MAGIC AREAS in POLITICAL LAW

2018 Bar Examination

Dean ED VINCENT S. ALBANO
Bar Review Director

Doctrine of constitutional supremacy.

No one is above the law and the Constitution, not even a Chief Justice who took an oath to protect and defend the
Constitution and obey the laws of the land. The Court in Francisco, Jr. v. The House of Representatives, 460 Phil. 830 [2003],
says it tritely – “the Chief of Justice is not above the law and neither is any other member of this Court.” All public officers
whether in the Executive, Legislative or Judicial departments are bound to follow the law. If a public officer violates the
law, he or she shall suffer punishment, sanctions and adverse consequences. The obligatory force of the law is necessary
because once we allow exceptions, concessions, waiver, suspension or non-application to those who do not want to follow
the law, nobody else will obey the law (Rep. v. Sereno, G.R. No. 237428, May 11, 2018, Tijam, J).

Ways of amending the Constitution.

There are several ways of proposing amendments to the Constitution. One is by way of a constitutional
convention and the other is proposal of ¾ of Congress as a constituent body.
There is a third way of proposing amendments to the Constitution; however, the people through initiative upon
petition of at least twelve per cent of the total number of registered voters, of which every legislative district must be
represented by at least three per cent of the registered voters in it, may directly propose amendments to the Constitution.
This right is not operative without an implementing law. (Section 2, Article XVII of the 1987 Constitution).

Tests in determining if what is being done is an amendment or a revision

The quantitative test asks whether the proposed change is so extensive in its provisions as to change directly the
“substance entirety” of the constitution by the deletion or alteration of numerous provisions. (Amador Valley Joint Union
High School District vs. State Board of Equalization, 583 P.2d.1281, 1286 [1978]). The court examines only the number of
provisions affected and does not consider the degree of the change.
The qualitative test inquires into the qualitative effects of the proposed change in the constitution. The main
inquiry is whether the change will “accomplish such far reaching changes in the nature of our basic governmental plan as
to amount to a revision.”Whether there is an alteration in the structure of government is a proper subject of inquiry. Thus,
a change in the nature of the basic governmental plan includes change in its fundamental framework or the fundamental
powers of its Branches. A change in the nature of the basic governmental plan also includes changes that “jeopardize the
traditional form of government and the system of check and balances.” (Lambino, et al. vs. COMELEC, et al.)

There is revision if there is a change in the structure of government

A change in the structure of government is a revision of the Constitution, as when the three great co-equal
branches of government in the present Constitution are reduced into two. This alters the separation of powers in the
Constitution. A shift from the present Bicameral-Presidential system to a Unicameral-Parliamentary system is a revision of
the Constitution. Merging the legislative and executive branches is a radical change in the structure of government.
The abolition alone of the Office of the President as the locus of Executive Power alters the separation of powers
and thus constitutes a revision of the Constitution. Likewise, the abolition alone of one chamber of Congress alters the
system of checks-and-balances within the legislature and constitutes a revision of the Constitution.
By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a Unicameral-Parliamentary
system, involving the abolition of the Office of the President and the abolition of one chamber of Congress, is beyond
doubt a revision, not a mere amendment. On the face alone of the Lambino Group’s proposed changes, it is readily
apparent that the changes will radically alter the framework of government as set forth in the Constitution. (Lambino, et al.
vs. COMELEC, et al.).
The proposal to shift the structure of government to Federalism is qualitative as it changes the basic plan of
government.

IMMUNITY OF STATE FROM SUIT

Reason behind the principle of State immunity.

The rule that a state may not be sued without its consent is embodies in Section 3, Article XVI of the 1987
Constitution and has been an established principle that antedates this Constitution. It is as well a universally recognized
principle of international law that exempts a state and its organs from the jurisdiction of another state. The principle is
based on the very essence of sovereignty, and on the practical ground that there can be no legal right as against the
authority that makes the law on which the right depends. It also rests on reasons of public policy – that public service
would be hindered, and the public endangered, if the sovereign authority could be subjected to law suits at the instance of
every citizen and, consequently, controlled in the uses and dispositions of the means required for the proper
administration of the government. (Professional Video Inc. v. TESDA, G.R. No. 155504, June 26, 2009).
It is founded on the principle that there can be no right as against the authority that makes the law upon which
that right depends (Rep. v. Villasor).

Immunity of State from suit, not instrument to perpetuate injustice.

The doctrine of sovereign immunity cannot be successfully invoked to defeat a valid claim for compensation
arising from the taking without just compensation and without the proper expropriation proceedings being first resorted

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to of the plaintiffs’ property.Thus, in De los Santos v. Intermediate Appellate Court,the trial court’s dismissal based on the
doctrine of non-suability of the State of two cases (one of which was for damages) filed by owners of property where a
road had been constructed by the provincial engineer of Rizal and a private contractor without the owners’ knowledge and
consent was reversed and the cases remanded for trial on the merits. The Supreme Court ruled that the doctrine of
sovereign immunity was not an instrument for perpetrating any injustice on a citizen. In exercising the right of eminent
domain, the Court explained, the State exercised its jus imperii, as distinguished from its proprietary rights, or jus gestionis;
yet, even in that area, where private property had been taken in expropriation without just compensation being paid, the
defense of immunity from suit could not be set up by the State against an action for payment by the owners (Air
Transportation Office v. Sps. Ramos, G.R. No. 159402 February 23, 2011, Bersamin, J).

Immunity of State from suit; a generally accepted principle of international law.

As applied to the local state, the doctrine of state immunity is based on the justification given by Justice Holmes
that “there can be no legal right against the authority which makes the law on which the right depends.”[Kawanakoa v.
Polybank, 205 U.S. 349] There are other practical reasons for the enforcement of the doctrine. In the case of the foreign
state sought to be impleaded in the local jurisdiction, the added inhibition is expressed in the maxim par in parem,
non habet imperium. All states are sovereign equals and cannot assert jurisdiction over one another. A contrary
disposition would, in the language of a celebrated case, “unduly vex the peace of nations.” [De Haber v. Queen of
Portugal, 17 Q. B. 171]
While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable to
complaints filed against officials of the state for acts allegedly performed by them in the discharge of their
duties. The rule is that if the judgment against such officials will require the state itself to perform an affirmative act to
satisfy the same, such as the appropriation of the amount needed to pay the damages awarded against them, the suit must
be regarded as against the state itself although it has not been formally impleaded. [Garcia v. Chief of Staff, 16 SCRA 120] In
such a situation, the state may move to dismiss the complaint on the ground that it has been filed without its consent.

ARTICLE II – Declaration of Principles and State Policies

Constitution mandates self-reliant economy, but does not impose policy of monopoly.
The 1987 Constitution does not rule out the entry of foreign investments, goods, and services. While it does not
encourage their unlimited entry into the country, it does not prohibit them either. In fact, it allows an exchange on the
basis of equality and reciprocity, frowning only on foreign competition that is unfair. The key, as in all economies in the
world, is to strike a balance between protecting local businesses and allowing the entry of foreign investments and
services.
Section 10, Article XII of the 1987 Constitution gives Congress the discretion to reserve to Filipinos certain areas
of investments upon the recommendation of the NEDA and when the national interest requires. Thus, Congress can
determine what policy to pass and when to pass it depending on the economic exigencies. It can enact laws allowing the
entry of foreigners into certain industries not reserved by the Constitution to Filipino citizens. In this case, Congress has
decided to open certain areas of the retail trade business to foreign investments instead of reserving them exclusively to
Filipino citizens. The NEDA has not opposed such policy. (Rep. Espina, et al. v. Hon. Ronaldo Zamora, Jr., G.R. No. 143855,
September 21, 2010).

Right to balanced and healthful ecology.

The right to a balanced and healthful ecology need not even 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. Even assuming the absence of a categorical legal provision
specifically prodding petitioners to clean up the bay, they and the men and women representing them cannot escape their
obligation to future generations of Filipinos to keep the waters of the Manila Bay clean and clear as humanly as possible.
Anything less would be a betrayal of the trust reposed in them.

Right to information.
Right to informational privacy is the right of individuals to control information about themselves. Considering
that the default setting for Facebook posts is "Public," it can be surmised that the photographs in question were viewable
to everyone on Facebook, absent any proof that petitioners’ children positively limited the disclosure of the photograph. If
such were the case, they cannot invoke the protection attached to the right to informational privacy. The ensuing
pronouncement in US v. Gines-Perez is most instructive:
A person who places a photograph on the Internet precisely intends to forsake and renounce all privacy rights to
such imagery, particularly under circumstances such as here, where the defendant did not employ protective measures or
devices that would have controlled access to the Web page or the photograph itself.
Even assuming that the photos in issue are visible only to the sanctioned students’ Facebook friends, STC did not
violate the minors’ right to privacy, as it was the minors’ Facebook friends who showed the pictures to Tigol. Respondents
were mere recipients of what were posted. They did not resort to any unlawful means of gathering the information as it
was voluntarily given to them by persons who had legitimate access to the said posts. (RHONDA AVE S. VIVARES, et al. v.
ST. THERESA’S COLLEGE, et al., G.R. No. 202666, September 29, 2014, Velasco, Jr., J.).

