and petitioners are
neither of the two.

Section 3 of Republic Act No. 9006 on “Lawful Election Propaganda” also states that these are “allowed
for all registered political parties, national, regional, sectoral parties or organizations participating under the
party-list elections and for all bona fide candidates seeking national and local elective positions subject to the
limitation on authorized expenses of candidates and political parties. . .” Section 6 of COMELEC Resolution
No. 9615 provides for a similar wording.

These provisions show that election propaganda refers to matter done by or on behalf of and in
coordination with candidates and political parties. Some level of coordination with the candidates and political
parties for whom the election propaganda are released would ensure that these candidates and political parties
maintain within the authorized expenses limitation.

The tarpaulin was not paid for by any candidate or political party. There was no allegation that
petitioners coordinated with any of the persons named in the tarpaulin regarding its posting. On the other
hand, petitioners posted the tarpaulin as part of their advocacy against the RH Law.

Xxx

In this case, the tarpaulin contains speech on a matter of public concern, that is, a statement of either
appreciation or criticism on votes made in the passing of the RH law. Thus, petitioners invoke their right to
freedom of expression.

B. The violation of the constitutional right to freedom of speech and expression

No law. . .

While it is true that the present petition assails not a law but an opinion by the COMELEC Law
Department, this Court has applied Article III, Section 4 of the Constitution even to governmental acts.

. . . shall be passed abridging. . .

46
 All regulations will have a impact directly or indirectly on expression. The prohibition against the
abridgment of speech should not mean an absolute prohibition against regulation. The primary and incidental
burden on speech must be weighed against a compelling state interest clearly allowed in the Constitution. The
test depends on the relevant theory of speech implicit in the kind of society framed by our Constitution.

Our Constitution has also explicitly included the freedom of expression, separate and in addition to the
freedom of speech and of the press provided in the US Constitution. The word “expression” was added in the
1987 Constitution x x x for having a wider scope x x x.

Speech may be said to be inextricably linked to freedom itself as “[t]he right to think is the beginning of
freedom, and speech must be protected from the government because speech is the beginning of thought.”
(Freedom of Speech and Expression, 116 Harv. L. Rev. 272, 277 [2002], quoting Justice Kennedy in Ashcroft
v. Free Speech Coalition, 122 S. Ct. 1389, 1403 [2002])

Xxx

Communication is an essential outcome of protected speech.

Communication exists when “(1) a speaker, seeking to signal others, uses conventional actions
because he or she reasonably believes that such actions will be taken by the audience in the manner intended;
and (2) the audience so takes the actions.” (Heidi M. Hurd, Sovereignty in Silence, 99 Yale L. J. 945, 954
[1990]) “[I]n communicative action[,] the hearer may respond to the claims by x x x either accepting the speech
act’s claims or opposing them with criticism or requests for justification.” (Hugh Baxter, System and Lifeworld in
Haberma’s Theory of Law, 23 Cardozo L. Rev. 473, 499 [2002])

Speech is not limited to vocal communication. “[C]onduct is treated as a form of speech sometimes
referred to as ‘symbolic speech[,]’ (Joshua Waldman, Symbolic Speech and Social Meaning, 97 Colum. L.
Rev. 1844, 1847 [1997]) such that “’when ‘speech’ and ‘nonspeech’ elements are combined in the same
course of conduct,’ the ‘communicative element’ of the conduct may be ‘sufficient to bring into play the [right to
freedom of expression].’” (Id., citing US v. O’Brien, 391 U.S. 367, 376 [1968])

The right to freedom of expression, thus, applies to the entire continuum of speech from utterances
made to conduct enacted, and even to inaction itself as a symbolic manner of communication.

Even before freedom “of expression” was included in Article III, Section 4 of the present Constitution,
this court has applied its precedent version to expressions other than verbal utterances.

Freedom of expression and equality

The possibility of abuse

The guarantee of freedom of expression to individuals without any relationship to any political candidate
should not be held hostage by the possibility of abuse by those seeking to be elected. X x x. However,
labeling all expressions of private parties that tend to have an effect on the debate in the elections as election
paraphernalia would be too broad a remedy that can stifle genuine speech. Instead, to address this evil, better
and more effective enforcement will be the least restrictive means to the fundamental freedom.

Xxx

COMELEC”s 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 speech of the electorate as
it strives to participate in the electoral exercise.

47
 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

Some may have thought that there should be more room to consider being more broad-minded and
non-judgmental. Some may have expected that the authors would give more space to practice forgiveness
and humility.

But, the Bill of Rights enumerated in our Constitution is an enumeration of our fundamental liberties. It
is not a detailed code that prescribes good conduct. It provides space for all to be guided by their conscience,
not only in the act that they do to others but also in judgment of the acts of others.

Freedom for the thought we can disagree with can be wielded not only by those in the minority. This
can often be expressed by dominant institutions, even religious ones. That they made their point dramatically
and in a large way does not necessarily mean that their statements are true, or that they have basis, or that
they have been expressed in good taste.

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. It may be motivated by the interpretation of petitioners of their ecclesiastical duty, but
their parishioner’s actions will have very real secular consequences.

Certainly, provocative messages do matter for the elections.

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 hopeful of a quality of democracy that we should all deserve. It is protected as
a fundamental and primordial right by our Constitution. The expression in the medium chosen by petitioners
deserves our protection.

Freedom of the Press

Four (4) Aspects of Press Freedom

Philippine jurisprudence, even as early as the period under the 1935 Constitution, has recognized four
aspects of freedom of the press. These are (1) freedom from prior restraint; (2) freedom from punishment
subsequent to publication; (3) freedom of access to information; and (4) freedom of circulation. (Francisco
Chavez v. Raul M. Gonzales, et. al., G.R. No. 168338, 15 February 2008, En Banc [Puno, CJ])

Freedom of Assembly

The first point to mark is that the right to peaceably assemble and petition for redress of grievances is,
together with freedom of speech, of expression, and of the press, a right that enjoys primacy in the realm of
constitutional protection. For these rights constitute the very basis of a functional democratic polity, without
which all the other rights would be meaningless and unprotected. (BAYAN, et al. v. Ermita, et al., G.R. No.
169838, April 25, 2006, En Banc [Azcuna])

Batas Pambansa Blg. 880 – The Public Assembly Act of 1985

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Meaning of Public Assembly

“Public assembly” means any rally, demonstration, march, parade, procession or any other form of
mass or concerted action held in a public place for the purpose of presenting a lawful cause, or expressing an
opinion to the general public on any particular issue; or protesting or influencing any state of affairs whether
political, economic or social; or petitioning the government for redress of grievances.

The processions, rallies, parades, demonstrations, public meetings and assemblages for religious
purposes shall be governed by local ordinances; Provided, however, That the declaration of policy as provided
in Section 2 of this Act shall be faithfully observed.

The definition herein contained shall not include picketing and other concerted action in strike areas by
workers and employees resulting from a labor dispute as defined by the Labor Code, its implementing rules
and regulations, and by the Batas Pambansa Bilang 227. (Section 3[a], B.P. Blg. 880)

Permit when required and when not required

A written permit shall be required for any person or persons to organize and hold a public assembly in a
public place. However, no permit shall be required if the public assembly shall be done or made in a freedom
park duly established by law or ordinance or in a private property, in which case only the consent of the owner
or the one entitled to its legal possession is required, or in the campus of a government–owned and operated
educational institution which shall be subject to the rules and regulations of said educational institution.
Political meetings or rallies held during any election campaign period as provided for by law are not covered by
this Act. (Section 4, B.P. Blg. 880)

Freedom Parks

Every city and municipality in the country shall within six months after the effectivity of this Act establish
or designate at least one suitable “freedom park” or mall in their respective jurisdictions which, as far as
practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at
any time without the need of any prior permit. (Section 5, B.P. Blg. 880)

Action to be taken on the application (Section 6, B.P. Blg. 880)

(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless
there is clear and convincing evidence that the public assembly will create a clear and present
danger to public order, public safety, public convenience, public morals or public health.

(b) The mayor or any official acting in his behalf shall act on the application within two (2) working days
from the date the application was filed, failing which, the permit shall be deemed granted. Should
for any reason the mayor or any official acting in his behalf refuse to accept the application for a
permit, said application shall be posted by the applicant on the premises of the office of the mayor
and shall be deemed to have been filed.

(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting
the denial or modification of the permit, he shall immediately inform the applicant who must be
heard on the matter.

(d) The action on the permit shall be in writing and served on the applicant within twenty-four hours.

(e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in
his permit, the applicant may contest the decision in an appropriate court of law.

Integrated Bar of the Philippines v. Hon. Mayor Jose “Lito” Atienza, G.R. No. 175241, 24 February 2010,
1st Div. (Carpio Morales)

49
 The Integrated Bar of the Philippines (IBP) applied for a permit to rally at Mendiola Bridge. However,
then Manila Mayor Jose “Lito” Atienza issued a permit to rally at Plaza Miranda instead.

Issue: Whether or not the appellate court erred in holding that the modification of the venue in IBP’s
rally permit does not constitute grave abuse of discretion.

Held: Section 6(c) of the Public Assembly Act (BP 880) provides that “If the mayor is of the view that
there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit, he
shall immediately inform the applicant who must be heard on the matter.”

In modifying the permit outright, Atienza gravely abused his discretion when he did not immediately
inform the IBP who should have been heard first on the matter of his perceived imminent and grave danger of
a substantive evil that may warrant the changing of the venue. Atienza failed to indicate how he had arrived at
modifying the terms of the permit against the standard of a clear and present danger test which x x x is an
indispensable condition to such modification. Nothing in the issued permit adverts to an imminent and grave
danger of a substantive evil, which “blank” denial or modification would, when granted imprimatur as the
appellate court would have it, render illusory any judicial scrutiny thereof.

It is true that the licensing official is not devoid of discretion in determining whether or not a permit
would be granted. It is not, however, unfettered discretion. While prudence requires that there be a realistic
appraisal not of what may possibly occur but of what may probably occur, given all the relevant circumstances,
still the assumption – especially so where the assembly is scheduled for a specific public place – is that the
permit must be for the assembly being held there. It smacks of whim and caprice for Atienza to impose a
change of venue for an assembly that was slated for a specific public place. It is thus reversible error for the
appellate court not to have found such grave abuse of discretion and, under specific statutory provision, not to
have modified the permit “in terms satisfactory to the applicant.”

Meaning of Maximum Tolerance

“Maximum tolerance” means the highest degree of restraint that the military, police and other peace
keeping authorities shall observe during a public assembly or in the dispersal of the same. (Section 3[c], B.P.
Blg. 880)

B.P. No. 880 is merely a “content-neutral” regulation

It is very clear that B.P. No. 880 is not an absolute ban of public assemblies but a restriction that simply
regulates the time, place and manner of the assemblies. This was adverted to in Osmena v. Comelec (G.R.
No. 132231, March 31, 1998, 288 SCRA 447), where the Court referred to it as a “content-neutral” regulation
of the time, place, and manner of holding public assemblies (Ibid, p. 478).

A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public
assemblies (except picketing and other concerted action in strike areas by workers and employees resulting
from a labor dispute, which are governed by the Labor Code and other labor laws, political meeting or rallies
held during election campaign period, which are governed by the Election Code and other election related
laws, and public assemblies in the campus of a government-owned and operated educational institution, which
shall be subject to the rules and regulations of said educational institution [Sec. 3(a) and Sec. 4 of B.P. No.
880]) that would use public places. The reference to “lawful cause” does not make it content-based because
assemblies really have to be for lawful causes, otherwise they would not be “peaceable” and entitled to
protection. Neither are the words “opinion,” “protesting” and “influencing” in the definition of public assembly
content-based, since they can refer to any subject. The words “petitioning the government for redress of
grievances” come from the wording of the Constitution, so its use cannot be avoided. Finally, maximum
tolerance is for the protection and benefits of all rallyists and is independent of the content of the expressions
in the rally.

50
 Furthermore, the permit can only be denied on the ground of clear and present danger to public order,
public safety, public convenience, public morals or public health. This is a recognized exception to the
exercise of the right even under the Universal Declaration of Human Rights and the International Covenant on
Civil and Political Rights x x x. (BAYAN, et al. v. Ermita, et al., G.R. No. 169838, April 25, 2006, En Banc
[Azcuna])

The Calibrated Pre-emptive Response (CPR) Policy adopted by the Arroyo Administration in dealing
with public assemblies

The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General has conceded
that the use of the term should now be discontinued, since it does not mean anything other than the maximum
tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit of respondent Executive Secretary
Eduardo Ermita, submitted by the Solicitor General.

At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880, CPR
serves no valid purpose if it means the same thing as maximum tolerance and is illegal if it means something
else. Accordingly, what is to be followed is and should be that mandated by the law itself, namely, maximum
tolerance.

In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people,
especially freedom of expression and freedom of assembly.

For this reason, the so-called calibrated preemptive response policy has no place in our legal firmament
and must be struck down as a darkness that shrouds freedom. It merely confuses our people and is used by
some police agents to justify abuses. On the other hand, B.P. No. 880 cannot be condemned as
unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates the use of public places as to
the time, place and manner of assemblies. Far from being insidious, “maximum tolerance” is for the benefit of
rallyists, not the government., The delegation to the mayors of the power to issue rally “permits” is valid
because it is subject to the constitutionally-sound “clear and present danger” standard. (BAYAN, et al. v.
Ermita, et al., G.R. No. 169838, April 25, 2006, En Banc [Azcuna])

Freedom of Religion

Ang Ladlad-LGBT Party v. Commission on Elections, G.R. No. 190582, 618 SCRA 32, April 8, 2010, En
Banc (Del Castillo)

The decision of the COMELEC not to allow the Ang Ladlad-LGBT Party to participate in party-list
elections because its members are “immoral,” citing verses from the Bible and the Koran, was ruled by the SC
to be tainted with grave abuse of discretion and, therefore, nullified, as it violated the non-establishment clause
of freedom of religion. In effect, the COMELEC used religious standard in its decision by using verses from the
Bible and the Koran. The COMELEC, as a government agency, is not supposed to be guided by religious
standards in its decisions and actions.

Held:

“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.

“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

51
 mere conformity to religious doctrine. Otherwise stated, government must act for secular purposes and
in ways that have primarily secular effects. X x x.”

What is a purely ecclesiastical affair to which the State can not meddle following the Separation of
Church and State Doctrine?

An ecclesiastical affair is “one that concerns doctrine, creed, or form of worship of the church, or the
adoption and enforcement within a religious association of needful laws and regulations for the government of
the membership, and the power of excluding from such associations those deemed not worthy of
membership.” Based on this definition, an ecclesiastical affair involves the relationship between the church
and its members and relate to matters of faith, religious doctrines, worship and governance of the
congregation. To be concrete, examples of this so-called ecclesiastical affairs to which the State cannot
meddle are proceedings for excommunication, ordinations of religious ministers, administration of sacraments
and other activities with attached religious significance. (Pastor Dionisio V. Austria v. NLRC, G.R. No.
124382, Aug. 16, 1999, 1st Div. [Kapunan])

Iglesia Ni Cristo v. Court of Appeals

Under the non-establishment clause of freedom of religion, when it comes to religious differences, the
State enjoys no banquet of options – neutrality alone is its fixed and immovable stance. It is not its task to
defend one religion against an attack by another religion. After all, the remedy against bad theology is better
theology. Let them duel in the market place of ideas. The marketplace of ideas demands that speech should
be met by more speech, for it is the spark of opposite speech, the heat of colliding ideas, that can fan the
embers of truth.