Disclosure of SALN.
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 government 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 (Valmonte v. Berlmonte,
Jr.).

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Duty of people in government to disclose SALN.
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 IX, 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 (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]).

Doctrine of Incorporation
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])

When life begins; protection of the unborn.

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.

Life begins at fertilization.

The Constitution affords protection to the unborn from conception. 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.
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.
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])

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

Foreign relations power of the President.

Certain types of cases often have been found to present political questions. One such category involves questions
of foreign relations. It is well-established that “the conduct of the foreign relations of our government is committed by the
Constitution to the executive and legislative – ‘the political’ – departments of the government, and the propriety of what
may be done in the exercise of this political power is not subject to judicial inquiry or decision.” The US Supreme Court has
further cautioned that decisions relating to foreign policy are delicate, complex, and involve large elements of prophecy.
They are and should be undertaken only by those directly responsible to the people whose welfare they advance or
imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility.

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 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 off 1951. The wisdom of such decision is not for the courts to question.
Neither could petitioners herein assail the said determination by the Executive Department via the instant petition for
certiorari (Vinuya, et al. v. The Honorable Executive Secretary Alberto G. Romulo, et al., G.R. No. 162230, April 28,
2010, En Banc [Del Castillo]).

President as sole organ in international relations.

In the seminal case off US v. Custiss-Wright Export Corp., the US Supreme Court held that “the 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 time of war. He has his confidential sources of information. He has his agents in the form, of
diplomatic, consular and other officials.
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.
(Vinuya, et al. v. The Honorable Executive Secretary Alberto G. Romulo, et al., G.R. No. 162230, April 28, 2010, En Banc
[Del Castillo] citing Bayan v. Executive Secretary and Pimentel v. Executive Secretary; Sec. of Justice v. Lantion).

Duty of parents in rearing the youth.

Section 12, Article II of the 1987 Constitution articulates the State's policy relative to the rights of parents in the
rearing of their children:
The natural and primary right and duty of parents in the rearing of the youth for civic efficiency
and the development of moral character shall receive the support of the Government.

The rearing of children (i.e., referred to as the "youth") for civic efficiency and the development of their moral
character are characterized not only as parental rights, but also as parental duties. This means that parents are not only
given the privilege of exercising their authority over their children; they are equally obliged to exercise this authority
conscientiously. The duty aspect of this provision is a reflection of the State's independent interest to ensure that the
youth would eventually grow into free, independent, and well-developed citizens of this nation. For indeed, it is during
childhood that minors are prepared for additional obligations to society. "[T]he duty to prepare the child for these
[obligations] must be read to include the inculcation of moral standards, religious beliefs, and elements of good
citizenship” (Wisconsin v. Yoder, 406 U.S. 205; 92 S. Ct. 1526;32 L. Ed. 2d 15[1972] U.C. LEXIS 144; emphasis and
underscoring supplied). "This affirmative process of teaching, guiding, and inspiring by precept and example is essential to
the growth of young people into mature, socially responsible citizens" (Bellotti v. Baird, 443 U.S. 622; 99 S. Ct. 3035; 61 L.
Ed. 2d 797 [1979] U.S. LEXIS17; Samahan ng mga Progresibong Kabataan v. Quezon City, et al, G.R. No. 225442, August 8,
2017, Perlas-Bernabe, J).

Role of the State as parens patriae.

While parents have the primary role in child-rearing, "when actions concerning the child have a relation to the
public welfare or the well-being of the child, the State may act to promote these legitimate interests” (Bykofsky v. Borough
of Middletown). Thus, "in cases in which harm to the physical or mental health of the child or to public safety, peace, order,
or welfare is demonstrated, these legitimate state interests may override the parents' qualified right to control the
upbringing of their children" (Samahan ng mga Progresibong Kabataan v. Quezon City, et al, G.R. No. 225442, August 8,
2017, Perlas-Bernabe, J).

State’s duty is complementary with parental supervision.

As our Constitution itself provides, the State is mandated to support parents in the exercise of these rights and
duties. State authority is therefore, not exclusive of, but rather, complementary to parental supervision. In Nery v. Lorenzo,
150-A Phil. 241 [1972], the Court acknowledged the State's role as parens patriae in protecting minors, viz.:
[WJhere minors are involved, the State acts as parens patriae. To it is cast the duty of protecting
the rights of persons or individual who because of age or incapacity are in an unfavorable position, vis-a
vis other parties. Unable as they are to take due care of what concerns them, they have the political
community to look after their welfare. This obligation the state must live up to. It cannot be recreant to
such a trust. "This prerogative of parens patriae is inherent in the supreme power of every State, xx x"
(citing Mormon Church v. US, 136 U.S. 1 [1890]; Samahan ng mga Progresibong Kabataan v. Quezon City,
et al, G.R. No. 225442, August 8, 2017, Perlas-Bernabe, J).

As parens patriae, the State has the inherent right and duty to aid parents in the moral development of
their children, (See Spouses lmbong v. Ochoa, Jr.) and, thus, assumes a supporting role for parents to fulfill their parental
obligations. In Bellotti, it was held that "[l]egal restriction on minors, especially those supportive of the parental role, may
be important to the child's chances for the full growth and maturity that make eventual participation in a free society
meaningful and rewarding. Under the Constitution, the State can properly conclude that parents and others,
teachers for example, who have the primary responsibility for children's well-being are entitled to the support of
the laws designed to aid discharge of that responsibility" (Bellotti, supra note 59, citing See Hafen, Children's
Liberation and the New Egalitarianism: Some Reservations About Abandoning Children to Their "Rights," 1976 B. Y. U. L.
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Rev. 605 and Ginsberg v. New York, supra note 61; emphasis and underscoring supplied; Samahan ng mga Progresibong
Kabataan v. Quezon City, et al, G.R. No. 225442, August 8, 2017, Perlas-Bernabe, J).

Curfew ordinances are designed to promote children’s well-being.

The Curfew Ordinances are examples of legal restrictions designed to aid parents in their role of promoting their
children's well-being. These ordinances further compelling State interests (particularly, the promotion of juvenile safety
and the prevention of juvenile crime), which necessarily entail limitations on the primary right of parents to rear their
children. Minors, because of their peculiar vulnerability and lack of experience, are not only more exposed to potential
physical harm by criminal elements that operate during the night; their moral well-being is likewise imperiled as minor
children are prone to making detrimental decisions during this time (See Schleifer v. City of Charlottesville, 159 F.3d 843
(1998) U.S. App. LEXIS 26597).
The Curfew Ordinances apply only when the minors are not - whether actually or constructively accompanied by
their parents. This serves as an explicit recognition of the State's deference to the primary nature of parental authority and
the importance of parents' role in child-rearing. Parents are effectively given unfettered authority over their children's
conduct during curfew hours when they are able to supervise them. Thus, in all actuality, the only aspect of parenting
that the Curfew Ordinances affects is the parents' prerogative to allow minors to remain in public places without
parental accompaniment during the curfew hours (See Qutb v. Strauss, 11 F.3d 488 (1993) U.S. App. LEXIS 29974).In
this respect, the ordinances neither dictate an over-all plan of discipline for the parents to apply to their minors
nor force parents to abdicate their authority to influence or control their minors' activities. As such, the Curfew
Ordinances only amount to a minimal - albeit reasonable – infringement upon a parent's right to bring up his or her child
Samahan ng mga Progresibong Kabataan v. Quezon City, et al, G.R. No. 225442, August 8, 2017, Perlas-Bernabe, J).

ARTICLE III – BILL OF RIGHTS

Investigator cannot be the prosecutor at the same time.

The PCGG cannot gather evidence against a respondent, file a criminal complaint, and then conduct a preliminary
investigation of the case without contravening the basic tenets of due process. The due process violation was compounded
by the fact that the PCGG had filed a civil complaint against the same respondent alleging substantially the same illegal or
criminal acts.
In our criminal justice system, the law enforcer who conducted the criminal investigation,
gathered the evidence and thereafter file the complaint for the purpose of preliminary
investigation cannot be allowed to conduct the preliminary investigation of his own complaint. It
is to say the least arbitrary and unjust. It is in such instances that We say one cannot be "a prosecutor
and judge at the same time." Having gathered the evidence and filed the complaint as a law
enforcer, he cannot be expected to handle with impartiality the preliminary investigation of his
own complaint, this time as a public prosecutor (People v. Eduardo Cojuangco, Jr., G.R. Nos. 160864 &
160897, November 16, 2016, Sereno, J).

Ex-parte application and inquiry of AMLC of bank deposit not violative of substantive due process.
The contention that there is violation of the right to due process is not correct. Section 11 of the AMLA providing
for ex-parte application and inquiry by the AMLC into certain bank deposits and investments does not violate substantive
due process, there being no physical seizure of property involved at that stage. It is the preliminary and actual seizure of
the bank deposits or investments in question which brings these within reach of the judicial process, specifically a
determination that the seizure violated due process (Republic of the Phils. v. Glasgow Credit and Collection Services, Inc.,
et al., 566 Phil. 94, 106-107 [2008]). In fact, in Eugenio it was said that:
“A bank inquiry order under Section 11 does not necessitate any form of physical seizure of
property of the account holder. What the bank inquiry order authorizes is the examination of the
particular deposits or investments in banking institutions or non-bank financial institutions. The
monetary instruments or property deposited with such banks or financial institutions are not seized in a
physical sense, but are examined on particular details such as the account holder's record of deposits
and transactions. Unlike the assets subject of the freeze order, the records to be inspected under a bank
inquiry order cannot be physically seized or hidden by the account holder. Said records are in the
possession of the bank and therefore cannot be destroyed at the instance of the account holder alone as
that would require the extraordinary cooperation and devotion of the bank.”

At the stage in which the petition was filed, the inquiry into certain bank deposits and investments by the AMLC
still does not contemplate any form of physical seizure of the targeted corporeal property (Subido, Pagente, Certeza,
Mendoza & Binay Law Offices v. CA, et al., G.R. No. 216914, December 6, 2016, Perez, J).

Concept of probable cause under the AMLA.

The probable cause required for the issuance of a freeze order differs from the probable cause required for the
institution of a criminal action.
The probable cause required for the issuance of a freeze order refers to "such facts and circumstances which
would lead a reasonably discreet, prudent or cautious man to believe that an unlawful activity and/or money laundering
offence is about to be, is being or has been committed and that the account or any monetary instrument or property
subject thereof sought to be frozen is in any way related to
said unlawful activity and/or money laundering offense."
In resolving the issue of whether probable cause exits, the CA's statutorily-guided determination's focus is not on
the probable commissions of an unlawful activity (or money laundering) that the office of the Ombudsman has already
determined to exist, but on whether the bank accounts, assets, or other monetary instruments sought to be frozen are in
any way related to any of the illegal activities enumerated under R.A. 9160, as amended. Otherwise stated, probable cause
refers to the sufficiency of the relation between an unlawful activity and the property or monetary instrument which is the
focal point of Section 10 of RA No. 9160, as amended. xxx (Lt. Gen. Ligot, et al., v. Republic, 705 Phil. 477, 501-502 [2013];
Subido, etc. v. CA, G.R. No. 216914, December 6, 2016, Perez, J.).
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Ordinance No. 1664 authorizes the immobilization of illegally parked motor vehicles by clamping the tires; valid.
As to substantive due process, Ordinance No. 1664 met the substantive tests of validity and constitutionality by
its conformity 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. Considering that traffic congestions were already retarding the growth
and progress in the population and economic centers of the country, the plain objective of Ordinance No. 1664 was to
serve the public interest and advance the general welfare in the City of Cebu. Its adoption was, therefore, in order to fulfill
the compelling government purpose. With regard to procedural process the clamping of the petitioners’ vehicles was
within the exceptions dispensing with notice and hearing. The immobilization of illegally parked vehicles by clamping the
tires was necessary because the transgressors were not around at the time of apprehension. Under such circumstance,
notice and hearing would be superfluous. (Valentino L. Legaspi V. City Of Cebu, Et Al./Bienvenido P. Jaban, Sr., Et Al. V.
Court Of Appeals, Et Al., G.R. No. 159110/G.R. No. 159692. December 10, 2013).

Reason for the rule that a temporary protection order under RA 9262 can be issued ex parte.
A protection order is an order issued to prevent further acts of violence against women and their children, their
family or household members, and to grant other necessary reliefs. Its purpose is to safeguard the offended parties from
further harm, minimize any disruption in their daily life and facilitate the opportunity and ability to regain control of their
life.
The scope of reliefs in protection orders is broadened to ensure that the victim or offended party is afforded all
the remedies necessary to curtail access by a perpetrator to the victim; to accord the victim and any designated family or
household member safety in the family residence, and to prevent the perpetrator from committing acts that jeopardize the
employment and support of the victim. It also enables the court to award temporary custody of minor children to protect
the children from violence, to prevent their abduction by the perpetrator and to ensure their financial support. (Tua v.
Hon. Mangrobang, et al., G.R. No. 170701, January 22, 2014, Peralta, J).

Ex-parte issuance of TPO not violative of due process.

The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to due process. Just like a writ
of preliminary attachment which is issued without notice and hearing because the time in which the hearing will take
could be enough to enable the defendant to abscond or dispose of his property, in the same way, the victim of VAWC may
already have suffered harrowing experiences in the hands of her tormentor, and possibly even death, if notice and hearing
were required before such acts could be prevented. It is a constitutional commonplace that the ordinary requirements of
procedural due process must yield to the necessities of protecting vital public interests, among which is protection of
women and children from violence and threats to their personal safety and security. (Tua v. Hon. Mangrobang, et al., G.R.
No. 170701, January 22, 2014, Peralta, J).

Equal protection clause does not require universal application of laws.

The fact that a Municipal Judge applying for promotion to the RTC was not considered because he has not yet
complied with the 5-year requirement of incumbency in the first level court cannot rightfully contend that there is
violation of the equal protection and due process clause.
There is no question that JBC employs standards to have a rational basis to screen applicants who cannot be all
accommodated and appointed to a vacancy in the judiciary, to determine who is best qualified among the applicants, and
not to discriminate against any particular individual or class.
The equal protection clause of the Constitution does not require the universal application of the laws to all
persons or things without distinction; what it requires is simply equality among equals as determined according to a valid
classification. If a law neither burdens a fundamental right nor targets a suspect class, the classification stands as long as it
bears a rationale relationship to some legitimate government end. (Villanueva v. JBC, G.R. No. 211833, April 7, 2015).

Mandatory drug testing of students constitutional.

The drug test prescribed under Sec. 36(c) and (d), for secondary and tertiary level students and public and
private employees, while mandatory, is a random and suspicion less arrangement. The primary legislative intent is not
criminal prosecution, as those found positive for illegal drug use as a result of this random testing are not necessarily
treated as criminals, hence, constitutional.
Schools, acting in loco parentis, have a duty to safeguard the health and well - being of their students and may
adopt such measures as may reasonably be necessary to discharge such duty; and schools have the right to impose
conditions on applicants for admission that are fair, just, and non-discriminatory. Indeed, it is within the prerogative of
educational institutions to require, as a condition for admission, compliance with reasonable school rules and regulations
and policies. To be sure, the right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements.
(SOCIAL JUSTICE SOCIETY(SJS) v. DANGEROUS DRUGS BOARD(DDB) and PHILIPPINE DRUG ENFORCEMENT
AGENCY(PDEA), G.R. No. 157870, November 3, 2008, VELASCO, JR., J.).

Mandatory drug testing of persons charged with crimes is unconstitutional.

There is no valid justification for mandatory drug testing for persons accused of crimes. The operative concepts in
the mandatory drug testing are "randomness" and "suspicion less." In the case of persons charged with a crime before the
prosecutor's office, a mandatory drug testing can never be random or suspicion less. The ideas of randomness and being
suspicion less are antithetical to their being made defendants in a criminal complaint. They are not randomly picked;
neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and
are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutor's office
and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let
alone waive their right to privacy. To impose mandatory drug testing on the accused is a blatant attempt to harness a
medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would
violate a persons' right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are
veritably forced to incriminate themselves. (SOCIAL JUSTICE SOCIETY(SJS) v. DANGEROUS DRUGS BOARD(DDB) and
PHILIPPINE DRUG ENFORCEMENT AGENCY(PDEA), G.R. No. 157870, November 3, 2008, VELASCO, JR., J.). In fact, drug
testing becomes a fishing expedition prior to the prosecution of a person that would make it unconstitutional.
6 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys
Requisites of valid classification.
Looking at the circumstances behind the enactment of the laws subject of contention, the LGC-amending RA 9009,
no less, intended the LGUs covered by the cityhood laws to be exempt from the PhP100 million income criterion. .
The equal protection clause does not preclude the state from recognizing and acting upon factual differences
between individuals and classes. It recognizes that inherent in the right to legislate is the right to classify, necessarily
implying that the equality guaranteed is not violated by a legislation based on reasonable classification. Classification, to
be reasonable, must (1) rest on substantial distinctions; (2) be germane to the purpose of the law; (3) not be limited to
existing conditions only; and (4) apply equally to all members of the same class. All these requisites have been met by the
laws challenged as arbitrary and discriminatory under the equal protection clause.
The exemption accorded the 16 municipalities is based on the fact that each had pending cityhood bills long
before the enactment of RA 9009 that substantially distinguish them from other municipalities aiming for cityhood. To
impose on them the much higher income requirement after what they have gone through would appear to be indeed
unfair. (LEAGUE OF CITIES OF THE PHILIPPINES, et al. v. COMMISSION ON ELECTIONS, et al., G.R. Nos. 176951, 177499,
178056 December 21, 2009, Velasco, Jr., J.)