James M. Imbong, et al. v. Hon. Paquito N. Ochoa, Jr., et al., GR No. 204819, April 8, 2014, En Banc
(Mendoza)

Wherefore, THE PETITIONS ARE partially granted. Accordingly, the Court declares R.A. No. 10354 as
NOT UNCONSTITUTIONAL, except with respect to the following provisions which are declared
UNCONSTITUTIONAL:

1) Section 7 and the corresponding provision in RH-IRR insofar as they: a) require private health
facilities And non-maternity specialty hospitals and hospitals owned and operated by a religious
group to refer patients, not in an emergency or life-threatening case, as defined under Republic Act
no. 8344, to another health facility which is conveniently accessible; and b) allow minor-parents or
minors who have suffered a miscarriage access to modern methods of family planning without
written consent from their parents or guardian/s;

2) Section 23(a)(1) and the corresponding provision in the RH-IRR, particularly Section 5.24 thereof,
insofar as they punish any healthcare service provider who fails or refuses to disseminate
information regarding programs and services on reproductive health regardless of his or her
religious beliefs;

3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as they allow a married
individual, not in an emergency or life-threatening case, as defined under Republic Act No. 8344, to
undergo reproductive health procedures without the consent of the spouse;

4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as they limit the
requirement of parental consent only to elective surgical procedures;

5) Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly Section 5.24 thereof,
insofar as they punish any healthcare service provider who fails and/or refuses to refer a patient not
in an emergency or life-threatening case, as defined under Republic Act No. 8344, to another health
care service provider within the same facility or one which is conveniently accessible regardless of
his or her religious beliefs;

6) Section 23(b) and the corresponding provision in the RH-IRR, particularly Section 5.24 thereof,
insofar as they punish any public officer who refuses to support reproductive health programs or
52
 shall do any act that hinders the full implementation of a reproductive health program, regardless of
his or her religious beliefs;

7) Section 17 and the corresponding provision in the RH-IRR regarding the rendering of pro bono
reproductive health service in so far as they affect the conscientious objector in securing Philhealth
accreditation; and

8) Section 3.01(a) and Section 3.01(j) of the RH-IRR, which added the qualifier “primarily” in defining
abortifacients and contraceptives, as they are ultra vires and, therefore, null and void for
contravening Section 4(a) of the RH Law and violating Section 12, Article II of the Constitution.

Liberty of Abode and Freedom of Movement

The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in
the interest of national security, public safety, or public health, as may be provided by law. (Sec. 6, Art.
III, 1987 Constitution)

Limitation on the Right to Travel

The right to travel is guaranteed by the Constitution. However, the exercise of such right is not
absolute. Section 6, Article III of the 1987 Constitution allows restrictions on one’s right to travel provided that
such restriction is in the interest of national security, public safety or public health as may be provided by law.
This, however, should by no means be construed as limiting the Court’s inherent power of administrative
supervision over lower courts.

OCA Circular No. 49-2003 does not restrict but merely regulates, by providing guidelines to be
complied by judges and court personnel, before they can go on leave to travel abroad. To “restrict” is to
restrain or prohibit a person from doing something; to “regulate” is to govern or direct according to rule. To
ensure management of court dockets and to avoid disruption in the administration of justice, OCA Circular No.
49-2003 requires a judge who wishes to travel abroad to submit, together with his application for leave of
absence duly recommended for approval by his Executive Judge, a certification from the Statistics Division,
Court Management Office of the OCA. The said certification shall state the condition of his docket based on
his Certificate of Service for the month immediately preceding the date of his intended travel, that he has
decided and resolved all cases or incidents within three (3) months from date of submission, pursuant to
Section 15(1) and (2), Article VIII of the 1987 Constitution.

Thus, for traveling abroad without having been officially allowed by the Court, Judge Macarine is guilty
of violation of OCA Circular No. 49-2003. (Office of Administrative Services–Office of the Court
Administrator v. Judge Ignacio B. Macarine, A.M. No. MTJ-10-1770, 18 July 2012, 2nd Div. [Brion])

The Right of the People to Information on Matters of Public Concern

In Valmonte v. Belmonte, Jr., the Court emphasized that the information sought must be “matters of
public concern,” access to which may be limited by law. Similarly, the state policy of full public disclosure
extends only to “transactions involving public interest” and may also be “subject to reasonable conditions
prescribed by law.” As to the meanings of the terms “public interest” and “public concern,” the Court, in
Legaspi v. Civil Service Commission, elucidated:

“In determining whether or not a particular information is of public concern, there is no rigid test
which can be applied. ‘Public concern’ like ‘public interest’ is a term that eludes exact definition. Both
terms embrace a broad spectrum of subjects which the public may want to know, either because these
directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary
citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter
at issue is of interest or importance, as it relates to or affects the public.”

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 Considered a public concern in the above-mentioned case was the “legitimate concern of citizens to
ensure that government positions requiring civil service eligibility are occupied only by persons who are
eligibles.” So was the need to give the general public adequate notification of various laws that regulate and
affect the actions and conduct of citizens, as held in Tanada. Likewise did the “public nature of the loanable
funds of the GSIS and the public office held by the alleged borrowers (members of the defunct Batasang
Pambansa)” qualify the information sought in Valmonte as matters of public interest and concern. In Aquino-
Sarmiento v. Morato, the Court also held that official acts of public officers done in pursuit of their official
functions are public in character; hence, the records pertaining to such official acts and decisions are within the
ambit of the constitutional right of access to public records.

Under Republic Act No. 6713, public officials and employees are mandated to “provide information on
their policies and procedures in clear and understandable language, [and] ensure openness of information,
public consultations and hearing whenever appropriate x x x,” except when “otherwise provided by law or when
required by the public interest.” In particular, the law mandates free public access, at reasonable hours, to the
annual performance reports of offices and agencies of government and government-owned or controlled
corporations; and the statements of assets, liabilities and financial disclosures of all public officials and
employees.

In general, writings coming into the hands of public officers in connection with their official functions must be
accessible to the public, consistent with the policy of transparency of governmental affairs. This principle is
aimed at affording the people an opportunity to determine whether those to whom they have entrusted the
affairs of the government are honestly, faithfully and competently performing their functions as public servants.
Undeniably, the essence of democracy lies in the free-flow of thought; but thoughts and ideas must be well-
informed so that the public would gain a better perspective of vital issues confronting them and, thus, be able
to criticize as well as participate in the affairs of the government in a responsible, reasonable and effective
manner. Certainly, it is by ensuring an unfettered and uninhibited exchange of ideas among a well-informed
public that a government remains responsive to the changes desired by the people. (Chavez v. PCGG, 299
SCRA 744, Dec. 9, 1998, [Panganiban])

Recognized Restrictions to the Right of the People to Information on Matters of Public Concern

1) National security matters and intelligence information. This jurisdiction recognizes the common law
holding that there is a governmental privilege against public disclosure with respect to state secrets
regarding military, diplomatic and other national security matters. Likewise, information on inter-
government exchanges prior to the conclusion of treaties and executive agreements may be subject
to reasonable safeguards for the sake of national interest;

2) Trade or industrial secrets (pursuant to the Intellectual Property Code [R.A. No. 8293, approved on
June 6, 1997] and other related laws) and banking transactions (pursuant to the Secrecy of Bank
Deposits Act [R.A. No. 1405, as amended]);

3) Criminal matters, such as those relating to the apprehension, the prosecution and the detention of
criminals, which courts may not inquire into prior to such arrest, detention and prosecution;

4) Other confidential information. The Ethical Standards Act (R.A. No. 6713, enacted on February 20,
1989) further prohibits public officials and employees from using or divulging “confidential or
classified information officially known to them by reason of their office and not made available to the
public.” (Sec. 7[c], ibid.) Other acknowledged limitations to information access include diplomatic
correspondence, closed door Cabinet meetings and executive sessions of either house of
Congress, as well as the internal deliberations of the Supreme Court. (Chavez v. PCGG, 299
SCRA 744, Dec. 9, 1998, [Panganiban])

Re: Request for Copy of 2008 Statement of Assets, Liabilities and Networth (SALN) and Personal Data
Sheet or Curriculum Vitae of the Justices of the Supreme Court and Officers and Employees of the
Judiciary (A.M. No. 09-8-6-SC, June 13, 2012, En Banc [Mendoza])

Section 7 of Article III of the Constitution is relevant in the issue of public disclosure of SALN and other
documents of public officials.
54
 Emphasizing the import and meaning of the foregoing constitutional provision, the Court, in the
landmark case of Valmonte v. Belmonte, Jr., elucidated that the right to information goes hand in hand with the
constitutional policies of full public disclosure and honesty in the public service. It is meant to enhance the
widening role of the citizenry in governmental decision-making as well as in checking abuse in government.
The importance of the said right was pragmatically explicated that the incorporation of this right in the
Constitution is a recognition of the fundamental role of free exchange of information in a democracy. There
can be no realistic perception by the public of the nation’s problems nor a meaningful democratic decision-
making if they are denied access to information of general interest. Information is needed to enable the
members of society to cope with the exigencies of the times. However, restrictions on access to certain
records may be imposed by law.

Thus, while “public concern” like “public interest” eludes exact definition and has been said to embrace
a broad spectrum of subjects which the public may want to know, either because such matters naturally arouse
the interest of an ordinary citizen, the Constitution itself, under Section 17, Article XI, has classified the
information disclosed in the SALN as a matter of public concern and interest. In other words, a “duty to
disclose” sprang from the “right to know.” Both of constitutional origin, the former is a command while the latter
is a permission. Hence, there is a duty on the part of members of the government to disclose their SALNs to
the public in the manner provided by law.

In the case at bar, the Court notes the valid concerns of the other magistrates regarding the possible
illicit motives of some individuals in their requests for access to such personal information and their publication.
However, custodians of public documents must not concern themselves with the motives, reasons and objects
of the persons seeking to access to the records. The moral or material injury which their misuse might inflict
on others is the requestor’s responsibility and lookout. While public officers in the custody or control of public
records have the discretion to regulate the manner in which records may be inspected, examined or copied by
interested parties, such discretion does not carry with it the authority to prohibit access, inspection,
examination, or copying of the records. After all, public office is a public trust.

The Custodial Investigation Rights

R.A. No. 7438 (An Act Defining Certain Rights of Person Arrested, Detained or Under Custodial
Investigation as well as the Duties of the Arresting, Detaining and Investigating Officers and Providing
Penalties for Violations Thereof)

The Right to Bail

In bail application where the accused is charged with a capital offense, will it be proper for the judge to
grant bail without conducting hearing if the prosecutor interposes no objection to such application?

Jurisprudence is replete with decisions compelling judges to conduct the required hearings in bail
applications, in which the accused stands charged with a capital offense. The absence of objection from the
prosecution is never a basis for the grant of bail in such cases, for the judge has no right to presume that the
prosecutor knows what he is doing on account of familiarity with the case. “Said reasoning is tantamount to
ceding to the prosecutor the duty of exercising judicial discretion to determine whether the guilt of the accused
is strong. Judicial discretion is the domain of the judge before whom the petition for provisional liberty will be
decided. The mandated duty to exercise discretion has never been reposed upon the prosecutor.”

Imposed in Baylon v. Sison was this mandatory duty to conduct a hearing despite the prosecution's
refusal to adduce evidence in opposition to the application to grant and fix bail. (Joselito V. Narciso v. Flor
Marie Sta. Romana-Cruz, G.R. No. 134504, March 17, 2000, 3rd Div. [Panganiban])

55
Is a condition in an application for bail that accused be first arraigned before he could be granted bail
valid?

In the first place x x x in cases where it is authorized, bail should be granted before arraignment,
otherwise the accused may be precluded from filing a motion to quash. For if the information is quashed and
the case is dismissed, there would then be no need for the arraignment of the accused. In the second place,
the trial court could ensure the presence of petitioner at the arraignment precisely by granting bail and ordering
his presence at any stage of the proceedings, such as arraignment. Under Rule 114, Sec. 2(b) of the Rules on
Criminal Procedure, one of the conditions of bail is that “the accused shall appear before the proper court
whenever so required by the court or these Rules,” while under Rule 116, Sec. 1(b) the presence of the
accused at the arraignment is required.

On the other hand, to condition the grant of bail to an accused on his arraignment would be to place
him in a position where he has to choose between (1) filing a motion to quash and thus delay his release on
bail because until his motion to quash can be resolved, his arraignment cannot be held, and (2) foregoing the
filing of a motion to quash so that he can be arraigned at once and thereafter be released on bail. These
scenarios certainly undermine the accused’s constitutional right not to be put on trial except upon valid
complaint or information sufficient to charge him with a crime and his right to bail. (Lavides v. CA, 324 SCRA
321, Feb. 1, 2000, 2nd Div. [Mendoza])

Government of Hongkong Special Administrative Region v. Judge Olalia

The decision of the SC in Government of the USA v. Judge Purganan which says that “no bail rule
applies in extradition since bail is available only to one who had arrested and detained for violation of
Philippine criminal laws” was re-examined and, after re-examination, the rule now is that an extraditee may be
allowed to post bail during the pendency of an extradition proceeding. However, for him to be allowed to post
bail, still he must prove that (1) once granted bail he will not be a flight risk or a danger to the community; and
(2) that there exists special, humanitarian and compelling circumstances that will justify the grant of bail to him,
by a clear and convincing evidence.

The reason why the Purganan ruling was re-examined is because of the modern trend in public
international law where an individual person is no longer considered a mere object of international law but
rather as a subject thereof, and the primacy given to human rights, among which is the right to liberty.

Juan Ponce Enrile v. Sandiganbayan (3rd Div.), G.R. No. 213847, August 18, 2015, En Banc (Bersamin)

A close reading of the ruling of the SC in this case allowing former Senator Juan Ponce Enrile to post
bail although he was charged of plunder, a non-bailable offense, was because of the Olalia ruling.

In this case, former Senator Enrile was shown not to be a flight risk or a danger to the community (his
voluntary surrender to the authorities and his record of respect for court processes in earlier cases), and that
there exist special, humanitarian and compelling circumstances (his advanced age, fragile state of health and
medical predicament that will require the services of doctors of his choice) that will justify the grant of bail to
him. After all, the main purpose of bail is to assure the presence of an accused during the trial of the case as
required by the court. Thus, the Court held:

“Nonetheless, in now granting Enrile’s 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 Philippine’s responsibility in the
international community arising from the national commitment under the Universal Declaration of
Human Rights x x x.

“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

56
 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 having been charged in court indicate that the risk of his flight or escape from this
jurisdiction is highly unlikely. His personal disposition from the onset of his indictment for plunder,
formal or otherwise, has demonstrated his utter respect for the legal processes of this country. We also
do not ignore that at an earlier time many years ago when he had been charged with rebellion with
murder and multiple frustrated murder, he already evinced a similar personal disposition of respect for
the legal processes, and was granted bail during the pendency of his trial because he was not seen as
a flight risk. With his solid reputation in both his public and his private lives, his long years of public
service, and history’s judgment of him being at stake, he should be granted bail.