Routine baggage inspection at the port by port authorities valid even without warrant.
Routine baggage inspections conducted by port authorities, although done without search warrants, are not
unreasonable searches per se. Constitutional provisions protecting privacy should not be so literally understood so as to
deny reasonable safeguards to ensure the safety of the traveling public.
Searches pursuant to port security measures are not unreasonable per se. The security measures of x-ray
scanning and inspection in domestic ports are akin to routine security procedures in airports.
The reason behind it is that there is a reasonable reduced expectation of privacy when coming into airports or
ports of travel.
Search conducted by the port authorities are reasonable and, therefore, not violative of the accused’s
constitutional rights. Hence, when the search of the bag of the accused revealed the firearms and ammunitions, accused is
deemed to have been caught in flagrante delicto, justifying his arrest even without a warrant under Section 5(a), Rule 113
of the Rules of Criminal Procedure. The firearms and ammunitions obtained in the course of such valid search are thus
admissible as evidence against the accused (Erwin Libo-on Dela Cruz v. People of the Philippines, G.R. No. 209387, January
11, 2016; Same as People v. Leila Johnson – where the SC ruled that the intrusion into the privacy of an airplane passenger
is so minimal compared to the danger to which the passengers are exposed to).

Nature of stop & frisk search.

“Stop and frisk” searches are necessary for law enforcement. That is, law enforcers should be given the legal
arsenal to prevent the commission of offenses. However, this should be balanced with the need to protect the privacy of
citizens in accordance with Article III, Section 2 of the Constitution. The balance lies in the concept of “suspiciousness”
present in the situation where the police officer finds him or herself in. This may be undoubtedly based on the experience
of the police officer. The case of the accused was different. He was simply a passenger carrying a bag and traveling aboard
a jeepney. There was nothing suspicious, moreover, criminal about riding a jeepney and carrying a bag. The assessment of
suspicion was not made by the police officer but by the jeepney driver. It was the driver who signaled to the police that the
accused was “suspicious”. It is the police officer who should observe facts that would lead to a reasonable degree of
suspicion of a person. The police officer should not adopt the suspicion initiated by another person. For warrantless
searches, probable cause was defined as “a reasonable ground of suspicion supported by circumstances sufficiently
strong in themselves to warrant a cautious man to believe that the person accused is guilty of the offense with which he is
charged.” (People v. Cogaed, G.R. No. 200334, July 30, 2014).

Plain View Doctrine.

The Plain View Doctrine is actually the exception to the inadmissibility of evidence obtained in a warrantless
search incident to a lawful arrest outside the suspect’s person and premises under his immediate control. This is so
because "[o]bjects in the ‘plain view’ of an officer who has the right to be in the position to have that view are subject to
seizure and may be presented as evidence." "The doctrine is usually applied where a police officer is not searching for
evidence against the accused, but nonetheless inadvertently comes across an incriminating object x x x. [It] serves to
supplement the prior justification – whether it be a warrant for another object, hot pursuit, search incident to lawful
arrest, or some other legitimate reason for being present unconnected with a search directed against the accused – and
permits the warrantless seizure." The Plain View Doctrine thus finds no applicability in a situation where the police
officers purposely searched him upon his arrest. The police officers did not inadvertently come across the black bag, which
was in his possession; they deliberately opened it, as part of the search incident to his lawful arrest. (People v. Calantiao,
G.R. No. 203984, June 18, 2014)

Evidence discovered during surveillance; witness had personal knowledge.

The requisites for the issuance of a search warrant are: (1) probable cause is present; (2) such probable cause
must be determined personally by the judge; (3) the judge must examine, in writing and under oath or affirmation, the
complainant and the witnesses he or she may produce; (4) the applicant and the witnesses testify on the facts personally
known to them; and (5) the warrant specifically describes the place to be searched and the things to be seized. x x x (Del
Castillo v.People, 680 Phil. 447 [2012]).
On the claim of lack of personal knowledge, the facts discovered during surveillance conducted on the basis of
information and evidence provided by petitioners – constitute personal knowledge which could form the basis for the
issuance of a search warrant (Petron LPG Dealers Assn. & Total Gaz LPG Dealers Assn. v. Nena Ang, et al., G.R. No. 199371,
February 3, 2016, Del Castillo, J).

Overbreadth doctrine.
Sec. 4(a)(3) of the Cybercrime Law penalizes the intentional or reckless alteration, damaging, deletion or
deterioration of computer data, electronic document, or electronic data message, without right, including the
introduction or transmission of viruses does not suffer from overbreadth.
7 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys
 While it seeks to discourage data interference, it does not intrude into the area of protected speech and
expression, creating a chilling and deterrent effect on these guaranteed freedoms.
Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state regulation, may
not be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of protected freedoms.
But Section 4(a)(3) does not encroach on these freedoms at all. It simply punishes what essentially is a form of
vandalism, the act of willfully destroying without right the things that belong to others, in this case their computer data,
electronic document, or electronic data message. Such act has no connection to guaranteed freedoms. There is no freedom
to destroy other people’s computer systems and private documents. (Disini, Jr., et al. v. The Sec. of Justice, et al., G.R. No.
203335 & other cases, February 11, 2014).

Aggregate-based airtime is unreasonable and arbitrary; reasons.

The assailed rule on “aggregate-based” airtime limits is unreasonable and arbitrary as it unduly restricts and
constrains the ability of candidates and political parties to reach out and communicate with the people. Here, the adverted
reason for imposing the “aggregate-based” airtime limits – leveling the playing field – does not constitute a compelling
state interest which would justify such a substantial restriction on the freedom of candidates and political parties to
communicate their ideas, philosophies, platforms and programs of government. And, this is specially so in the absence of a
clear-cut basis for the imposition of such a prohibitive measure. In this particular instance, what the COMELEC has done
is analogous to letting a bird fly after one has clipped its wings.
It is also particularly unreasonable and whimsical to adopt the aggregate-based time limits on broadcast time
when we consider that the Philippines is not only composed of so many islands. There are also a lot of languages and
dialects spoken among the citizens across the country. Accordingly, for a national candidate to really reach out to as many
of the electorates as possible, then it might also be necessary that he conveys his message through his advertisements in
languages and dialects that the people may more readily understand and relate to. To add all of these airtimes in different
dialects would greatly hamper the ability of such candidate to express himself – a form of suppression of his political
speech. (GMA Network Inc. v. COMELEC, G.R. No. 205357. September 2, 2014).

Freedom of expression, etc.

The removal of the tarpaulin at a church was in violation of their fundamental right to freedom of expression. The
contention that the tarpaulin is an election propaganda which is subject to regulation, especially so that it was oversized is
not correct.
Article III, Sec. 4 of the Constitution provides that no law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of
grievances. The right to freedom of expression was upheld in ABS-CBN v. COMELEC, 380 Phil. 780 [2000], when the SC
overruled the COMELEC when it prevented ABS-CBN from conducting exit surveys. In Primicias v. Fugoso, 80 Phil. 75
[1948], the SC likewise recognized the constitutional right to freedom of speech; to peaceful assembly and to petition for
redress of grievances, although not absolute when it issued a writ of mandamus to compel the Mayor of Manila to issue a
permit to use the street. (The Diocese of Bacolod, etc. v. COMELEC, et al., G.R. No. 191728, January 21, 2015, Leonen, J).

Removal of tarpaulin, content-based restriction.

Assuming arguendo that the size restriction sought to be applied . . . is a mere time, place, and manner regulation,
it’s still unconstitutional for lack of a clear and reasonable nexus with a constitutionally sanctioned objective.”
The regulation may reasonably be considered as either content-neutral or content-based. (See: Wilson R. Huhn,
Assessing the Constitutionality of Laws That Are Both Content-Based and Content-Neutral: The Emerging Constitutional
Calculus, 79 IND. L. J. 801 (2004).228 Chavez v. Gonzales, 569 Phil. 155, 207–208 (2008)). Regardless, the disposition of
this case will be the same. Generally, compared with other forms of speech, the proposed speech is content-based. (The
Diocese of Bacolod, etc. v. COMELEC, et al., G.R. No. 191728, January 21, 2015, Leonen, J).

‘On-its-face’ invalidation of penal statutes not allowed.

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. The
rationale is obvious. If a facial challenge to a penal statute is permitted, the prosecution of crimes may be hampered. No
prosecution would be possible. A strong criticism against employing a facial challenge in the case of penal statutes, if the
same is allowed, would effectively go against the grain of the doctrinal requirement of an existing and concrete
controversy before judicial power may be appropriately exercised. A facial challenge against a penal statute is, at best,
amorphous and speculative. It would, essentially, force the court to consider third parties who are not before it. The
allowance of a facial challenge to attack penal statutes, such a test will impair the State’s ability to deal with crime. If
warranted, there would be nothing that can hinder an accused from defeating the State’s power to prosecute on a mere
showing that, as applied to third parties, the penal statute is vague or overbroad, notwithstanding that the law is clear as
applied to him.(Romualdez vs. Comelec, supra.; Southern Hemisphere Engagement Network, Inc., et al. v. Anti-Terrorism
Council, et al., G.R. No. 178552, October 10, 2010).

Clear and present danger is not the only test to restrain forms of speech.
The clear and present danger doctrine is not the only test which has been applied by the courts. Generally, said
doctrine is applied to cases involving the overthrow of the government and even other evils which do not clearly
undermine national security. Since not all evils can be measured in terms of “proximity and degree” the Court, however, in
several cases – Ayer Productions vs. Capulong, 160 SCRA 861 (1988) and Gonzales vs. COMELEC, 28 SCRA 835 (1969)
applied the balancing of interests test. In Gonzales vs. COMELEC, it was said that “where the legislation under
constitutional attack interferes with the freedom of speech and assembly in a more generalized way and where the effect
of the speech and assembly in terms of the probability of realization of a specific danger is not susceptible even of
impressionistic calculation,” then the “balancing interests” test can be applied. (Soriano v. Laguardia, et al., supra.).

Freedom of Religion; effect of insulting words.

There is nothing in petitioner's statements subject of the complaints expressing any particular religious belief,
nothing furthering his avowed evangelical mission. The fact that he came out with his statements in a televised bible
8 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys
exposition program does not automatically accord them the character of a religious discourse. Plain and simple insults
directed at another person cannot be elevated to the status of religious speech. Even petitioners attempts to place his
words in context show that he was moved by anger and the need to seek retribution, not by any religious conviction. His
claim, assuming its veracity, that some INC ministers distorted his statements respecting amounts Ang Dating Daan owed
to a TV station does not convert the foul language used in retaliation as religious speech. They simply illustrate that
petitioner had descended to the level of name-calling and foul-language discourse. Hence, his speech cannot be protected
by the constitutional guarantee of religious freedom. (ELISEO F. SORIANO v. MA. CONSOLIZA P. LAGUARDIA, et al., G.R. No.
164785, March 15, 2010, Velasco).

When custodial investigation commences.

Custodial investigation commences when a person is taken into custody and is singled out as a suspect in the
commission of the crime under investigation. (People v. Pavillare, 386 Phil. 126, 136 [2000]). As a rule, a police line-up is
not part of the custodial investigation; hence, the right to counsel guaranteed by the Constitution cannot yet be invoked at
this stage. The right to be assisted by counsel attaches only during custodial investigation and cannot be claimed by the
accused during identification in a police lineup. (People v. Pepino, et al., G.R. No. 174471, January 12, 2016).
In People v. Lara, G.R. No. 199877, August 13, 2012, 678 SCRA 332, it was held that the guarantees of Sec. 12(1),
Art. III of the 1987 Constitution, or the so-called Miranda rights, may be invoked only by a person while he is under
custodial investigation. Custodial investigation starts when the police investigation is no longer a general inquiry into an
unsolved crime but has begun to focus on a particular suspect taken into custody by the police who starts the
interrogation and propounds questions to the person to elicit incriminating statements. Police line-up is not part of the
custodial investigation; hence, the right to counsel guaranteed by the Constitution cannot yet be invoked at this stage.

Police power and freedom of speech; press guarantee of equal opportunity to public service.
The names of those who commission or pay for election surveys, including subscribers of survey firms, must be
disclosed pursuant to Section 5.2(a) of the Fair Election Act is a valid regulation in the exercise of police power and effects
the constitutional policy of "guaranteeing equal access to opportunities for public service." Section 5.2(a)'s requirement of
disclosing subscribers neither curtails petitioners' free speech rights nor violates the constitutional proscription against
the impairment of contracts. (SWS, Inc., et al. v. COMELEC, G.R. No. 208062, April 7, 2015, 755 SCRA 124, Leonen, J). This is
so because if there is a clash between police power and non-impairment of contract, the former shall prevail, it being the
most irresistible power of government. (Kabiling v. NHA).

Threat to arrest and cancel licenses, content-based restriction.

The press statements of Sec. Gonzales threatening those who would play the Garci tapes and the NTC threatening
cancellation of the franchises of media establishments who would play the Garci tapes from a content-based prior
restraint that transgressed the Constitution. It is not decisive that the press statements made by respondents were not
reduced in or followed up with formal orders or circulars. It is sufficient that the press statements were made by
respondents while in the exercise of their official functions. Undoubtedly, respondent Gonzales made his statements as
Secretary of Justice, while the NTC issued its statement as the regulatory body of media. Any act done, such as a speech
uttered, for and on behalf of the government in an official capacity is covered by the rule on prior restraint. The concept of
an act does not limit itself to acts already converted to a formal order or official circular. Otherwise, the non-formalization
of an act into an official order or circular will result in the easy circumvention of the prohibition of prior restraint. The
press statements constitute impermissible forms of prior restraints on the right to free speech and press, hence, they were
struck down.
There was enough chilling effect of the complained acts. The warnings came from the NTC, a regulatory agency
that can cancel the certificate of authority of radio and broadcast media. They also came from the Sec. of Justice, an alter
ego of the President who weilds the power to prosecute those violating the laws (Chavez v. Raul Gonzales, et al., G.R. No.
168338, February 15, 2008, CJ Puno).

Dichotomy of treatment between broadcast media and print media.

The broadcast media is subject to a regulatory regime absent in print media. The stricter system of controls
seems to have been adopted in answer to the view that owing to their particular impact on audiences, films, videos, and
broadcasting require a system of prior restraint, whereas it is not accepted that books and other printed media do not.
These media are viewed as beneficial to the public in a number of respects, but are also seen as possible sources of harm
(Helen Fenwick, Civil Liberties & Human Rights, 297 93rd ed. 2002).
In Eastern Broadcasting Corp. (DYRE) v. Daus, G.R. No. L-59329, July 19, 1985, 137 SCRA 628, it was said that all
forms of media whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression
clause. The test for limitations on freedom of expression continues to be the clear and present danger rule.
All forms of communication are entitled to the broad protection of the freedom of expression clause. Necessarily,
however, the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to
newspaper and print media.
The American Court in Federal Communications Commission v. Pacifica Foundation (438 U.S. 726), confronted with
a patently offensive and indecent regular radio program, explained why radio broadcasting, more than other forms of
communications, receives the most limited protection from the free expression clause. First, broadcast media have
established a uniquely pervasive presence in the lives of all citizens, Material presented over the airwaves confronts the
citizen, not only in public, but in the privacy of his home. Second, broadcasting is uniquely accessible to children.
Bookstores and motion picture theaters may be prohibited from making certain material available to children, but the
same selectivity cannot be done in radio or television, where the listener or viewer is constantly tuning in and out (Chavez
v. Raul Gonzales, et al., G.R. No. 168338, February 15, 2008, CJ Puno).

Similar considerations apply in the area of national security.

The broadcast media have also established a uniquely pervasive presence in the lives of all Filipinos. Newspapers
and current books are found only in metropolitan areas and in the poblaciones of municipalities accessible to fast and
regular transportation. Even here, there are low income masses who find the cost of books, newspapers, and magazines
beyond their humble means. Basic needs like food and shelter perforce enjoy high priorities.
9 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys
 On the other hand, the transistor radio is found everywhere. The television set is also becoming universal. Their
message may be simultaneously received by a national or regional audience of listeners including the indifferent or
unwilling who happen to be within reach of a blaring radio or television set. The materials broadcast over the airwaves
reach every person of every age, persons of varying susceptibilities to persuasion, persons of different I.Q.s and mental
capabilities, persons whose reactions to inflammatory or offensive speech would be difficult to monitor or predict. The
impact of the vibrant speech is forceful and immediate. Unlike readers of the printed work, the radio audience has lesser
opportunity to cogitate analyze, and reject the utterance.
The government has a right to be protected against broadcasts which incite the listeners to violently overthrow it.
Radio and television may not be used to organize a rebellion or to signal the start of widespread uprising. At the same
time, the people have a right to be informed. Radio and television would have little reason for existence if broadcasts are
limited to bland, obsequious, or pleasantly entertaining utterances. Since they are the most convenient and popular means
of disseminating varying views on public issues, they also deserve special protection (Chavez v. Raul Gonzales, et al., G.R.
No. 168338, February 15, 2008, CJ Puno).

Tests on the restraint of freedom of speech.