“The currently fragile state of Enrile’s health presents another compelling justification for his
admission to bail x x x.

“X x x

“Bail for the provisional liberty to the accused, regardless of the crime charged, should be
allowed independently of the merits of the charge, provided his continued incarceration is clearly shown
to be injurious to his health or to endanger his life. Indeed, denying him bail despite imperiling hid
health and life would not serve the true objective of preventive incarceration during the trial.

“Granting bail to Enrile on the foregoing reasons is not unprecedented. X x x

“It is relevant to observe that granting provisional liberty to Enrile will then enable him to have
his medical condition be properly addressed and better attended to by competent physicians in the
hospitals of his choice. This will not only aid in his adequate preparation of his defense but, more
importantly, will guarantee his appearance in court for the trial.

“On the other hand, to mark time in order to wait for the trial to finish before a meaningful
consideration of the application for bail can be had is to defeat the objective of bail, which is to entitle
the accused to provisional liberty pending the trial. There may be circumstances decisive of the issue
of bail x x x that the courts can already consider in resolving the application for bail without awaiting the
trial to finish. The Court thus balances the scales of justice by protecting the interest of the People
through ensuring his personal appearance at the trial, and at the same time realizing for him the
guarantees of due process as well as to be presumed innocent until proven guilty.”

The Right against Self-incrimination

It bears emphasis, however, that under the above-quoted provisions, what is actually proscribed is the
use of physical or moral compulsion to extort communication from the accused-appellant and not the inclusion
of his body in evidence when it may be material. For instance, substance emitted from the body of the
accused may be received as evidence in prosecution for acts of lasciviousness (US v. Tan Teng, 23 Phil. 145
[1912]) and morphine forced out of the mouth of the accused may also be used as evidence against him (US v.
Ong Siu Hong, 36 Phil. 735 [1917]). Consequently, although accused-appellant insists that hair samples were
forcibly taken from him and submitted to the NBI for forensic examination, the hair samples may be admitted in
evidence against him, for what is proscribed is the use of testimonial compulsion or any evidence
communicative in nature acquired from the accused under duress. (People v. Rondero, 320 SCRA 383, 399-
401, Dec. 9, 1999, En Banc [Per Curiam])

Does the right against self-incrimination extend to administrative proceedings?

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 In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against self-
incrimination under Section 17, Article III of the 1987 Constitution which is ordinarily available only in criminal
prosecutions, extends to administrative proceedings which possess a criminal or penal aspect, such as an
administrative investigation of a licensed physician who is charged with immorality, which could result in his
loss of the privilege to practice medicine if found guilty. The Court, citing the earlier case of Cabal v. Kapunan
(6 SCRA 1059 [1962]), pointed out that the revocation of one’s license as a medical practitioner, is an even
greater deprivation than forfeiture of property. (Secretary of Justice v. Lantion, 322 SCRA 160, 184, Jan.
18, 2000, En Banc [Melo])

May the Right against Self-incrimination be validly invoked during Inquiries in Aid of Legislation?

[I]t has been held that “a congressional committee’s right to inquire is ‘subject to all relevant limitations
placed by the Constitution on governmental action,’ including ‘the relevant limitations of the Bill of Rights’.”

One of the basic rights guaranteed by the Constitution to an individual is the right against self-
incrimination. (Bengzon, Jr. v. Senate Blue Ribbon Committee, 203 SCRA 767, Nov. 20, 1991, En Banc
[Padilla])

What are the two types of immunity statutes? Which has broader scope of protection?

Our immunity statutes are of American origin. In the United States, there are two types of statutory
immunity granted to a witness. They are the transactional immunity and the use-and-derivative-use immunity.
Transactional immunity is broader in the scope of its protection. By its grant, a witness can no longer be
prosecuted for any offense whatsoever arising out of the act or transaction. In contrast, by the grant of use-
and-derivative-use immunity, a witness is only assured that his or her particular testimony and evidence
derived from it will not be used against him or her in a subsequent prosecution. (Mapa, Jr. v.
Sandiganbayan, 231 SCRA 783, 797-798, April 26, 1994, En Banc [Puno])

Is the grant of immunity to an accused willing to testify for the government a special privilege and,
therefore, must be strictly construed against the accused?

[W]e reject respondent court’s ruling that the grant of section 5 immunity must be strictly construed
against the petitioners. It simplistically characterized the grant as a special privilege, as if it was gifted by the
government, ex gratia. In taking this posture, it misread the raison d’ etre and the long pedigree of the right
against self-incrimination vis-à-vis immunity statutes.

The days of inquisition brought about the most despicable abuses against human rights. Not the least
of these abuses is the expert use of coerced confessions to send to the guillotine even the guiltless. To guard
against the recurrence of this totalitarian method, the right against self-incrimination was ensconced in the
fundamental laws of all civilized countries. Over the years, however, came the need to assist government in its
task of containing crime for peace and order is a necessary matrix of public welfare. To accommodate the
need, the right against self-incrimination was stripped of its absoluteness. Immunity statutes in varying shapes
were enacted which would allow government to compel a witness to testify despite his plea of the right against
self-incrimination. To insulate these statutes from the virus of unconstitutionality, a witness is given what has
come to be known as transactional or a use-derivative-use immunity x x x. Quite clearly, these immunity
statutes are not a bonanza from government. Those given the privilege of immunity paid a high price for it –
the surrender of their precious right to be silent. Our hierarchy of values demands that the right against self-
incrimination and the right to be silent should be accorded greater respect and protection. Laws that tend to
erode the force of these preeminent rights must necessarily be given a liberal interpretation in favor of the
individual. The government has a right to solve crimes but it must do it, rightly. (Mapa, Jr. v. Sandiganbayan,
231 SCRA 783, 805-806, April 26, 1994, En Banc [Puno])

The Right against Double Jeopardy

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The Two (2) Kinds of Double Jeopardy:

Our Bill of Rights deals with two (2) kinds of double jeopardy. The first sentence of Clause 20, Section
1(now Sec. 21), Article III of the Constitution ordains that “no person shall be twice put in jeopardy of
punishment for the same offense.” The second sentence of said clause provides that “if an act is punishable
by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for
the same act.” Thus, the first sentence prohibits double jeopardy of punishment for the same offense whereas,
the second contemplates double jeopardy of punishment for the same act. Under the first sentence, one may
be twice put in jeopardy of punishment of the same act, provided that he is charged with different offenses, or
the offense charged in one case is not included in, or does not include, the crime charged in the other case.
The second sentence applies, even if the offense charged are not the same, owing to the fact that one
constitutes a violation of an ordinance and the other a violation of statute. If the two charges are based on one
and the same act, conviction or acquittal under either the law or the ordinance shall bar a prosecution under
the other. Incidentally, such conviction or acquittal is not indispensable to sustain the plea of double jeopardy
of punishment or the same offense. So long as jeopardy has been attached under one of the informations
charging said offense, the defense may be availed of in the other case involving the same offense, even if
there has been neither conviction nor acquittal in either case.
Elsewhere stated, where the offense charged are penalized either by different sections of the same
statute or by different statutes, the important inquiry relates to the identity of offenses charged. The
constitutional protection against double jeopardy is available only where an identity is shown to exist between
the earlier and the subsequent offenses charged. The question of identity or lack of identity of offenses is
addressed by examining the essential elements of each of the two offenses charged, as such elements are set
out in the respective legislative definitions of the offenses involved. (People v. Quijada, 259 SCRA 191, July
24, 1996)

To substantiate a claim of double jeopardy, the following must be proven:

(1) A first jeopardy must have attached prior to the second; (2) the first jeopardy must have been validly
terminated; (3) the second jeopardy must be for the same offense, or the second offense includes or is
necessarily included in the offense charged in the first information, or is an attempt to commit the same or is a
frustration thereof.

Legal jeopardy attaches only: (1) upon a valid indictment; (b) before a competent court; (c) after
arraignment; (d) when a valid plea has been entered; and (e) the case was dismissed or otherwise terminated
without the express consent of the accused. (Cuison v. CA, 289 SCRA 159, April 15, 1998 [Panganiban])

The Right against Ex Post Facto Law and Bill of Attainder

What is a bill of attainder? Is P.D. 1866 a bill of attainder?

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

What is an ex post facto law? Is R.A. No. 8249 an ex post facto law?
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 Ex post facto law, generally, prohibits retrospectivity of penal laws. R.A. 8249 is not a penal law. It is a
substantive law on jurisdiction which is not penal in character. Penal laws are those acts of the Legislature
which prohibit certain acts and establish penalties for their violations; or those that define crimes, treat of their
nature, and provide for their punishment. R.A. 7975, which amended P.D. 1606 as regards the
Sandiganbayan’s jurisdiction, its mode of appeal and other procedural matters, has been declared by the Court
as not a penal law, but clearly a procedural statute, i.e., one which prescribes rules of procedure by which
courts applying laws of all kinds can properly administer justice. Not being a penal law, the retroactive
application of R.A. 8249 cannot be challenged as unconstitutional.

Petitioner’s and intervenors’ contention that their right to a two-tiered appeal which they acquired under
R.A. 7975 has been diluted by the enactment of R.A. 8249, is incorrect. The same contention has already
been rejected by the court several times considering that the right to appeal is not a natural right but statutory
in nature that can be regulated by law. The mode of procedure provided for in the statutory right of appeal is
not included in the prohibition against ex post facto laws. R.A. 8249 pertains only to matters of procedure, and
being merely an amendatory statute it does not partake the nature of an ex post facto law. It does not mete
out a penalty and, therefore, does not come within the prohibition. Moreover, the law did not alter the rules of
evidence or the mode of trial. It has been ruled that adjective statutes may be made applicable to actions
pending and unresolved at the time of their passage.

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

CITIZENSHIP

Citizenship is not a matter of convenience. It is a badge of identity that comes with attendant civil and
political rights accorded by the State to its citizens. It likewise demands the concomitant duty to maintain
allegiance to one’s flag and country. (Casan Macode Maquiling v. COMELEC, et al., G.R. No. 195649, April
16, 2013, En Banc [Sereno, CJ])

The Jus Sanguinis Principle on Citizenship

The Philippine law on citizenship adheres to the principle of jus sanguinis. Thereunder, a child follows
the nationality or citizenship of the parents regardless of the place of his/her birth, as opposed to the doctrine
of jus soli which determines nationality or citizenship on the basis of place of birth. (Valles v. COMELEC, 337
SCRA 543, Aug. 9, 2000, En Banc [Purisima])

Ways of acquiring Citizenship

There are two ways of acquiring citizenship: (1) by birth, and (2) by naturalization. These ways of
acquiring citizenship correspond to the two kinds of citizens: the natural-born citizen, and the naturalized
citizen. A person who at the time of his birth is a citizen of a particular country, is a natural-born citizen thereof.

As defined in the Constitution, natural-born citizens “are those citizens of the Philippines from birth
without having to perform any act to acquire or perfect his Philippine citizenship.”

On the other hand, naturalized citizens are those who have become Filipino citizens through
naturalization, generally under Commonwealth Act No. 473, otherwise known as the Revised Naturalization
Law, which repealed the former Naturalization Law (Act No. 2927), and by Republic Act No. 530. (Antonio
Bengson III v. HRET, G.R. No. 142840, May 7, 2001, En Banc [Kapunan])

Natural-born Citizens

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 Natural-born citizens are those who are citizens of the Philippines from birth without having to
perform any act to acquire or perfect their Philippine citizenship. Those who elect Philippine citizenship
in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens. (Section 2,
Article IV, 1987 Constitution)

In general, there are only two (2) kinds of Filipino citizens, i.e., natural-born and naturalized. There is
no third category. If one did not have to undergo the cumbersome process of naturalization, it means that he is
natural-born. (Antonio Bengson III v. HRET, G.R. No. 142840, May 7, 2001, En Banc [Kapunan])

Is a Foundling a Natural-born Citizen?

To deny full Filipino citizenship to all foundlings and render them stateless just because there may be a
theoretical chance that one among the thousands of these foundlings might be the child of not just one, but
two, foreigners is downright discriminatory, irrational, and unjust. It just doesn’t make any sense. Given the
statistical certainty 99.9% - that any child born in the Philippines would be a natural-born citizen, a decision
denying foundlings such status is effectively a denial of their birthright. There is no reason why this Honorable
Court should use an improbable hypothetical to sacrifice the fundamental political rights of an entire class of
human beings. Your Honor, constitutional interpretation and the use of common sense are not separate
disciplines.

As a matter of fact, 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 numeration with respect to foundlings, there is a
need to examine the intent of the framers. X x x

[T]he deliberations of the 1934 Constitutional Convention show that the framers intended foundlings to
be covered by the enumeration. X x x

Though the Rafols amendment was not carried out, it was not because there was any objection to the
notion that persons of “unknown parentage” are not citizens but only because their number was not enough to
merit specific mention. X x x

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
Article IV, Section 1(3) of the 1935 Constitution. This inclusive policy is carried over into the 1973 and 1987
Constitutions. X x x

Domestic laws on adoption also support the principle that foundlings are Filipinos. These laws do not
provide that adoption confers citizenship upon the adoptee. Rather, the adoptee must be a Filipino in the first
place to be adopted. X x x

Foundlings are likewise citizens under international law. Under the 1987 Constitution, an international
law can become part of the sphere of domestic law either by transformation or incorporation. X x x

The common thread of the UDHR (Universal Declaration of Human Rights), UNCRC (UN Convention
on the Rights of the Child) and ICCPR (International Covenant on Civil and Political Rights) is to obligate the
Philippines to grant nationality from birth and ensure that no child is stateless. 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 ungratified by the Philippines, are generally accepted
principles of international law. The first is Article 14 of the 1930 Hague Convention on Certain Questions

61
Relating to the Conflict of Nationality Laws under which a foundling is presumed to have the “nationality of the
country of birth,” x x x.

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

The second is the principle that a foundling is presumed born of citizens of the country where he is
found, contained in Article 2 of the 1961 United Nations Convention on the Reduction of Statelessness x x x.

Xxx

In sum, all of the international law conventions and instruments on the matter of nationality of
foundlings were designed to address the plight of a defenseless class which suffers from a misfortune not of
their making. We cannot be restrictive as to their application if we are a country which calls itself civilized and
a member of the community of nations. X x x (Mary Grace Natividad S. Poe-Llamanzares v. COMELEC, G
R. No. 221697, March 8, 2016, En Banc [Perez])

Loss or Reacquisition of Philippine Citizenship

Philippine citizenship may be lost or reacquired in the manner provided by law (Section 3,
Article IV, 1987 Constitution)

There are three (3) ways by which Philippine citizenship may be reacquired, namely: (1) by
naturalization; (2) by repatriation; and (3) by direct act of Congress.

The Effect of Marriage

Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or
omission they are deemed, under the law, to have renounced it. (Section 4, Article IV, 1987
Constitution)

Dual Citizenship and Dual Allegiance

Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law.
(Section 5, Article IV, 1987 Constitution)

This provision is not self-executing. The word employed by Section 5 is “shall.” The law referred to is a
future law.