Generally, restraints on freedom of speech and expression are evaluated by either or a combination of three
tests, i.e., (a) the dangerous tendency doctrine which permits limitations on speech once a rational connection has been
established between the speech restrained and the danger contemplated;(Cabansag v. Fernandez, 102 Phil. 151 [1957];
Gonzales v. Comelec, 137 Phil. 417 [1969]; People v. Perez, 4 Phil. 599 [1905]; People v. Nabong, 57 Phil. 455 [1933];
People v. Faleo, 57 Phil. 451 [1933]) (b) the balancing of interests tests, used as a standard when courts need to balance
conflicting social values and individual interests, and requires a conscious and detailed consideration of the interplay of
interests observable in a given situation of type of situation; (Sec. Gonzales v. Comelec) and (c) the clear and present
danger rule which rests on the premise that speech may be restrained because there is substantial danger that the speech
will likely lead to an evil the government has a right to prevent. This rule requires that the evil consequences sought to be
prevented must be substantive, extremely serious and the degree of imminence extremely high (Cabansag v. Fernandez,
supra; Chavez v. Raul Gonzales, et al., G.R. No. 168338, February 15, 2008, CJ Puno).

Four (4) aspects of the freedom of the press.

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 (Chavez v. Raul Gonzales, et al., G.R. No.
168338, February 15, 2008, CJ Puno).

Distinction on restraint of freedom of speech.

A distinction has to be made whether the restraint is (1) a content-neutral regulation, i.e., merely concerned
with the incidents of the speech, or one that merely controls the time, place or manner, and under well-defined standards;
(JBL Reyes v. Bagatsing, 210 Phil. 457 [1983]; Navarro v. Villegas, G.R. No. L-31687, February 18, 1970, 31 SCRA 730;
Ignacio v. Ela, 99 Phil. 346 [1956]; Primictas v. Fugoso, 80 Phil. 71 [1948]) or (2) a content-based restraint or
censorship, i.e., the restriction is based on the subject matter of the utterance or speech. The cast of the restriction
determines the test by which the challenged act is assayed with.
When the speech restraints take the form of a content-neutral regulation, only a substantial governmental
interest is required for its validity (Osmena v. Comelec, 351 Phil. 692 [1998]; Adiong v. Comelec, G.R. No. 103456, March
31, 1992). Because regulations of this type are not designed to suppress any particular message, they are not subject to the
strictest form of judicial scrutiny but an intermediate approach somewhere between the mere rationality that is
required of any other law and the compelling interest standard applied to content-based restrictions. The test is
called intermediate because the Court will not merely rubberstamp the validity of a law but also require that the
restrictions be narrowly-tailored to promote an important or significant governmental interest that is unrelated to the
suppression of expression. The intermediate approach has been formulated in this manner:
A governmental regulation is sufficiently justified if it is within the constitutional power of the
Government, if it furthers an important or substantial governmental interest; if the governmental
interest is unrelated to the suppression of free expression; and if the incident restriction on alleged
[freedom of speech & expression] is no greater than is essential to the furtherance of that interest
(Osmena v. Comelec; Adiong v. Comelec; US v. O’Brien, 391 U.S. 367 [1968]).

On the other hand, a governmental action that restricts freedom of speech or of the press based on content is
given the strictest scrutiny in light of its inherent and invasive impact. Only when the challenged act has overcome
the clear and present danger rule will it pass constitutional muster, (INC v. CA, 328 Phil. 893 [1996]) with the
government having the burden of overcoming the presumed unconstitutionality.

Unless the government can overthrow this presumption, the content-based restraint will be struck down (INC v.
CA; ABS-CBN Broadcasting Corp. v. Comelec, 380 Phil. 780 [2000]; SWS v. Comelec, G.R. No. 147571, May 5, 2001, 357
SCRA 496).
With respect to content-based restrictions, the government must also show the type of harm the speech sought
to be restrained would bring about especially the gravity and the imminence of the threatened harm otherwise the prior
restraint will be invalid. Prior restraint on speech based on its content cannot be justified by hypothetical fears, but only
by showing a substantive and imminent evil that has taken the life of a reality already on ground. As formulated, the
question in every case is whether the words used are used in such circumstances and are of such a nature as
to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It
is a question of proximity and degree (Cabansag v. Fernandez; ABS-CBN v. Comelec).
The regulation which restricts the speech content must also serve an important or substantial government
interest, which is unrelated to the suppression of free expression (Adiong v. Comelec; Chavez v. Raul Gonzales, et al., G.R.
No. 168338, February 15, 2008, CJ Puno).

Freedom of speech, etc. and franchises; content-neutral restriction.

10 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys
 Res. No. 9615 of the COMELEC which prohibits the posting of election campaign materials during the election
period in PUVs and transport terminals is not valid as it unduly infringes on the fundamental right of the people to
freedom of speech. Central to the prohibition is the freedom of individuals, i.e., the owners of PUVs and private transport
terminals, to express their preference, through the posting of election campaign material in their property, and convince
others to agree with them.
The prohibition constitutes a clear prior restraint on the right to free expression of the owners of PUVs and
transport terminals. As a result of the prohibition, owners of PUVs and transport terminals are forcefully and effectively
inhibited from expressing their preferences under the pain of indictment for an election offense and the revocation of their
franchise or permit to operate. (1-UTAK v. COMELEC, G.R. No. 206020, April 14, 2015, 755 SCRA 411).
COMELEC’s prohibition against the posting of decals and stickers on “mobile places” is unconstitutional.
The freedom of expression curtailed by the questioned prohibition is not so much that of the candidate or the
political party. The regulation strikes at the freedom of an individual to express his preference and, by displaying it
on his car, to convince others to agree with him. A sticker may be furnished by a candidate but once the car owner
agrees to have it placed on his private vehicle, the expression becomes a statement by the owner, primarily his own and
not of anybody else. If, in the National Press Club case, the Court was careful to rule out restrictions on reporting by
newspaper or radio and television stations and commentators or columnists as long as these are not correctly paid-for
advertisements or purchased opinions with less reason can we sanction the prohibition against a sincere
manifestation of support and a proclamation of belief by an individual person who pastes a sticker or decal on his
private property. (1-UTAK v. COMELEC, G.R. No. 206020, April 14, 2015, 755 SCRA 411 citing Adiong v. COMELEC, G.R.
No. 103956, March 31, 1992, 207 SCRA 712).

State may regulate the posting of commercial ads on vehicles; reasons.

A prohibition on the posting of commercial advertisements on a PUV is considered a regulation on the ownership
of the vehicle per se; the restriction on the enjoyment of the ownership of the vehicle does not have any relation to its
operation as a PUV.
On the other hand, prohibitions on the posting of commercial advertisements on windows of buses, because it
hinders police authorities from seeing whether the passengers inside are safe, is a regulation on the franchise or permit to
operate. It has a direct relation to the operation of the vehicle as a PUV, i.e., the safety of the passengers. (1-UTAK v.
COMELEC, G.R. No. 206020, April 14, 2015, 755 SCRA 411).

Content-neutral regulation.
Section 7(g) items (5) and (6) of Resolution No. 9615 are content-neutral regulations since they merely control
the place where election campaign materials may be posted. However, the prohibition is still repugnant to the free speech
clause as it fails to satisfy all of the requisites for a valid content-neutral regulation.
While Resolution No. 9615, including the herein assailed provisions, furthers an important and substantial
governmental interest, i.e., ensuring equal opportunity, time and space among candidates aimed at the holding of free,
orderly, honest, peaceful, and credible elections. It is further conceded that the governmental interest in imposing the said
prohibition is unrelated to the suppression of free expression. However, Section 7(g) items (5) and (6), in relation to
Section 7(f), of Resolution No. 9615, are not within the constitutionally delegated power of the COMELEC under Section 4,
Article IX-C of the Constitution. Also, there is absolutely no necessity to restrict the right to free speech of the owners of
PUVs and transport terminals. (1-UTAK v. COMELEC, G.R. No. 206020, April 14, 2015, 755 SCRA 411).

Right to Information
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 government 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 (citing Valmonte v.
Belmonte).
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 IX, 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.
There are 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 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 (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]).

Extrajudicial confession while at a detention cell; effect.

The fact that the extrajudicial confession was made while inside a detention cell does not by itself render such
confession inadmissible. In People v. Domantay, 366 Phil. 459 [1999],where the accused was also interviewed while inside
a jail cell, the Court held that such circumstance alone does not taint the extrajudicial confession of the accused, especially
since the same was given freely and spontaneously.

11 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys

 While there were indeed some police officers around because about two to three meters from the jail were the
police station and the radio room there is no evidence that the presence of the police officers exerted any undue pressure
or influence on accused-appellant and coerced him into giving his confession.
Indeed, there is no showing that the radio reporter was acting for the police or that the interview was conducted under
circumstances where it is apparent that accused-appellant confessed to the killing out of fear (People v. Dacanay, G.R. No.
216064, November 7, 2016; citing People v. Jerez, 349 Phil. 319, 327 [1998]).