Dual Citizenship distinguished from Dual Allegiance.

Dual citizenship arises when, as a result of the concurrent application of the different laws of two or
more states, a person is simultaneously considered a national by the said states. For instance, such a
situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus
sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and without any
voluntary act on his part, is concurrently considered a citizen of both states.

Dual allegiance, on the other hand, refers to a situation in which a person simultaneously owes, by
some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the
result of an individual’s volition. (Mercado v. Manzano, 307 SCRA 630, May 26, 1999, En Banc [Mendoza])

What is the main concern of Section 5, Article IV, 1987 Constitution, on citizenship? Consequently, are
persons with mere dual citizenship disqualified to run for elective local positions under Section 40(d)
of the Local Government Code?

62
 In including Section 5 in Article IV on citizenship, the concern of the Constitutional Commission was not
with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin
even after their naturalization. Hence, the phrase “dual citizenship” in R.A. No. 7160, Section 40(d) (Local
Government Code) must be understood as referring to “dual allegiance.” Consequently, persons with mere
dual citizenship do not fall under this disqualification. Unlike those with dual allegiance, who must be subject to
strict process with respect to the termination of their status, for candidates with dual citizenship, it should
suffice if, upon the filing of their certificate of candidacy, they elect Philippine citizenship to terminate their
status as persons with dual citizenship considering that their condition is the unavoidable consequence of
conflicting laws of different states.

By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other
country of which they are also citizens and thereby terminate their status as dual citizens. It may be that, from
the point of view of the foreign state and of its laws, such an individual has not effectively renounced his foreign
citizenship. That is of no moment. (Mercado v. Manzano, G.R. No. 135083, 307 SCRA 630, May 26, 1999
[Mendoza])

Instances when a citizen of the Philippines may possess dual citizenship considering the citizenship
clause (Article IV) of the Constitution.

1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus
soli;
2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their father’s
country such children are citizens of that country;
3) Those who marry aliens if by the laws of the latter’s country the former are considered citizens,
unless by their act or omission they are deemed to have renounced Philippine citizenship. (Mercado
v. Manzano, G.R. No. 135083, 307 SCRA 630, May 26, 1999 [Mendoza])

Republic Act No. 9225 (The Citizenship Retention and Reacquisition Act of 2003)

Sometimes, this law has been referred to as the dual citizenship law.

The law applies to: (1) former natural-born citizens of the Philippines who have already become citizens
of a foreign country through naturalization; and (2) natural-born citizens of the Philippines who may wish to
become a citizen of a foreign country through naturalization after the effectivity of this Act.

In both cases, they are given the opportunity to either reacquire (reacquisition) or retain (retention) their
Philippine citizenship. Thus, in effect, they will possess dual citizenship.

Casan Macode Maquiling v. COMELEC, et al., G.R. No. 195649, April 16, 2013, En Banc (Sereno, CJ)

When after renouncing his American citizenship upon his filing of certificate of candidacy for mayor, it
was established that he travelled several times to the US using his American passport, that was an effective
recantation of his renunciation of his foreign citizenship. Thus, he reverted to his prior status as a person
having dual citizenship and, therefore, disqualified to run for mayor pursuant to Sec. 40 (d) of the Local
Government Code (R.A. No. 7061).

Held:

Section 5(2) of The Citizenship Retention and Re-acquisition Act of 2003 provides:

Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and
political rights and be subject to all attendant liabilities and responsibilities under existing laws of the
Philippines and the following conditions:

(2) Those seeking elective public office in the Philippines shall meet the qualifications for
holding such public office as required by the Constitution and existing laws and, at the time of the filing

63
 of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign
citizenship before any public officer authorized to administer an oath. X x x

Rommel Arnado took all the necessary steps to qualify to run for a public office. He took the Oath of
Allegiance and renounced his foreign citizenship. There is no question that after performing these twin
requirements required under Section 5(2) of R.A. Act No. 9225 or the Citizenship Retention and Re-acquisition
Act of 2003, he became eligible to run for public office.

Indeed, Arnado took the Oath of Allegiance not just only once but twice. By taking the Oath of
Allegiance to the Republic, Arnado re-acquired his Philippine citizenship. At the time, however, he likewise
possessed American citizenship. Arnado had therefore become a dual citizen.

After reacquiring his Philippine citizenship, Arnado renounced his American citizenship by executing an
Affidavit of Renunciation, thus completing the requirements for eligibility to run for public office.

By renouncing his foreign citizenship, he was deemed to be solely a Filipino citizen, regardless of the
effect of such renunciation under the laws of the foreign country.

However, this legal presumption does not operate permanently and is open to attack when, after
renouncing the foreign citizenship, the citizen performs positive acts showing his continued possession of a
foreign citizenship.

Arnado himself subjected the issue of his citizenship to attack when, after renouncing his foreign
citizenship, he continued to use his US passport to travel in and out of the country. The pivotal question to
determine is whether he was solely and exclusively a Filipino citizen at the time he filed his certificate of
candidacy, thereby rendering him eligible to run for public office.

The renunciation of foreign citizenship is not a hollow oath that can simply be professed at any time,
only to be violated the next day. It requires an absolute and perpetual renunciation of the foreign citizenship
and a full divestment of all civil and political rights granted by the foreign country which granted the citizenship.

Xxx

While the act of using a foreign passport is not one of the acts enumerated in Commonwealth Act No.
63 constituting renunciation and loss of Philippine citizenship, it is nevertheless an act which repudiates the
very oath of renunciation required for a former Filipino citizen who is also a citizen of another country to be
qualified to run for a local elective position.

Xxx

We agree with the COMELEC En Banc that such act of using a foreign passport does not divest
Arnado of his Filipino citizenship, which he acquired by repatriation. However, by representing himself as an
American citizen, Arnado voluntarily and effectively reverted to his earlier status as a dual citizen. Such
reversion was not retroactive; it took place the instant Arnado represented himself as an American citizen by
using his US passport.

This act of using a foreign passport after renouncing one’s foreign citizenship is fatal to Arnado’s bid for
public office, as it effectively imposed on him a disqualification to run for an elective local position.

Arnado’s category of dual citizenship is that by which foreign citizenship is acquired through a positive
act of applying for naturalization. This is distinct from those considered dual citizens by virtue of birth, who are
not required by law to take the oath of renunciation as the mere filing of the certificate of candidacy already
caries with it an implied renunciation of foreign citizenship. Dual citizens by naturalization, on the other hand,
are required to take not only the Oath of Allegiance to the Republic of the Philippines but also to personally
renounce foreign citizenship in order to qualify as a candidate for public office.

64
 By the time he filed his certificate of candidacy Arnado was a dual citizen enjoying the rights and
privileges of Filipino and American citizenships. He was qualified to vote, but by express disqualification under
Section 40(d) of the Local Government Code, he was not qualified to run for a local elective position.

Xxx

The citizenship requirement for elective public office is a continuing one. It must be possessed not just
at the time of the renunciation of the foreign citizenship but continuously. Any act which violates the oath of
renunciation opens the citizenship issue to attack.

We agree with the pronouncement of the COMELEC First Division that “Arnado’s act of continuously
using his US passport effectively negated his Affidavit of Renunciation.” This does not mean that he failed to
comply with the twin requirements under R.A. No. 9225, for he in fact did. It was after complying with the
requirements that he performed positive acts which effectively disqualified him from running for an elective
public office pursuant to Section 40(d) of the Local Government Code of 1991.

Xxx

Besides, Arnado’s subsequent use of his Philippine passport does not correct the fact that after he
renounced his foreign citizenship and prior to filing his certificate of candidacy, he used his US passport. In the
same way that the use of his foreign passport does not undo his Oath of Renunciation, his subsequent use of
his Philippine passport does not undo his earlier use of his US passport.

Xxx

We therefore hold that Arnado, by using his US passport after renouncing his American citizenship, has
recanted the same Oath of Renunciation he took. Section 40(d) of the Local Government Code applies to his
situation. He is disqualified not only from holding the public office but even from becoming a candidate in the
May 2011 elections.

Naturalization

Naturalization signifies the act of formally adopting a foreigner into the political body of a nation by
clothing him or her with the privileges of a citizen. (Edison So v. Republic of the Philippines, G.R. No.
170603, January 29, 2007, 3rd Div., [Callejo, Sr.])

Ways by which an Alien may become a Citizen by Naturalization

Under current and existing laws, there are three ways by which an alien may become a citizen by
naturalization: (a) administrative naturalization pursuant to R.A. No. 9139; (b) judicial naturalization pursuant to
C.A. No. 473, as amended; and (c) legislative naturalization in the form of a law enacted by Congress
bestowing Philippine citizenship to an alien. (Edison So v. Republic of the Philippines, G.R. No. 170603,
January 29, 2007, 3rd Div., [Callejo, Sr.])

Republic Act No. 9139 (Providing for Administrative Naturalization of an Alien)

R.A. No. 9139 was enacted as a remedial measure intended to make the process of acquiring
Philippine citizenship less tedious, less technical and more encouraging. It likewise addresses the concerns of
degree holders who, by reason of lack of citizenship requirement, cannot practice their profession, thus
promoting “brain gain” for the Philippines.

May All Aliens Avail of the Benefits of Administrative Naturalization under R.A. No. 9139?

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 R.A. No. 9139 may be availed of only by native-born aliens who lived here in the Philippines all their
lives, who never saw any other country and all along thought that they were Filipinos; who have demonstrated
love and loyalty to the Philippines and affinity to the customs and traditions of the Filipino people. To reiterate,
the intention of the legislature in enacting R.A. No. 9139 was to make the process of acquiring Philippine
citizenship less tedious, less technical and more encouraging which is administrative rather than judicial in
nature. What the legislature had in mind was merely to prescribe another mode of acquiring Philippine
citizenship which may be availed of by native born aliens. The only implication is that, a native born alien has
the choice to apply for judicial or administrative naturalization, subject to the prescribed qualifications and
disqualifications. (Edison So v. Republic of the Philippines, G.R. No. 170603, January 29, 2007, 3rd Div.,
[Callejo, Sr.]

ADMINISTRATIVE LAW

The Doctrine of Primary Jurisdiction or Prior Resort

The Doctrine of Exhaustion of Administrative Remedies

Under the doctrine of exhaustion of administrative remedies, before a party is allowed to seek the
intervention of the court, one should have availed first of all the means of administrative processes available. If
resort to a remedy within the administrative machinery can still be made by giving the administrative officer
concerned every opportunity to decide on a matter that comes within his jurisdiction, then such remedy should
be exhausted first before the court’s judicial power can be sought. For reasons of comity and convenience,
courts of justice shy away from dispute until the system of administrative redress has been completed and
complied with, so as to give the administrative agency concerned every opportunity to correct its error and
dispose of the case. X x x. (Saturnino C. Ocampo, et al. v. Rear Admiral Ernesto C. Enriquez, et al., G.R.
No. 225973, November 8, 2016, En Banc [Peralta])

THE LAW OF PUBLIC OFFICERS

Public Office is a Public Trust

Conchita Carpio-Morales v. Court of Appeals (6th Div.), G.R. Nos. 217126-27, November 10, 2015
(Perlas-Bernabe)

Nature of Appointment as Discretionary

Flores v. Drilon

The Powers of the Ombudsman

Conchita Carpio-Morales v. Court of Appeals (6th Div.), G.R. Nos. 217126-27, November 10, 2015
(Perlas-Bernabe)

The Ombudsman has Administrative Disciplinary Authority over all Public Officers and Employees

The Office of the Ombudsman shall have disciplinary authority over all elective and appointive
officials of the Government and its subdivisions, instrumentalities and agencies, including Members of
the Cabinet, local government, government-owned or controlled corporations and their subsidiaries,
except over officials who may be removed only by impeachment or over Members of Congress, and the
Judiciary. (Sec. 21, R.A. No. 6770)

In the exercise of its Administrative Jurisdiction, the Ombudsman may impose Preventive Suspension

66
 The Ombudsman or his Deputy may preventively suspend any officer or employee under his
authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge
against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the
performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent’s
continued stay in office may prejudice the case filed against him.

The preventive suspension shall continue until the case is terminated by the Office of the
Ombudsman but not more than six (6) month, except when the delay in the disposition of the case by
the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case
the period of such delay shall not be counted in computing the period of suspension herein provided.
(Sec. 24, R.A. No. 6770)

No Writ of Injunction shall be issued by any Court to delay an Investigation being conducted by the
Ombudsman

No writ of injunction shall be issued by any court to delay an investigation being conducted by
the Ombudsman under this Act, 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. (Sec. 14, R.A. No. 6770)

Caveat:

The second paragraph of Section 14 of Republic Act No. 6770 is declared UNCONSTITUTIONAL,
while the policy against the issuance of provisional injunctive writs by courts other than the Supreme Court to
enjoin an investigation conducted by the Office of the Ombudsman under the first paragraph of the said
provision is declared INEFFECTIVE until the Court adopts the same as part of the rules of procedure through
an administrative circular duly issued therefor. (Conchita Carpio Morales v. Court of Appeals [Sixth
Division], GR Nos. 217126-27, November 10, 2015, En Banc [Perlas-Bernabe]).

Effectivity and Finality of Decisions of Ombudsman

All provisionary orders of the Office of the Ombudsman are immediately effective and executory.

Xxx

In all administrative disciplinary cases, orders, directives, or decisions of the Office of the
Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten (10)
days from receipt of the written notice of the order, directive or decision or denial of the motion for
reconsideration in accordance with Rule 45 of the Rules of Court. (This provision was declared
unconstitutional by the Supreme Court in Fabian v. Desierto, 356 Phil. 787 [1998], as it
contravened Section 30, Article VI of the Constitution. In effect the provision increased the
appellate jurisdiction of the Supreme Court without its consent under that provision.
Henceforth, decisions of the Ombudsman in administrative cases should be filed with the Court
of Appeals under that ruling.)

The Law on Nepotism

Under the definition of nepotism, one is guilty of nepotism if an appointment is issued in favor of a
relative within the third civil degree of consanguinity or affinity of any of the following:

a) appointing authority;
b) recommending authority;
c) chief of the bureau or office; and
d) person exercising immediate supervision over the appointee.
67
 Clearly, there are four situations covered. In the last two mentioned situations, it is immaterial who the
appointing or recommending authority is. To constitute a violation of the law, it suffices that an appointment is
extended or issued in favor of a relative within the third civil degree of consanguinity or affinity of the chief of
the bureau or office, or the person exercising immediate supervision over the appointee. (CSC v. Pedro O.
Dacoycoy, G.R. No. 135805, April 29, 1999, En Banc [Pardo])

What are the exemptions from the operation of the rules on nepotism?

The following are exempted from the operation of the rules on nepotism: (a) persons employed in a
confidential capacity, (b) teachers, (c) physicians, and (d) members of the Armed Forces of the Philippines.