Roadside questioning of a motorist detained pursuant to a routine traffic stop cannot be considered a formal arrest.
At the time that he was waiting for PO3 Alteza to write his citation ticket, petitioner Rodel Luz could not be said to
have been “under arrest.” There was no intention on the part of PO3 Alteza to arrest him, deprive him of his liberty, or take
him into custody. Prior to the issuance of the ticket, the period during which Luz was at the police station may be
characterized merely as waiting time. In fact xx x PO3 Altea himself testified that the only reason they went to the police
sub-station was the Luz had been flagged down “almost in front” of that place. Hence, it was only for the sake of
convenience that they were waiting there. There was no intention to take Luz into custody. (Luz v. People, G.R. No. 197788,
February 29, 2012, 2nd Div., Sereno).

Spontaneous statements to the police, not part of questioning; admissible in evidence.

The constitutional procedure for custodial investigation is no applicable if the accused went to the police and
voluntarily told the police that the victim jumped out of his jeep, as he was never held for questioning. Custodial
investigation refers to “any questioning initiated by law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way.” This presupposes that he is suspected of having
committed a crime and that the investigator is trying to elicit information or a confession from him. (People v. Canton, 442
Phil. 743 (2002)). The rule begins to operate at once, as soon as the investigation ceases to be a general inquiry into an
unsolved crime, and direction is aimed upon a particular suspect who has been taken into custody and to whom the police
would then direct interrogatory questions which tend to elicit incriminating statements. The assailed statements were
spontaneously made by petitioner and were not at all elicited through questioning. It was established that petitioner,
together with his cousin Fiscal Jayona, personally went to the police station and voluntarily made the statement that the
victim jumped out of his vehicle. Thus, the constitutional procedure for custodial investigation is not applicable. (Jesalva
v.People, G.R. No. 187725, January 19, 2011, Nachura, J).

A letter admitting shortage of dollars in the collection in a bank is not an uncounselled confession.
The letter was not an extrajudicial confession whose validity depended on its being executed with the assistance
of counsel and its being under oath, but a voluntary party admission under Section 26, Rule 130 of the Rules of Court that is
admissible against her. Such rule provides that the act, declaration or omission of a party as to a relevant fact may be given
in evidence against him. An admission, if voluntary, is admissible against the admitter for the reason that it is fair to
presume that the admission corresponds with the truth, and it is the admitter’s fault if the admission does not. (US v. Ching
Po, 23 Phil. 578). By virtue of its being made by the party himself, an admission is competent primary evidence against the
admitter.
The letter was not a confession due to its not expressly acknowledging the guilt of the accused for qualified theft.
Under Section 30, Rule 130 of the Rules of Court, a confession is a declaration of an accused acknowledging guilt for the
offense charged, or for any offense necessarily included therein. (People v. Cristobal, G.R. No. 159450, March 30, 2011,
Bersamin, J).

Not necessary that a person be assisted by a counsel when he writes the letter.
There was no need for a counsel to have assisted the accused when she wrote the letter because she
spontaneously made it while not under custodial investigation. Her insistence on the assistance of a counsel might be valid
and better appreciated had she made the letter while under arrest, or during custodial investigation, or under coercion by
the investigating authorities of the Government. The distinction of her situation from that of a person arrested or detained
and under custodial investigation for the commission of an offense derived from the clear intent of insulating the latter
from police coercion or intimidation underlying Section 12 of Article III (Bill of Rights) of the 1987 Constitution. (People v.
Cristobal, G.R. No. 159450, March 30, 2011, Bersamin, J).

Right to counsel commences.

The right to counsel is a fundamental right and is intended to preclude the slightest coercion that would lead the
accused to admit something false. The right to counsel attaches upon the start of the investigation, i.e., when the
investigating officer starts to ask questions to elicit information and/or confessions or admissions from the accused
(People v. Reyes, G.R. No. 178300, March 17, 2009, 581 SCRA 691, 718; People v. Pepino, et al., G.R. No. 174471, January
12, 2016).
Custodial investigation commences when a person is taken into custody and is singled out as a suspect in the
commission of the crime under investigation (People v. Pavillare, 386 Phil. 126, 136 [2000]). As a rule, a police line-up is
not part of the custodial investigation; hence, the right to counsel guaranteed by the Constitution cannot yet be invoked at
this stage. The right to be assisted by counsel attaches only during custodial investigation and cannot be claimed by the
accused during identification in a police lineup (People v. Pepino, et al., G.R. No. 174471, January 12, 2016; People v. Lara,
G.R. No. 199877, August 13, 2012, 678 SCRA 332).
Effect if accused is invited by police to shed light on a particular case.
R.A. 7438 expanded the definition of custodial investigation to “include the practice of issuing an ‘invitation’ to a
person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the
liability of the ‘inviting’ officer for any violation of law.” This means that even those who voluntarily surrendered before a
police officer must be apprised of their Miranda rights. For one, the same pressures of a custodial setting exist in this
scenario. Chavez is also being questioned by an investigating officer in a police station. As an additional pressure, he may
have been compelled to surrender by his mother who accompanied him to the police station. (PEOPLE OF THE
PHILIPPINES v. MARK JASON CHAVEZ, G.R. No. 207950, September 22, 2014).

Extent of the power of the court in a petition for bail.

12 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys
 The findings and assessment of the trial court during the bail hearing are only preliminary appraisal of the
strength of the prosecution’s evidence for the limited purpose of determining whether accused is entitled to be released on
bail during the pendency of the trial.
In cases involving non-bailable offenses, what is controlling is the determination of whether the evidence of guilt
is strong which is a matter of judicial discretion that remains with the judge (Pros. Jamara v. Judge Bersales, 488 Phil. 22,
31 [2004]).The judge is under legal obligation to conduct a hearing whether summary or otherwise in the discretion of the
court to determine the existence of strong evidence or lack of it against the accused to enable the judge to make an
intelligent assessment of the evidence presented by the parties. "The court's grant or refusal of bail must contain a
summary of the evidence of the prosecution on the basis of which should be formulated the judge's own conclusion on
whether such evidence is strong enough to indicate the guilt of the accused."In People v. Plaza, 617 Phil. 669 [2009], a
summary hearing is such brief and speedy method of receiving and considering the evidence of guilt as is practicable and
consistent with the purpose of hearing which is merely to determine the weight of evidence for the purposes of bail.' On
such hearing, the Court does not sit to try the merits or to enter into any nice inquiry as to the weight that ought to be
allowed to the evidence for or against the accused, nor will it speculate on the outcome of the trial or on what further
evidence may be therein offered and admitted. The course of inquiry may be left to the discretion of the court which may
confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary examination and
cross-examination" (People v. Dr. David A. Sobrepeña, Sr., et al., G.R. No. 2040-63, December 5, 2016, Del Castillo, J).

Health reason in granting bail.

The currently fragile state of Enrile’s health presents another compelling justification for his admission to bail.
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.
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 (Juan Ponce Enrile v.
Sandiganbayan (3rd Div.), G.R. No. 213847, August 18, 2015, En Banc (Bersamin)).

R.A. No. 7483 (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)
Extra-judicial confession to a bantay bayan is not admissible as evidence if there was no compliance with the
Miranda Rule.
People v. Malngan is the authority on the scope of the Miranda doctrine provided for under Article III, Section
12[1] and [3] of the Constitution. In Malngan, appellant questioned the admissibility of her extrajudicial confessions given
to the barangay chairman and a neighbour of the private complainant. The Supreme Court distinguished. Thus:
Arguably, the barangay tanod’s, including the Barangay Chairman, in this particular instance, may
be deemed as law enforcement officer for purposes of applying Article III, Section 12[1] and [3], of the
Constitution. When accused-appellant was brought to the barangay hall in the morning of 2 January 2001,
she was already a suspect, actually the only one, in the fire that destroyed several houses x x x. She was,
therefore, already under custodial investigation and the rights guaranteed by x xx [the] Constitution
should have already been observed or applied to her. Accused-appellant’s confession to Barangay
Chairman x x x was made in response to the ‘interrogation’ made by the latter – admittedly conducted
without first informing accused-appellant for her rights under the Constitution or done in the presence of
counsel. For this reason, the confession of accused-appellant, given to Barangay Chairman x x x, as well as
the lighter found x x x in her bag are inadmissible in evidence against her x x x (People v. Lauga).

Effect if the holding of religious rituals within the halls of justice would be prohibited.
To disallow the holding of religious rituals within halls of justice would set a dangerous precedent and commence
a domino effect. Strict separation, rather than benevolent neutrality/accommodation, would be the norm. Thus, the
establishment of Shari'a courts, the National Commission for Muslim Filipinos, and the exception of Muslims from the
provisions of the RPC relative to the crime of bigamy would all be rendered nugatory because of strict separation. The
exception of members of Iglesia ni Cristo from joining a union or the non-compulsion recognized in favor of members of
the Jehovah's Witnesses from doing certain gestures during the flag ceremony, will all go down the drain simply because
we insist on strict separation (In Re: Letter of Tony Valenciano, Holding of Religious Rituals at the Hall of Justice Building
in Quezon City, A.M. No. 10-4-19-SC, March 7, 2017, Mendoza, J).