The rules on nepotism shall likewise not be applicable to the case of a member of any family who, after
his or her appointment to any position in an office or bureau, contracts marriage with someone in the same
office or bureau, in which event the employment or retention therein of both husband and wife may be allowed.
(Sec. 59, Chap. 7, Subtitle A, Title I, Bk. V, E.O. No. 292)

Preventive Suspension

Jurisprudential law (Reyes v. Delim, 368 SCRA 323, 333 [2001]; Yabut v. Office of the Ombudsman,
233 SCRA 310, 316-317 [1994]; Beja, Sr. v. Court of Appeals, 207 SCRA 689, 694 [1992]) establishes a clear-
cut distinction between suspension as preventive measure and suspension as penalty. The distinction, by
considering the purpose aspect of the suspensions, is readily cognizable as they have different ends to be
achieved.

Preventive suspension is merely a preventive measure, a preliminary step in an administrative

investigation. The purpose of the suspension order is to prevent the accused from using his position and the
powers and prerogatives of his office to influence potential witnesses or tamper with records which may be vital
in the prosecution of the case against him. If after such investigation, the charge is established and the person
investigated is found guilty of acts warranting his suspension or removal, then he is suspended, removed or
dismissed. This is the penalty.

That preventive suspension is not a penalty is in fact explicitly provided by Section 24 of Rule XIV of the
Omnibus Rules Implementing Book V of the Administrative Code of 1987 (Executive Order No. 292) and other
Pertinent Civil Service Laws.

Xxx

Clearly, service of the preventive suspension cannot be credited as service of penalty. To rule
otherwise is to disregard above-quoted Sections 24 and 25 of the Administrative Code of 1987 and render
nugatory the substantial distinction between, and purposes of imposing preventive suspension and suspension
as penalty.

Xxx

En passant, neither may the concept of crediting, criminal law, preventive imprisonment in the service
of a convict’s term of imprisonment (Article 29 of the Revised Penal Code) be applied to preventive suspension
during investigation in administrative law in the service of a respondent’s final penalty of suspension. For not
only are they distinct in the objective or purpose, or in their nature as preventive imprisonment involves
restriction of personal liberties which is not the case with preventive suspension; the respective laws covering
them are explicit. (Quimbo v. Gervacio, 466 SCRA 277, Aug. 9, 2005, 3rd Div. [Carpio-Morales])

The Doctrine of Condonation

A public official cannot be removed for administrative misconduct committed during a prior term, since
his re-election to office operates as a condonation of the officer’s previous misconduct to the extent of cutting
68
off the right to remove him therefor. The foregoing rule, however, finds no application to criminal cases
pending against petitioner. (Aguinaldo v. Santos, 212 SCRA 768, 773 [1992])

Reason for the Doctrine

The rationale for this holding is that when the electorate put him back into office, it is presumed that it
did so with full knowledge of his life and character, including his past misconduct. If, armed with such
knowledge, it still reelects him, then such reelection is considered a condonation of his past misdeeds. (Mayor
Alvin B. Garcia v. Hon. Arturo C. Mojica, et al., G.R. No. 139043, Sept. 10, 1999 [Quisumbing])

Caveat:

This Doctrine of Condonation was abandoned by the Supreme Court in the more recent case of
Conchita Carpio Morales v. Court of Appeals (Sixth Division), GR Nos. 217126-27, November 10, 2015,
En Banc (Perlas-Bernabe). However, the abandonment of the doctrine was given prospective application
only.

The Origin of the Condonation Doctrine

Generally speaking, condonation has been defined as “[a] victim’s express or implied forgiveness of an
offense, [especially] by treating the offender as if there had been no offense.”

The condonation doctrine – which connotes this same sense of complete extinguishment of liability x x
x - is not based on statutory law. It is a jurisprudential creation that originated from the 1959 case of Pascual
v. Hon. Provincial Board of Nueva Ecija (106 Phil. 466 [1959]), which was therefore decided under the
1935 Constitution.

Xxx

As there was no legal precedent on the issue at that time, the Court, in Pascual, resorted to
American authorities and “found that cases on the matter are conflicting due in part, probably, to differences
in statutes and constitutional provisions, and also, in part, to a divergence of views with respect to the question
of whether the subsequent election or appointment condones the prior misconduct.” Without going into the
variables of these conflicting views and cases, it proceeded to state that:

The weight of authorities x x x seems to incline toward the rule denying the right to remove from
office because of misconduct during a prior term, to which we fully subscribe.

The conclusion is at once problematic since the Court has now uncovered that there is really no
established weight of authority in the United States (US) favoring the doctrine of condonation, which, in the
words of Pascual, theorizes that an official’s re-election denies the right to remove him from office due to a
misconduct during a prior term. In fact, x x x at least seventeen (17) states in the US have abandoned the
condonation doctrine. X x x

Xxx

Overall, the foregoing data clearly contravenes the preliminary conclusion in Pascual that there is a
“weight of authority” in the US on the condonation doctrine. In fact, without any cogent exegesis to show that
Pascual had accounted for the numerous factors relevant to the debate on condonation, an outright adoption of
the doctrine in this jurisdiction would not have been proper.

At any rate, these US cases are only of persuasive value in the process of this Court’s decision-making.
“[They] are not relied upon as precedents, but as guides of interpretation.” Therefore, the ultimate analysis is
on whether or not the condonation doctrine, as espoused in Pascual, and carried over in numerous cases
after, can be held up against prevailing legal norms. Note that the doctrine of stare decisis does not preclude
this Court from revisiting existing doctrine. X x x

69
 In this case, the Court agrees x x x that since the time Pascual was decided, the legal landscape has
radically shifted. Again, Pascual was a 1959 case decided under the 1935 Constitution, which dated provisions
do not reflect the experience of the Filipino people under the 1973 and 1987 Constitutions. Therefore, the
plain difference in setting, including, of course, the sheer impact of the condonation doctrine on public
accountability, calls for Pascual’s judicious re-examination.

Testing the Condonation Doctrine

Pascual’s ratio decidendi may be dissected into three (3) parts:

First, the penalty of removal may not be extended beyond the term in which the public officer was
elected for each term is separate and distinct x x x.

Second, an elective official’s re-election serves as a condonation of previous misconduct, thereby

cutting the right to remove him therefor; and

Third, courts may not deprive the electorate, who are ssumed to have known the life and character of
candidates, of their right to elect officers x x x.

Xxx

The Court, citing Civil Service Commission v. Sojor (577 Phil. 52, 72 [2008]), also clarified that the
condonation doctrine would not apply to appointive officials since, as to them, there is no sovereign will
to disenfranchise x x x.

Xxx

A thorough review of the cases post-1987 x x x would show that the basis for condonation under the
prevailing constitutional and statutory framework was never accounted for. What remains apparent from the
text of these cases is that the basis for condonation, as jurisprudential doctrine, was – and still remains – the
above-cited postulates of Pascual, which was lifted from rulings of US courts where condonation was amply
supported by their own state laws. With respect to its applicability to administrative cases, the core premise of
condonation - that is, an elective official’s re-election cuts off the right to remove him for an administrative
offense committed during a prior term – was adopted hook, line, and sinker in our jurisprudence largely
because the legality of that doctrine was never tested against existing legal norms. As in the US, the propriety
of condonation is – as it should be – dependent on the legal foundation of the adjudicating jurisdiction. Hence,
the Court undertakes an examination of our current laws in order to determine if there is legal basis for the
continued application of the doctrine of condonation.

Xxx

As earlier intimated, Pascual was a decision promulgated in 1959. Therefore, it was decided within the
context of the 1935 Constitution which was silent with respect to public accountability, or of the nature of public
office being a public trust. The provision in the 1935 Constitution that comes closest in dealing with public
office is Section 2, Article II which states that “[t]he defense of the State is a prime duty of government, and in
the fulfillment of this duty all citizens may be required by law to render personal military or civil service.”
Perhaps owing to the 1935 Constitution’s silence on public accountability, and considering the dearth of
jurisprudential rulings on the matter, as well as the variance in the policy considerations, there was no glaring
objection confronting the Pascual Court in adopting the condonation doctrine that originated from select US
cases existing at that time.

With the advent of the 1973 Constitution, the approach in dealing with public officers underwent a
significant change. The new charter introduced an entire article on accountability of public officers, found in
Article XIII. Section 1 thereof positively recognized, acknowledged, and declared that “[p]ublic office is a

70
public trust.” Accordingly, “[p]ublic officers and employees shall serve with the highest degree of
responsibility, integrity, loyalty and efficiency, and shall remain accountable to the people.”

After the turbulent decades of Martial Law rule, the Filipino People have framed and adopted the 1987
Constitution, which sets forth in the Declaration of Principles and State Policies in Article II that “[t]he State
shall maintain honesty and integrity in the public service and take positive and effective measures
against graft and corruption.” Learning how unbridled power could corrupt public servants under the regime
of a dictator, the Framers put primacy on the integrity of the public service by declaring it as a constitutional
principle and a State policy. More significantly, the 1987 Constitution strengthened and solidified what have
been first proclaimed in the 1973 Constitution by commanding public officers to be accountable to the people
at all times.

Xxx

The same mandate is found in the Revised Administrative Code under the section of the Civil Service
Commission, and also, in the Code of Conduct and Ethical Standards for Public Officials and Employees.

For local elective officials like Binay, Jr., the grounds to discipline, suspend or remove an elective
local official from office are stated in Section 60 of Republic Act No. 7160, otherwise known as the “Local
Government Code of 1991” (LGC), which was approved on October 10, 1991, and took effect on January 1,
1992.

Xxx

Related to this provision is Section 40 (b) of the LGC which states that those removed from office
as a result of an administrative case shall be disqualified from running for any elective local position.

In the same sense, Section 52 (a) of the RRACCS provides that the penalty of dismissal from
service carries the accessory penalty of perpetual disqualification from holding public office.

In contrast, Section 66 (b) of the LGC states that the penalty of suspension shall not exceed the
unexpired term of the elective local official nor constitute a bar to his candidacy for as long as he meets the
qualifications required for the office. Note, however, that the provision only pertains to the duration of the
penalty and its effect on the official’s candidacy. Nothing therein states that the administrative liability
therefor is extinguished by the fact of re-election x x x.

Reading the 1987 Constitution together with the above-cited legal provisions now leads this Court to
the conclusion that the doctrine of condonation is actually bereft of legal bases.

To begin with, the concept of public office is a public trust and the corollary requirement of
accountability to the people at all times, as mandated under the 1987 Constitution, is plainly inconsistent
with the idea that an elective local official’s administrative liability for a misconduct committed during a prior
term can be wiped off by the fact that he was elected to a second term of office, or even another elective post.
Election is not a mode of condoning an administrative offense, and there is simply no constitutional or
statutory basis in our jurisdiction to support the notion that an official elected for a different term is fully
absolved of any administrative liability arising from an offense done during a prior term. In this jurisdiction,
liability arising from administrative offenses may be condoned by the President in light of Section 19,
Article VII of the 1987 Constitution which was interpreted in Llamas v. Orbos (279 Phil. 920, 937 [1991]) to
apply to administrative offenses x x x.

Also, it cannot be inferred from Section 60 of the LGC that the grounds for discipline enumerated
therein cannot anymore be invoked against an elective local official to hold him administratively liable once he
is re-elected to office. In fact, Section 40 (b) of the LGC precludes condonation since in the first place, an
elective local official who is meted with the penalty of removal could not be re-elected to an elective local
position due to a direct disqualification from running for such post. In similar regard, Section 52 (a) of the

71
RRACCS imposes penalty of perpetual disqualification from holding public office as an accessory to the
penalty of dismissal from service.

To compare, some of the cases adopted in Pascual were decided by US State jurisdictions wherein the
doctrine of condonation of administrative liability was supported by either a constitutional or statutory provision
stating, in effect, that an officer cannot be removed by a misconduct committed during a previous term, or that
the disqualification to hold the office does not extend beyond the term in which the official’s
delinquency occurred. X x x. Hence, owing to either their variance or inapplicability, none of these cases
can be used as basis for the continued adoption of the condonation doctrine under our existing laws.

At best, Section 66 (b) of the LGC prohibits the enforcement of the penalty of suspension beyond
the unexpired portion of the elective local official’s term, and likewise allows said official to still run for re-
election. X x x. However, as previously stated, nothing in Section 66 (b) states that the elective local official’s
administrative liability is extinguished by the fact of re-election. Thus, at all events, no legal provision actually
supports the theory that the liability is condoned.

Relatedly, it should be clarified that there is no truth in Pascual’s postulation that the courts would be
depriving the electorate of their right to elect their officers if condonation were not to be sanctioned. In political
law, election pertains to the process by which a particular constituency chooses an individual to hold a public
office. In this jurisdiction, there is, again, no legal basis to conclude that election automatically implies
condonation. Neither is there any legal basis to say that every democratic and republican state has an
inherent regime of condonation. If condonation of an elective official’s administrative liability would perhaps be
allowed in this jurisdiction, then the same should have been provided by law under our governing legal
mechanisms. May it be at the time of Pascual or at present, by no means has it been shown that such a law,
whether in a constitutional or statutory provision, exists. Therefore, inferring from this manifest absence, it
cannot be said that the electorate’s will has been abdicated.

Equally infirm is Pascual’s proposition that the electorate, when re-electing a local official, are assumed
to have done so with knowledge of his life and character, and that they disregarded or forgave his faults or
misconduct, if he had been guilty of any. Suffice it to state that no such presumption exists in any statute or
procedural rule. Besides, it is contrary to human experience that the electorate would have full knowledge of
a public official’s misdeeds. The Ombudsman correctly points out the reality that most corrupt acts by public
officers are shrouded in secrecy, and concealed from the public. Misconduct committed by an elective
public official is easily covered up, and is almost always unknown to the electorate when they cast
their votes. At a conceptual level, condonation presupposes that the condoner has actual knowledge of what
is to be condoned. Thus, there could be no condonation of an act that is unknown. X x x.

That being said, this Court simply finds no legal authority to sustain the condonation doctrine in this
jurisdiction. As can be seen from this discourse, it was a doctrine from one class of US rulings way back in
1959 and thus out of touch from – and now rendered obsolete by – the current legal regime. In consequence,
it is high time for this Court to abandon the condonation doctrine that originated from Pascual, and affirmed in
the cases following the same, such as Aguinaldo, Salalima, Mayor Garcia, and Governor Garcia, Jr. which
were all relied upon by the CA.

It should, however, be clarified that this Court’s abandonment of the condonation doctrine should be
prospective in application for the reason that judicial decisions applying or interpreting the laws or the
Constitution, until reversed, shall form part of the Philippine legal system. Unto this Court devolves the sole
authority to interpret what the Constitution means, and all persons are bound to follow its interpretation. X x x

Hence, while the future may ultimately uncover a doctrine’s error, it should be, as a general rule,
recognized as “good law” prior to its abandonment. Consequently, the people’s reliance thereupon should be
respected. X x x

Indeed, the lessons of history teach us that institutions can greatly benefit from hindsight and rectify its
ensuing course. Thus, while it is truly perplexing to think that a doctrine which is barren of legal anchorage

72
was able to endure in our jurisprudence for a considerable length of time, this Court, under a new membership,
takes up the cudgels and now abandons the condonation doctrine. (Conchita Carpio Morales v. Court of
Appeals [Sixth Division], GR Nos. 217126-27, November 10, 2015, En Banc [Perlas-Bernabe])

ELECTION LAWS

Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law,
who are at least eighteen years of age, and who shall have resided in the Philippines for at least one
year and in the place wherein they propose to vote for at least six months preceding the election. No
literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage.
(Section 1, Article V, 1987 Constitution)

The Right of Suffrage

Kabataan Party-list, et al., v. Commission on Elections, G.R. No. 221318, December 16, 2015, En Banc
(Perlas-Bernabe)

Held:

“With these considerations in mind, petitioners’ claim that biometrics validation imposed under RA
10367, and implemented under COMELEC Resolution Nos. 9721, 9863, 10013, must perforce fail. To
reiterate, this requirement is not a “qualification” to the exercise of the right of suffrage, but a mere aspect of
the registration procedure, of which the State has the right to reasonably regulate. It was institutionalized
conformant to the limitations of the 1987 Constitution and is a mere complement to the Existing Voter’s
Registration Act of 1996. X x x

“Thus, unless it is shown that a registration requirement rises to the level of a literacy, property or other
substantive requirement as contemplated by the Framers of the Constitution – that is, one which propagates a
socio-economic standard which is bereft of any rational basis to a person’s ability to intelligently cast his vote
and to further the public good – the same cannot be struck down as unconstitutional, as in this case.”

Applying the Strict Scrutiny Test to RA 10367

“Petitioners assert that biometrics validation gravely violates the Constitution, considering that, applying
the strict scrutiny test, it is not poised with compelling reason for state regulation and hence, an unreasonable
deprivation of the right to suffrage. X x x

“Contrary to petitioners’ assertion, the regulation passes the strict scrutiny test.

“In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for
determining the quality and the amount of governmental interest brought to justify the regulation of
fundamental freedoms. Strict scrutiny is used today to test the validity of laws dealing with the regulation of
speech, gender, or race as well as other fundamental rights as expansion from its earlier applications to equal
protection. X x x the United States Supreme Court has expanded the scope of scrutiny to protect fundamental
rights such as suffrage, judicial access, and interstate travel.

“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, and the
burden befalls upon the State to prove the same.

“In this case, respondents have shown that the biometrics validation requirement under RA 10367
advances a compelling state interest. It was precisely designed to facilitate the conduct of orderly, honest, and
credible elections by containing – if not eliminating, the perennial problem of having flying voters, as well as
dead and multiple registrants. X x x the objective of the law was to cleanse the national voter registry so as to

73
eliminate electoral fraud and ensure that the results of the elections were truly reflective of the genuine will of
the people. The foregoing consideration is unquestionably a compelling state interest.

“Also, it was shown that the regulation is the least restrictive means for achieving the above-said
interest. Section 6 of Resolution 9721 sets the procedure for biometrics validation x x x. It is, in effect, a
manner of updating one’s registration for those already registered under RA 8189, or a first-time registration for
new registrants. The re-registration process is amply justified by the fact that the government is adopting a
novel technology like biometrics in order to address the bane of electoral fraud that has enduringly plagued the
electoral exercises in this country. While registrants may be inconvenienced by waiting in long lines or by not
being accommodated on certain days due to heavy volume of work, these are typical burdens of voting that are
remedied by bureaucratic improvements to be implemented by the COMELEC as an administrative institution.
By and large, the COMELEC has not turned a blind eye to these realities. It has tried to account for the
exigencies x x x.

“That being said, the assailed regulation on the right to suffrage was sufficiently justified as it was
indeed narrowly tailored to achieve the compelling state interest of establishing a clean, complete, permanent
and updated list of voters, and was demonstrably the least restrictive means in promoting that interest.

Makalintal v. COMELEC

There is now an exception to the residence qualification of a voter under Section 1, Article V on
Suffrage of the Constitution, and that is, with respect to overseas Filipinos, permanent residents of a foreign
country under R.A. No. 9189 (The Absentee Voters Act of 2003). Under said Act, overseas Filipinos,
permanent residents in a foreign country, are now allowed to register and vote before our embassies and
consulates abroad for President, Vice-President, Senators, and Party-list Representative. There is a clear
intent on the part of the framers of our Constitution to enfranchise as many of our overseas countrymen in
recognition of their tremendous contributions to the national economy in terms of dollar remittances. It is but
fair that their voices should be heard on who should be our national leaders.

Effect of Filing Certificate of Candidacy

What is the purpose of the law in requiring the filing of certificate of candidacy and in fixing the time
limit therefor?

The evident purpose of the law in requiring the filing of certificate of candidacy and in fixing the time
limit therefor are: (a) to enable the voters to know, at least sixty days before the regular election, the
candidates among whom they are to make the choice, and (b) to avoid confusion and inconvenience in the
tabulation of the votes cast. For if the law did not confine the choice or election by the voters to the duly
registered candidates, there might be as many persons voted for as there are voters, and votes might be cast
even for unknown or fictitious persons as a mark to identify the votes in favor of a candidate for another office
in the same election. (Miranda v. Abaya, G.R. No. 136351, July 28, 1999)

May a disqualified candidate and whose certificate of candidacy was denied due course and/or
canceled by the COMELEC be validly substituted?

Even on the most basic and fundamental principles, it is readily understood that the concept of a
substitute presupposes the existence of the person to be substituted, for how can a person take the place of
somebody who does not exist or who never was. The Court has no other choice but to rule that in all instances
enumerated in Section 77 of the Omnibus Election Code, the existence of a valid certificate of candidacy
seasonably filed is a requisite sine qua non.

All told, a disqualified candidate may only be substituted if he had a valid certificate of candidacy in the
first place because, if the disqualified candidate did not have a valid and seasonably filed certificate of
candidacy, he is and was not a candidate at all. If a person was not a candidate, he cannot be substituted
under Section 77 of the Code. (Miranda v. Abaya, G.R. No. 136351, July 28, 1999, en Banc [Melo])

Effect of Disqualification Case

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Abandoning the Doctrine of the Rejection of the Second-Placer

Resolving the third issue necessitates revisiting Topacio v. Paredes which is the jurisprudential spring
of the principle that a second-placer cannot be proclaimed as the winner in an election contest. This doctrine
must be re-examined and its soundness once again put to the test to address the ever-recurring issue that a
second placer who loses to an ineligible candidate cannot be proclaimed as the winner in the elections.

Xxx

The often-quoted phrase in Topacio v. Paredes is that “the wreath of victory cannot be transferred from
an ineligible candidate to any other candidate when the sole question is the eligibility of the one receiving a
plurality of the legally cast ballots.”

This case is not even the ratio decidendi; it is a mere obiter dictum. The Court was comparing “the
effect of a decision that a candidate is not entitled to the office because of fraud or irregularities in the elections
x x x [with] that produced by declaring a person ineligible to hold such an office.”

Xxx

On closer scrutiny, the phrase relied upon by a host of decisions does not even have a legal basis to
stand on. It was a mere pronouncement of the Court comparing one process with another and explaining the
effects thereof. As an independent statement, it is even illogical.

Xxx

What prevents the transfer of the wreath of victory from the ineligible candidate to another candidate?

When the issue being decided upon by the Court is the eligibility of the one receiving a plurality of the
legally cast ballots and ineligibility is thereafter established, what stops the Court from adjudging another
eligible candidate who received the next highest number of votes as the winner and bestowing upon him that
“wreath?”

An ineligible candidate who receives the highest number of votes is a wrongful winner. By express
legal mandate, he could not even have been a candidate in the first place, but by virtue of the lack of material
time or any other intervening circumstances, his ineligibility might not have been passed upon prior to election
date. Consequently, he may have had the opportunity to hold himself out to the electorate as a legitimate and
duly qualified candidate. However, notwithstanding the outcome of the elections, his ineligibility as a candidate
remains unchanged. Ineligibility does not only pertain to his qualifications as a candidate but necessarily
affects his right to hold public office. The number of ballots cast in his favor cannot cure the defect of failure to
qualify with the substantive legal requirements of eligibility to run for public office. (Casan Macode Maquiling
v. COMELEC, et al., G.R. No. 195649, April 16, 2013, En Banc [Sereno, CJ])

With Arnado’s disqualification, Maquiling then becomes the winner in the election as he obtained the
highest number of votes from among the qualified candidates. We have ruled in the recent cases of Aratea v.
COMELEC and Jalosjos v. COMELEC that a void COC cannot produce any legal effect. Thus, the votes cast
in favor of the ineligible candidate are not considered at all in determining the winner of an election.

Even when the votes for the ineligible candidate are disregarded, the will of the electorate is still
respected, and even more so. The votes cast in favor of an ineligible candidate do not constitute the sole and
total expression of the sovereign voice. The votes cast in favor of eligible and legitimate candidates form part
of that voice and must also be respected.

As in any contest, elections are governed by rules that determine the qualifications and disqualifications
of those who are allowed to participate as players. When there are participants who turn out to be ineligible,

75
their victory is voided and the laurel is awarded to the next in rank who does not possess any of the
disqualifications nor lacks any of the qualifications set in the rules to be eligible as candidates.

Xxx

The electorate’s awareness of the candidate’s disqualifications is not a prerequisite for the
disqualification to attach to the candidate. The very existence of a disqualifying circumstance makes the
candidate ineligible. Knowledge by the electorate of a candidate’s disqualification is not necessary before a
qualified candidate who placed second to a disqualified one can be proclaimed as the winner. The second-
placer in the vote count is actually the first-placer among the qualified candidates.

That the disqualified candidate has already been proclaimed and has assumed office is of no moment.
The subsequent disqualifications based on a substantive ground that existed prior to the filing of the certificate
of candidacy voids not only the COC but the proclamation.

Xxx

The disqualifying circumstance surrounding Arnado’s candidacy involves his citizenship. It does not
involve the commission of election offenses as provided for in the first sentence of Section 68 of the Omnibus
Election Code, the effect of which is to disqualify the individual from continuing as a candidate, or if has already
been elected, from holding the office.

The disqualifying circumstance affecting Arnado is his citizenship. X x x Arnado was both a Filipino
and an American citizen when he filed his certificate of candidacy. He was a dual citizen disqualified to run for
public office based on Section 40(d) of the Local Government Code.

With Arnado being barred from even becoming a candidate, his certificate of candidacy is thus
rendered void from the beginning. It could not have produced any other legal effect x x x.

To hold that such proclamation is valid is to negate the prohibitory character of the disqualification
which Arnado possessed even prior to the filing of the certificate of candidacy. The affirmation of Arnado’s
disqualification, although made long after the elections, reaches back to the filing of the certificate of
candidacy. Arnado is declared to be not a candidate at all in the May 2010 elections.

Arnado being not a candidate, the votes cast in his favor should not have been counted. This leaves
Maquiling as the qualified candidate who obtained the highest number of votes therefore, the rule on
succession under the Local Government Code will not apply. (Casan Macode Maquiling v. COMELEC, et
al., G.R. No. 195649, April 16, 2013, En Banc [Sereno, CJ])

THE LAW OF PUBLIC CORPORATIONS

Local Governments are the Territorial and Political Subdivisions of the Republic of the Philippines

The territorial and political subdivisions of the Republic of the Philippines are the provinces,
cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the
Cordilleras as hereinafter provided. (Section 1, Article X, 1987 Constitution)

Autonomous Regions

There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras
consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive
historical and cultural heritage, economic and social structures, and other relevant characteristics within
the framework of this Constitution and the national sovereignty as well as territorial integrity of the
Republic of the Philippines. (Section 15, Article X, 1987 Constitution)

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 The Congress shall enact an organic act for each autonomous region with the assistance and
participation of the regional consultative commission composed of representatives appointed by the
President from a list of nominees from multisectoral bodies. The organic act shall define the basic
structure of government for the region consisting of the executive department and legislative assembly,
both of which shall be elective and representative of the constituent political units. The organic acts
shall likewise provide for special courts with personal, family and property law jurisdiction consistent
with the provisions of this Constitution and national laws.

The creation of the autonomous region shall be effective when approved by majority of the
votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces,
cities, and geographical areas voting favorably in such plebiscite shall be included in the autonomous
region. (Sec. 18, Art. X, 1987 Constitution)

The Province of North Cotabato v. The Government of the Republic of the Philippines Peace Panel,
G.R. No. 183591, 568 SCRA 402, October 14, 2008, En Banc (Carpio-Morales)

Creation of Local Governments

No province, city, municipality, or barangay may be created, divided, merged, abolished, or its
boundary substantially altered, except in accordance with the criteria established in the local
government code and subject to approval by a majority of the votes cast in a plebiscite in the political
units directly affected. (Section 10, Article X, 1987 Constitution)

Rodolfo G. Navarro, et al. v. Executive Secretary Eduardo Ermita, et al., G.R. No. 180050, 12 May 2010,
En Banc (Peralta)

Section 7, Chapter 2 paragraph (c) of the Local Government Code (LGC), provides that the land area
must be contiguous, unless it comprises two (2) or more islands, or is separated by a local government unit
independent of the others; properly identified by metes and bounds with technical descriptions; and sufficient to
provide for such basic services and facilities to meet the requirements of its populace.

Therefore, there are two requirements for land area: (1) the land area must be contiguous; and (2) the
land area must be sufficient to provide for such basic services and facilities to meet the requirements of its
populace. A sufficient land area in the creation of a province is at least 2,000 square kilometers, as provided
by Section 461 of LGC.

Hence x x x the requirement of a contiguous territory and the requirement of a land area of at least
2,000 square kilometers are distinct and separate requirements for land area under paragraph (a) (i) of Section
461 and Section 7 (c) of LGC.

However, paragraph (b) of Section 461 provides two instances of exemption from the requirement of
territorial contiguity, to wit, “the territory need not be contiguous if it comprises two (2) or more islands, or is
separated by a chartered city or cities which do not contribute to the income of the province.”

The exemption above pertains only to the requirement of territorial contiguity. It clearly states that the
requirement of territorial contiguity may be dispensed with in the case of a province comprising two or more
islands, or is separated by a chartered city or cities which do not contribute to the income of the province.

Nowhere in paragraph (b) is it expressly stated or may it be implied that when a province is composed
of two or more islands, or when the territory of a province is separated by a chartered city or cities, such
province need not comply with the land area requirement of at least 2,000 square kilometers or the
requirement in paragraph (a) (i) of Section 461 of LGC.

Where the law is free from ambiguity, the court may not introduce exceptions or conditions where none
is provided from considerations of convenience, public welfare, or for any laudable purpose; neither may it
engraft into the law qualifications not contemplated, nor construe its provisions by taking into account
questions of expediency, good faith, practical utility and other similar reasons so as to relax non-compliance
77
therewith. Where the law speaks in clear and categorical language, there is no room for interpretation, but only
for application.

Powers of Local Governments

Corporate Powers of Local Governments

To be considered as a valid police power, an ordinance must pass a two-pronged test: the formal (i.e.,
whether the ordinance is enacted within the corporate powers of the local government unit, and whether it is
passed in accordance with the procedure prescribed by law); and the substantive (i.e., involving inherent merit,
like the conformity of the ordinance with the limitations under the Constitution and the statutes, as well as with
the requirements of fairness and reason, and its consistency with public policy).

The formalities in enacting an ordinance are laid down in Section 53 and Section 54 of The Local
Government Code. These provisions require the ordinance to be passed by the majority of the members of the
sanggunian concerned, and presented to the mayor for approval. X x x.

The corporate powers of the local government unit confer the basic authority to enact legislation that
may interfere with personal liberty, property, lawful businesses and occupations in order to promote the
general welfare. Such legislative powers spring from the delegation thereof by Congress through either the
Local Government Code or a special law. The General Welfare Clause in Section 16 of the Local Government
Code embodies the legislative grant that enables the local government unit to effectively accomplish and carry
out the declared objects of its creation, and to promote and maintain local autonomy. X x x.

Section 16 comprehends two branches of delegated powers, namely: the general legislative power and
the police power proper. General legislative power refers to the power delegated by Congress to the local
legislative body, or the Sangguniang Panlungsod in the case of Davao City, to enable the local legislative body
to enact ordnances and make regulations. This power is limited in that the enacted ordinances must not be
repugnant to law, and the power must be exercised to effectuate and discharge the powers and duties legally
conferred to the local legislative body. The police power, on the other hand, authorizes the local government
unit to enact ordinances necessary and proper for the health and safety, prosperity, morals, peace, good order,
comfort, and convenience of the local government unit and its constituents, and for the protection of their
property.

Section 458 of the Local Government Code explicitly vests the local government unit with the authority
to enact ordinances aimed at promoting the general welfare x x x.

In terms of the right of the citizens to health and to a balanced and healthful ecology, the local
government unit takes its cue from Section 15 and Section 16, Article II of the 1987 Constitution. Following the
provisions of the Local Government Code and the Constitution, the acts of the local government unit designed
to ensure the health and lives of its constituents and to promote a balanced and healthful ecology are well
within the corporate powers vested in the local government unit. X x x. (Wilfredo Mosqueda, et al. v.
Pilipino Banana Growers & Exporters Association, et al., G.R. No. 189185, August 16, 2016, En Banc
[Bersamin])

Requisites of a Valid Ordinance

A valid ordinance must not only be enacted within the corporate powers of the local government and
passed according to the procedure prescribed by law. In order to declare it as a valid piece of local legislation,
it must also comply with the following substantive requirements, namely: (1) it must not contravene the
Constitution or any statute; (2) it must be fair, not oppressive; (3) it must not be partial or discriminatory; (4) it
must not prohibit but may regulate trade; (5) it must be general and consistent with public policy; and (6) it
must not be unreasonable. (Wilfredo Mosqueda, et al. v. Pilipino Banana Growers & Exporters
Association, et al., G.R. No. 189185, August 16, 2016, En Banc [Bersamin])

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Ordinance No. 0309-07 of Davao City Prohibiting Aerial Spraying in That City Declared Ultra Vires

Wilfredo Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, et al., G.R. No. 189185,
August 16, 2016, En Banc (Bersamin)

Held:

The function of pesticides control, regulation and development is within the jurisdiction of the
FPA (Fertilizer and Pesticide Authority) under Presidential Decree No. 1144. The FPA was established
in recognition of the need for a technically oriented government entity that will protect the public from
the risks inherent in the use of pesticides. To perform its mandate, it was given under Section 6 of
Presidential Decree No. 1144 the following powers and functions with respect to pesticides and other
agricultural chemicals x x x.

Evidently, the FPA was responsible for ensuring the compatibility between the usage and the
application of pesticides in agricultural activities and the demands for human health and environmental
safety. This responsibility includes not only the identification of safe and unsafe pesticides, but also the
prescription of the safe modes of application in keeping with the standard of good agricultural practices.

On the other hand, the enumerated devolved functions to the local government units do not
include the regulation and control of pesticides and other agricultural chemicals. X x x

In enacting Ordinance No. 0309-07 without the inherent and explicit authority to do so, the City
of Davao performed an ultra vires act. As a local government unit, the City of Davao could act only as
an agent of Congress, and its every act should always conform to and reflect the will of its principal x x
x.

For sure, every local government unit only derives its legislative authority from Congress. In no
instance can the local government unit rise above its source of authority. As such, its ordinance cannot
run against or contravene existing laws, precisely because its authority is only by virtue of the valid
delegation from Congress. X x x

Moreover, Ordinance No. 0309-07 proposes to prohibit an activity already covered by the
jurisdiction of the FPA, which has issued its own regulations under its Memorandum Circular x x x.

Xxx

Devoid of the specific delegation to its legislative body, the City of Davao exceeded its
delegated authority to enact Ordinance No. 0309-07. Hence, Ordinance No. 0309-07 must be struck
down also for being an ultra vires act on the part of the Sangguning Bayan of Davao City.

We must emphasize that our ruling herein does not seek to deprive the LGUs their right to
regulate activities within their jurisdiction. They are empowered under Section 16 of the Local
Government Code to promote the general welfare of the people through regulatory, not prohibitive,
ordinances that conform with the policy directions of the National Government. Ordinance No. 0309-07
failed to pass this test as it contravenes the specific regulatory policy on aerial spraying in banana
plantations on a nationwide scale of the National Government, through the FPA.

Requisites for a Proper Exercise by Local Governments of Police Power

In the State’s exercise of police power, the property rights of individuals may be subjected to restraints
and burdens in order to fulfill the objectives of the Government. A local government unit is considered to have
properly exercised its police power only if it satisfies the following requisites, to wit: (1) the interests of the
public generally, as distinguished from those of a particular class, require the interference of the State; and (2)
the means employed are reasonably necessary for the attainment of the object sought to be accomplished and

79
not unduly oppressive. The first requirement refers to the Equal Protection Clause of the Constitution, the
second, to the Due Process Clause of the Constitution.

Substantive due process requires that a valid ordinance must have a sufficient justification for the
Government’s action. This means that in exercising police power the local government unit must not arbitrarily,
whimsically or despotically enact the ordinance regardless of its salutary purpose. So long as the ordinance
realistically serves a legitimate public purpose, and it employs means that are reasonably necessary to achieve
that purpose without unduly oppressing the individuals regulated, the ordnances must survive a due process
challenge. (Wilfredo Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, et al., G.R. No.
189185, August 16, 2016, En Banc [Bersamin])

Vacancies and Succession in the Local Governments

Farinas v. Barba

Limitation on Term of Office of Local Elective Officials

The term of office of elective local officials, except barangay officials, which shall be determined
by law, shall be three years and no such official shall serve for more than three consecutive terms.
Voluntary renunciation of office for any length of time shall not be considered as an interruption in the
continuity of his service for the full term for which he was elected. (Section 8, Article X, 1987
Constitution)

The term limit for elective local officials must be taken to refer to the right to be elected as well as the
right to serve in the same elective position. Consequently, it is not enough that an individual has served three
consecutive terms in an elective local office, he must also have been elected to the same position for the same
number of times before the disqualification can apply. (Borja, Jr. v. COMELEC and Capco, Jr., G.R. No.
133495, Sept. 3, 1998, 295 SCRA 157, En Banc [Mendoza])

The two conditions for the application of the disqualification provision are: (1) that the local official
concerned has been elected three consecutive times for the same position; and (2) that he has fully served
three consecutive terms. Absent one or both of these two conditions, the disqualification may not yet apply.
(Borja, Jr. v. COMELEC and Capco, Jr., G.R. No. 133495, Sept. 3, 1998, 295 SCRA 157, En Banc
[Mendoza])

What are the policies embodied in the constitutional provision barring elective local officials, with the
exception of barangay officials, from serving more than three consecutive terms?

To prevent the establishment of political dynasties is not the only policy embodied in the constitutional
provision in question (barring elective local officials, with the exception of barangay officials, from serving more
than three consecutive terms). The other policy is that of enhancing the freedom of choice of the people. To
consider, therefore, only stay in office regardless of how the official concerned came to that office – whether by
election or by succession by operation of law – would be to disregard one of the purposes of the constitutional
provision in question. (Borja, Jr. v. COMELEC and Capco, Jr., G.R. No. 133495, Sept. 3, 1998, 295 SCRA
157, En Banc [Mendoza])

Socrates v. COMELEC (November 12, 2002)

What is prohibited by the Constitution is after serving three (3) consecutive terms to the same position a
local elective official shall run for immediate reelection. Any subsequent reelection, like a recall election, is no
longer covered by the provision, for as long as it is not an immediate reelection after serving the three (3)
consecutive terms.

Mendoza v. COMELEC (December 17, 2002)

Service of the recall term, since it is less than three (3) years, is not to be considered as one full term
for purposes of applying the disqualification under Section 8, Article X of the Constitution.
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Is the preventive suspension of an elected local government official an interruption of his term of office
for purposes of the three-term limit rule?

The “interruption” of a term exempting an elective official from the three-term limit rule is one that
involves no less than the involuntary loss of title to office. The elective official must have involuntarily left his
office for a length of time, however short, for an effective interruption to occur. Thus, based on this standard,
loss of office by operation of law, being involuntary, is an effective interruption of service within a term. On the
other hand, temporary inability or disqualification to exercise the functions of an elective post, even if
involuntary, should not be considered an effective interruption of a term because it does not involve the loss of
title to office or at least an effective break from holding office; the office holder, while retaining title, is simply
barred from exercising the functions of his office for a reason provided by law.

An interruption occurs when the term is broken because the office holder lost the right to hold on to his
office, and cannot be equated with the failure to render service. The latter occurs during an office holder’s term
when he retains title to the office but cannot exercise his functions for reasons established by law. Of course,
the term “failure to serve” cannot be used once the right to office is lost; without the right to hold office or serve,
then no service can be rendered so that none is really lost.

To put it differently, Sec. 8, Art. X fixes an elective official’s term of office and limits his stay in office to
three consecutive terms as an inflexible rule that is stressed no less, by citing involuntary renunciation as an
example of a circumvention. The provision should be read in the context of interruption of term, not in the
context of interrupting the full continuity of the exercise of the powers of the elective position. The “voluntary
renunciation” it speaks of refers only to the elective official’s voluntary relinquishment of office and loss of title
to his office. It does not speak of the temporary “cessation of the exercise of power or authority” that may
occur for various reasons, with preventive suspension being only one of them.

In all cases of preventive suspension, the suspended official is barred from performing the functions of
his office and does not receive salary in the meanwhile, but does not vacate and lose title to his office; loss of
office is a consequence that only results upon an eventual finding of guilt or liability. (Aldovino, Jr. v.
COMELEC, G.R. No. 184836, Dec. 23, 2009, En Banc [Brion])

Recall

R.A. No. 9244 (February 18, 2004) – An Act Abolishing the Preparatory Recall Assembly as a Mode of
Initiating Recall

Claudio v. COMELEC

PUBLIC INTERNATIONAL LAW

Jus Cogens Norms and Erga Omnes Obligations

Just cogens literally means “compelling law.” As defined, it means a peremptory (mandatory) norm of
general international law which is recognized and accepted by the international community of States as a norm
that does not permit of any derogation and which can be replaced or modified only by a subsequent norm of
the same character.

Under the Vienna Convention on the Law of Treaties, a treaty that violates a jus cogens norm will have
to be invalidated.

Erga omnes literally means “in relation to the whole.” An erga omnes refers to an obligation of a State
towards the international community of States as a whole.

Between an erga omnes obligation and an obligation of a State towards another State pursuant to a
treaty, an erga omnes is superior.
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 However, in Vinuya, et. al. v. The Honorable Executive Secretary Alberto G. Romulo, et. al., (G.R.
No. 162230, April 28. 2010, En Banc [Del Castillo]), the SC clarified that there is yet no consensus on the
proper criteria for identifying peremptory norms. It held:

Even the invocation of jus cogens norms and erga omnes obligations will not alter this analysis.
Even if we sidestep the question of whether jus cogens norms existed in 1951, petitioners have not
deigned to show that the crimes committed by the Japanese army violated jus cogens prohibitions at
the time the Treaty of Peace was signed, or that the duty to prosecute perpetrators of international
crimes is an erga omnes obligation or has attained the status of jus cogens.

The term erga omnes (Latin: in relation to everyone) in international law has been used as a
legal term describing obligations owed by States towards the community of states as a whole. The
concept was recognized by the ICJ in Barcelona Traction x x x.

Such obligations derive, for example, in contemporary international law, from the outlawing of
acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of
the human person, including protection from slavery and racial discrimination. Some of the
corresponding rights of protection have entered into the body of general international law … others are
conferred by international instruments of a universal or quasi-universal character.

The Latin phrase, ‘erga omnes,’ has since become one of the rallying cries of those sharing a
belief in the emergence of a value-based international public order. However, as is so often the case,
the reality is neither so clear nor so bright. Whatever the relevance of obligations erga omnes as a
legal concept, its full potential remains to be realized in practice.

The term is closely connected with the international law concept of jus cogens. In international
law, the term “jus cogens” (literally, “compelling law”) refers to norms that command peremptory
authority, superseding conflicting treaties and custom. Jus cogens norms are considered peremptory in
the sense that they are mandatory, do not admit derogation, and can be modified only by general
international norms of equivalent authority.

Early strains of the jus cogens doctrine have existed since the 1700s, but peremptory norms
began to attract greater scholarly attention with the publication of Alfred von Verdross’s influential 1937
article, Forbidden Treaties in International Law. The recognition of jus cogens gained even more force
in the 1050s and 1960s with the ILC’s preparation of the Vienna Convention on the Law of Treaties
(VCLT). Though there was a consensus that certain international norms had attained the status of jus
cogens, the ILC was unable to reach a consensus on the proper criteria for identifying peremptory
norms.

` After an extended debate over these and other theories of jus cogens, the ILC concluded
ruefully in 1963 that “there is not as yet any generally accepted criterion by which to identify a general
rule of international law as having the character of jus cogens.” In a commentary accompanying the
draft convention, the ILC indicated that “the prudent course seems to be to x x x leave the full content of
this rule to be worked out in State practice and in the jurisprudence of international tribunals.” Thus,
while the existence of jus cogens in international law is undisputed, no consensus exists on its
substance, beyond a tiny core of principles and rules.

The Doctrine of Incorporation

The Province of North Cotabato v. The Government of the Republic of the Philippines Peace Panel,
G.R. No. 183591, 568 SCRA 402, October 14, 2008, En Banc (Carpio-Morales)

The right to self-determination of peoples has gone beyond mere treaty or convention; in fact, it has
now been elevated into the status of a generally accepted of international law. However, as normally

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understood in international law, this right to self-determination merely refers to right to internal self-
determination, i.e., a people’s pursuit of its own political, economic, social and cultural development within the
framework of an existing State. The right to external self-determination, which consists of the assertion of a
right to unilateral secession, may be invoked only in extreme cases, i.e., in case of people under colonial rule,
or in case of people under foreign domination or exploitation outside of a colonial context..

The State

The Concept of an Association or Associated State

An association is formed when two states of unequal power voluntarily establish durable links. In the
basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while
maintaining its international status as a state. Free associations represent a middle ground between
integration and independence. Examples of states which maintain an associated state relationship with the
United States are the newly-formed states of Micronesia and the Marshall Islands in the Pacific.

In US constitutional and international practice, free association is understood as an international

association between sovereigns. The Compact of Free Association is a treaty which is subordinate to the
associated nation’s national constitution, and each party may terminate the association consistent with the right
of independence. It has been said that, with the admission of the US-associated states to the UN in 1990, the
UN recognized that the American model of free association is actually based on an underlying status of
independence.

In international practice, the “associated state” arrangement has usually been used as a transitional
device of former colonies on their way to full independence. Examples of states that have passed through the
status of associated states as a transitional phase are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia,
St. Vincent and Grenada. All have since become independent states. (The Province of North Cotabato v.
The Government of the Republic of the Philippines Peace Panel, G.R. No. 183591, 568 SCRA 402,
October 14, 2008, En Banc [Carpio-Morales])

The Concept of “Association” is not recognized under the 1987 Philippine Constitution

The 1987 Constitution provides that no province, city, or municipality, not even the Autonomous Region
for Muslim Mindanao (ARMM) is recognized under our laws as having an “associative” relationship with the
national government. Indeed, the concept implies powers that go beyond anything ever granted by the
Constitution to any local or regional government. It also implies the recognition of the associated entity as a
state. The Constitution, however, does not contemplate any state in this jurisdiction other than the Philippine
State, much less does it provide for a transitory status that aims to prepare any part of Philippine territory for
independence. (The Province of North Cotabato v. The Government of the Republic of the Philippines
Peace Panel, G.R. No. 183591, 568 SCRA 402, October 14, 2008, En Banc [Carpio-Morales])

Sovereignty as an Element of a State

Is sovereignty really absolute and all-encompassing? If not, what are its restrictions and limitations?

While sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level,
it is however subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly or
impliedly, as a member of the family of nations. By the doctrine of incorporation, the country is bound by
generally accepted principles of international law, which are considered to be automatically part of our own
laws. One of the oldest and most fundamental rules in international law is pacta sunt servanda – international
agreements must be performed in good faith. A state which has contracted valid international obligations is
bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of the
obligations.

By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their
voluntary act, nations may surrender some aspects of their state power in exchange for greater benefits
83
granted by or derived from a convention or pact. After all, states, like individuals, live with coequals, and in
pursuit of mutually covenanted objectives and benefits, they also commonly agree to limit the exercise of their
otherwise absolute rights. Thus, treaties have been used to record agreements between States concerning
such widely diverse matters as, for example, the lease of naval bases, the sale or cession of territory, the
termination of war, the regulation of conduct of hostilities, the formation of alliances, the regulation of
commercial relations, the settling of claims, the laying down of rules governing conduct in peace and the
establishment of international organizations. The sovereignty of a state therefore cannot in fact and in reality
be considered absolute. Certain restrictions enter into the picture: (1) limitations imposed by the very nature of
membership in the family of nations and (2) limitations imposed by treaty stipulations. (Tanada v. Angara, 272
SCRA 18, May 2, 1997 [Panganiban])

Territory of States

Professor Merlin M. Magallona, et al. v. Hon. Eduardo Ermita, et al., G.R. No. 187167, 655 SCRA 476,
August 16, 2011, En Banc (Carpio)

Diplomatic and Consular Immunities and Privileges

Liang v. People, 323 SCRA 692 (2000); 355 SCRA 125 (2001) (Focus on Justice Puno’s Concurring
Opinion)

Extradition and Asylum

Nationality and Statelessness

Refugees

A refugee is a person who, owing to a well-founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group or political opinion, is outside the country of his
nationality and is unable or owing to such fear, is unwilling to avail himself of the protection of that country; or
who, not having a nationality and being outside the country of his former habitual residence, is unable or, or
owing to such fear, is unwilling to return to it. (Convention Relating to the Status of Refugees, Art. 1 A[2])
(Magallona, Fundamentals of Public International Law, 2005 Ed., p. 287)

The Non-Refoulement Principle

The right of a refugee not to be expelled or returned “in any manner whatsoever to the frontiers of
territories where his life or freedom would be threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion.” The prohibition of such expulsion or return
becomes an obligation of States parties to the Convention Relating to the Status of Refugees. (Magallona,
Fundamentals of Public International Law, 2005 Ed., p. 289)

The Law on Treaties

Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., G.R. No. 212426, January 12,
2016, En Banc (Sereno, CJ)

The Doctrine of State Responsibility to Aliens

An important premise for this doctrine to be validly invoked is that a State is under no legal obligation in
international law to admit an alien in its territory. However, the moment it admits an alien, it is duty-bound to
provide protection to that alien so that once the State is remiss in the performance of this duty and the alien
dies, or suffers injury or loss, this could lead to liability on the part of the State.

Requisites for this doctrine to apply:

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 1. An act or omission in violation of international law;
2. Attributable to the State;
3. Causing damage or injury to a third State directly, or indirectly, to a national of the third State.

Conditions for the enforcement of claims under this doctrine:

1. The nationality of the claim;

2. Exhaustion of local remedies;
3. No waiver;
4. No unreasonable delay in filing the claim; and
5. No improper conduct on the part of the injured alien.

International Humanitarian Law (IHL)

International humanitarian law is the branch of public international law which governs armed conflicts
to the end that the use of violence is limited and that human suffering is mitigated or reduced by regulating or
limiting the means of military operations and by protecting persons who do not or no longer participate in the
hostilities. (Magallona, Fundamentals of Public International Law, 2005 ed., p. 291)

International Humanitarian Law (IHL) encompasses both humanitarian principles and international
treaties that seek to save lives and alleviate suffering of combatants and noncombatants during armed conflict.
Its principal legal documents are the Geneva Conventions of 1949, four treaties signed by almost every
nation in the world. The Conventions define fundamental rights for combatants removed from the fighting due
to injury, illness, or capture, and for civilians. The 1977 Additional Protocols, which supplement the Geneva
Conventions, further expand those rights.

These are:

(1) Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field of August 12, 1949 (First Geneva Convention);
(2) Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea of August 12, 1949 (Second Geneva Convention);
(3) Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 (Third
Geneva convention);
(4) Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12,
1949 (Fourth Geneva Convention);
(5) Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection
of Victims of International Armed Conflicts (Protocol I) of 8 June 1977; and
(6) Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection
of Victims of Non-International Armed Conflicts (Protocol II) of 8 June 1977.

IHL is not concerned with the lawfulness or unlawfulness of armed conflict. In violation of the
prohibition against the threat or use of force under international law, a state may engage in armed attack
against another state, resulting in armed conflict between them. The application of IHL in their conflict pertains
solely to the fact of armed conflict as the use of force remains unlawful. Armed conflict, in which IHL properly
applies, may arise from a legitimate use of force as when a multinational force of UN members engages in
armed attack against a State by authority of the UN Security Council as an enforcement measure under Article
42 of the UN Charter. In either case, there will be victims of the conflict who must come under the protection of
IHL, and there may be methods of warfare which may come under the prohibition of IHL. Hence, the issue of
lawfulness or unlawfulness of the armed conflict is of no legal importance from the standpoint of IHL.
(Magallona, Fundamentals of Public International Law, 2005 ed., p. 293)

The Principle of Distinction

An important principle to be observed under IHL is the Principle of Distinction. Under this principle,
persons directly engaged in armed conflict must, at all times, distinguish between civilians and combatants;

85
between civilian objects and military objectives, so that only combatants and military objectives may be subject
of attack.

Categories of Armed Conflicts

1. International Armed Conflicts

2. Internal or Non-international Armed Conflicts
3. War of National Liberation

War of National Liberation

An armed conflict may be of such nature in which “peoples are fighting against colonial domination and
alien occupation and against racist regimes in the exercise of their right of self-determination.”

This conflict involving the right of peoples to self-determination is an international armed conflict. It is
so classified under Article I, paragraphs 3 and 4 of Protocol I. Under these provisions, this conflict which may
be referred to as “war of national liberation,” is included in the classification set out in Article 2 common to the
four Geneva Conventions of 1949 x x x. (Magallona, Fundamentals of Public International Law, 2005 ed.,
p. 307)

The International Criminal Court (ICC)

The Rome Statute

The Rome Statute established the International Criminal Court which “shall have the power to exercise
its jurisdiction over persons for the most serious crimes of international concern x x x and shall be
complementary to the national criminal jurisdictions.” (Article I, Rome Statute) Its jurisdiction covers the crime
of genocide, crimes against humanity, war crimes and the crime of aggression as defined in the Statute (Article
5, Rome Statute). The Statute was opened for signature by all States in Rome on July 17, 1988 and had
remained open for signature until December 31, 2000 at the United Nations Headquarters in New York. The
Philippines signed the Statute on December 28, 2000 x x x. Its provisions, however, require that it be subject
to ratification, acceptance or approval of the signatory states (Article 25, Rome Statute). (Pimentel, Jr. v.
Office of the Executive Secretary, 462 SCRA 622, July 6, 2005, En Banc [Puno])

What offenses fall under the jurisdiction of the International Criminal Court (ICC)?

The International Criminal Court (ICC) shall have the power to exercise jurisdiction over persons for the
most serious crimes of international concern. Its jurisdiction covers the crime of genocide, crimes against
humanity, war crimes and the crime of aggression as defined in the Statute (Article 5, Rome Statute).
(Pimentel, Jr. v. Office of the Executive Secretary, 462 SCRA 622, July 6, 2005, En Banc [Puno])

What is the Principle of Complementarity in the Statute of the International Criminal Court (ICC)?

The tenth preambular paragraph of the ICC Statute emphasizes that “the International Criminal Court x
x x shall be complementary to national criminal jurisdiction.” This principle becomes operative in Article 1 of
the Statute. This, however, has to be correlated with the sixth preambular paragraph of the Statute which
declares that “it is the duty of every State to exercise its criminal jurisdiction over those responsible for
international crimes.” The principle of complementarity produces a correlation of the ICC jurisdiction with that
of every state over international crimes under the ICC Statute.

The principle of complementarity gives primacy to national jurisdiction x x x.

The principle of ne bis in idem in Article 20, paragraph 3, of ICC Statute strengthens complementarity,
thus: Unless the proceedings in the national court is for the purpose of shielding the person concerned from
liability, or not conducted independently or impartially, “no person who has been tried by another court for

86
conduct … [constituting crimes within its jurisdiction] shall be tried by the Court with respect to the same
conduct x x x.” (Magallona, Fundamentals of Public International Law [2005 ed.])

The Law of the Sea

The international law of the sea is generally defined as “a body of treaty rules and customary norms
governing the uses of the sea, the exploitation of its resources, and the exercise of jurisdiction over maritime
regimes. It is a branch of public international law, regulating the relations of states with respect to the uses of
the oceans.” (Merlin M. Magallona, A Primer on the Law of the Sea, 1997, p. 1) The UNCLOS is a multilateral
treaty which was opened for signature on December 10, 1982 at Montego Bay, Jamaica. It was ratified by the
Philippines in 1984 but came into force on November 16, 1994 upon the submission of the 60th ratification.

The UNCLOS is a product of international negotiation that seeks to balance State sovereignty (mare
clausum) and the principle of freedom of the high seas (mare liberum). The freedom to use the world’s marine
waters is one of the oldest customary principle of international law (Anne Bardin, “Coastal State’s Jurisdiction
Over Foreign Vessels” 14 Pace Int’l. Rev. 27, 28 [2002]). The UNCLOS gives to the coastal State sovereign
rights in varying degrees over the different zones of the sea which are: 1) internal waters, 2) territorial sea, 3)
contiguous zone, 4) exclusive economic zone, and 5) the high seas. It also gives coastal States more or less
jurisdiction over foreign vessels depending on where the vessel is located (Id. At 29).

Insofar as the internal waters and territorial sea is concerned, the Coastal States exercises sovereignty,
subject to the UNCLOS and other rules of international law. Such sovereignty extends to the air apace over
the territorial sea as well as to its bed and subsoil (Art. 2, UNCLOS). (Most Rev. Pedro D. Arigo, et al. v.
Scott H. Swift, et al., G.R. No. 206510, September 16, 2014, En Banc [Villarama, Jr.])

International Environmental Law

Background Information

The Convention on Biological Diversity (CBD)

On December 29, 1993, the Convention on Biological Diversity (CBD) came into force. This multilateral
treaty recognized that “modern biotechnology has great potential for human well-being if developed and used
with adequate safety measures for the environment and human health.” Its main objectives, as spelled out in
Article I, are the “conservation of biological diversity, the sustainable use of its components and the fair and
equitable sharing of the benefits arising out of the utilization of genetic resources.” (International Service for
the Acquisition of Agri-biotech Applications, Inc. v. Greenpeace Southeast Asia (Philippines), et al., GR
No. 209271, December 8, 2015, En Banc [Villarama])
The Cartagena Protocol

In January 2000, an agreement was reached on the Cartagena Protocol on Biosafety (Cartagena
Protocol), a supplemental to the CBD. The Cartagena Protocol aims “to contribute to ensuring an adequate
level of the safe transfer, handling and use of living modified organisms resulting from modern biotechnology
that may have adverse effects on the conservation and sustainable use of biological diversity, taking into
account risks to human health, and specifically focusing on transboundary movements.”

On May 24, 2000, the Philippines signed the Cartagena Protocol, which came into force on September
11, 2003. On August 14, 2006, the Philippine Senate adopted Senate Resolution No. 92 or the “Resolution
Concurring in the Ratification of the Cartagena Protocol on Biosafety (CPB) to the UN Convention on Biological
Diversity.” (International Service for the Acquisition of Agri-biotech Applications, Inc. v. Greenpeace
Southeast Asia (Philippines), et al., GR No. 209271, December 8, 2015, En Banc [Villarama])
Biotechnology

Biotechnology is a multi-disciplinary field which may be defined as “any technique that uses living
organisms or substances from those organisms to make or modify a product, to improve plants or animals, or
to develop microorganisms for specific uses.” Its many applications include agricultural production, livestock,
industrial chemicals and pharmaceuticals. (International Service for the Acquisition of Agri-biotech

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Applications, Inc. v. Greenpeace Southeast Asia (Philippines), et al., GR No. 209271, December 8, 2015,
En Banc [Villarama])

The Precautionary Principle

The precautionary principle originated in Germany in the 1960s, expressing the normative idea that
governments are obligated to “foresee and forestall” harm to the environment. In the following decades, the
precautionary principle has served as the normative guideline for policymaking by many national governments.
The Rio Declaration on Environment and Development, the outcome of the 1992 United Nations Conference
on Environment and Development held in Rio de Janeiro, defines the rights of the people to be involved in the
development of their economies, and the responsibilities of human beings to safeguard the common
environment. It states that the long term economic progress is only ensured if it s linked with the protection of
the environment. For the first time, the precautionary approach was codified under Principle 15, which reads:

In order to protect the environment, the precautionary approach shall be widely applied by States
according to their capabilities. Where there are threats of serious or irreversible damage, lack of full
scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent
environmental degradation.

Principle 15 codified for the first time at the global level the precautionary approach, which indicates
that lack of scientific certainty is no reason to postpone action to avoid potentially serious or irreversible harm
to the environment. It has been incorporated in various international legal instruments. The Cartagena
Protocol on Biosafety to the Convention on Biological Diversity, finalized and adopted in Montreal on January
29, 2000, establishes an international regime primarily aimed at regulating trade in GMOs intended for release
into the environment, in accordance with Principle 15 of the Rio Declaration on Environment and Development.

The Rules (of Procedure for Environmental Cases) incorporated the principle in Part V, Rule 20.

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