Requisites before right to information may be compelled.

Two requisites must concur before the right to information may be compelled by writ of mandamus. Firstly, the
information sought must be in relation to matters of public concern or public interest. And, secondly, it must not be
exempt by law from the operation of the constitutional guarantee.
The Philippine petrochemical industry centers on the manufacture of plastic and other related materials, and
provides essential input requirements for the agricultural and industrial sectors of the country. Thus, the position of the
petrochemical industry as an essential contributor to the overall growth of our country's economy easily makes the
information sought a matter of public concern or interest.

13 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys

 The constitutional guarantee of the people's right to information does not cover national security matters and
intelligence information, trade secrets and banking transactions and criminal matters. Equally excluded from coverage of
the constitutional guarantee are diplomatic correspondence, closed-door Cabinet meeting and executive sessions of either
house of Congress, as well as the internal deliberations of the Supreme Court. In Chavez v. Public Estates Authority, the
Court has ruled that the right to information does not extend to matters acknowledged as "privileged information under
the separation of powers," which include "Presidential conversations, correspondences, or discussions during closed-door
Cabinet meetings." Likewise exempted from the right to information are "information on military and diplomatic secrets,
information affecting national security, and information on investigations of crimes by law enforcement agencies before
the prosecution of the accused (Sereno, et al. v. Committee on Trade & Related Matters (CTRM) of the NEDA, G.R. No.
175210, February 1, 2016)."

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 docket 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 travelling 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]).

Examination of the regulation under the strict scrutiny test.

The right to travel is recognized and guaranteed as a fundamental right under Section 6, Article III of the 1987
Constitution, to wit:
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.

Jurisprudence provides that this right refers to the right to move freely from the Philippines to other countries or
within the Philippines (In Marcos v. Manglapus, 258 Phil. 479, 497-498 (1989), the Court ruled that the right to travel
under our Constitution refer to right to move within the country, or to another country, but not the right to return to one's
country. The latter right, however, is provided under the Universal Declaration of Human Rights to which the Philippines
is a signatory.). It is a right embraced within the general concept of liberty (UP Law Center Constitutional Revision Project
61 (1970). See Kent v. Dulles, 357 U.S. 116; 78 S. Ct. 1113; 2 L. Ed. 2d 1204 (1958) U.S. LEXIS 814. See also Rubi v. Provincial
Board of Mindoro, 39 Phil. 660 705-706 (1919), where the Court stated that the right of locomotion is one of the chief
elements of the guaranty of liberty. 91). Liberty - a birthright of every person - includes the power of locomotion (See
Duran v. Abad Santos, 75 Phil. 410, 431-432 (1945)) and the right of citizens to be free to use their faculties in lawful ways
and to live and work where they desire or where they can best pursue the ends of life (See Salvador H Laurel. Proceedings
of the Philippine Constitutional Convention. As Faithfully Reproduced from the Personal Record of Jose P. Laurel, Vol. III,
652 (1966). See also Rubi v. Provincial Board of Mindoro; Samahan ng mga Progresibong Kabataan v. Quezon City, et al,
G.R. No. 225442, August 8, 2017, Perlas-Bernabe, J).
The right to travel is essential as it enables individuals to access and exercise their other rights, such as the rights
to education, free expression, assembly, association, and religion. The inter-relation of the right to travel with other
fundamental rights was briefly rationalized in City of Maquoketa v. Russell, 484 N.W. 2d 179 [1992] Iowa Sup. LEXIS 91,as
follows:
Whenever the First Amendment rights of freedom of religion, speech, assembly, and association
require one to move about, such ovement must necessarily be protected under the First Amendment.
Restricting movement in those circumstances to the extent that First Amendment Rights cannot be
exercised without violating the law is equivalent to a denial of those rights. One court has eloquently
pointed this out:
We would not deny the relatedness of the rights guaranteed by the First Amendment to
freedom of travel and movement. If, for any reason, people cannot walk or drive to their church, their
freedom to worship is impaired. If, for any reason, people cannot walk or drive to the meeting all,
freedom of assembly is effectively blocked. If, for any reason, people cannot safely walk the sidewalks or
drive the streets of a community, opportunities for freedom of speech are sharply limited. Freedom of
movement is inextricably involved with freedoms set forth in the First Amendment.

Restrictions on right to travel.

Grave and overriding considerations of public interest justify restrictions even if made against fundamental
rights. Specifically on the freedom to move from one place to another, jurisprudence provides that this right is not absolute
(See Leave Division, Office of Administrative Services-Office of the Court Administrator (OAS-OCA) v. Heusdens, 678 Phil. 328,
399 (2011) and Mirasol v. Department of Public Works and Highways, 523 Phil. 713, 752 (2006). See also Marcos v.
Manglapus,supra note 89, at 504. In Silverio v. CA (273 Phil. 128, 133 [ 1991 ]), the Court held that "the [State is] not armed
with arbitrary discretion to impose limitations [on this right]," and in Rubi v. Provincial Board of Mindoro (supra note 90, at
716), it was held that "citizens [do] not possess an absolute freedom of locomotion"). As the 1987 Constitution itself reads,
the State may impose limitations on the exercise of this right, provided that they: (1) serve the interest of national security,

14 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys

public safety, or public health; and (2) are provided by law (Samahan ng mga Progresibong Kabataan v. Quezon City, et al,
G.R. No. 225442, August 8, 2017, Perlas-Bernabe, J).

Purposes of Curfew Ordinances.

The stated purposes of the Curfew Ordinances, specifically thepromotion of juvenile safety and prevention of
juvenile crime, inarguablyserve the interest of public safety. The restriction on the minor's movementand activities within
the confines of their residences and their immediatevicinity during the curfew period is perceived to reduce the
probability ofthe minor becoming victims of or getting involved in crimes and criminalactivities. As to the second
requirement, i.e., that the limitation "be providedby law," our legal system is replete with laws emphasizing the State's
dutyto afford special protection to children, i.e., RA 7610, as amended, RA 9775, RA 9262,RA 9851, RA 9344,RA 10364,RA
9211, RA8980, RA9288, and Presidential Decree (PD) 603, as amended.
Particularly relevant to this case is Article 139 of PD 603, which explicitly authorizes local government units,
through their city or municipal councils, to set curfew hours for children. It reads:
Article 139.Curfew Hours for Children.- City or municipal councils may prescribe such curfew
hours for children as may be warranted by local conditions. The duty to enforce curfew ordinances shall
devolve upon the parents or guardians and the local authorities.

City councils are authorized to enact curfew ordinances and enforce the same through their local officials. In
other words, PD 603 provides sufficient statutory basis - as required by the Constitution - to restrict the minors' exercise
of the right to travel (Samahan ng mga Progresibong Kabataan v. Quezon City, et al, G.R. No. 225442, August 8, 2017,
Perlas-Bernabe, J).

Restrictions set by curfew ordinances are constitutionally permissible.

The restrictions set by the Curfew Ordinances that apply solely to minors are likewise constitutionally
permissible. Minors do possess and enjoy constitutional rights, (See Bellotti) but the exercise of these rights is not co-
extensive as those of adults. As parens patriae, the State regulates and, to a certain extent, restricts the minors' exercise of
their rights, such as in their affairs concerning the right to vote, the right to execute contracts,and the right to engage in
gainful employment. With respect to the right to travel, minors are required by law to obtain a clearance from the
Department of Social Welfare and Development before they can travel to a foreign country by themselves or with a person
other than their parents (See Section 8 (a) of RA 7610 and Section 5 (t) of RA 8239, entitled "PHILIPPINE PASSPORT ACT
OF 1996," approved on November 22, 1996). These limitations demonstrate that the State has broader authority over the
minors' activities than over similar actions of adults, and overall, reflect the State's general interest in the well-being of
minors. Thus, the State may impose limitations on the minors' exercise of rights even though these limitations do not
generally apply to adults (Samahan ng mga Progresibong Kabataan v. Quezon City, et al, G.R. No. 225442, August 8, 2017,
Perlas-Bernabe, J).

3 justifications for different treatment of minors.

In Bellotti, 117 the US Supreme Court identified three (3) justifications for the differential treatment of the
minors' constitutional rights. These are: first, the peculiar vulnerability of children; second, their inability to make critical
decisions in an informed and mature manner; and third, the importance of the parental role in child rearing:
[On the first reason,] our cases show that although children generally are protected by the same
constitutional guarantees against governmental deprivations as are adults, the State is entitled to adjust
its legal system to account for children's vulnerability and their needs for 'concern, ... sympathy, and ...
paternal attention. xxx.
[On the second reason, this Court's rulings are] grounded [on] the recognition that, during the
formative years of childhood and adolescence, minors often lack the experience, perspective, and
judgment to recognize and avoid choices that could be detrimental to them. x x x.
[On the third reason,] the guiding role of parents in the upbringing of their children justifies
limitations on the freedoms of minors. The State commonly protects its youth from adverse
governmental action and from their own immaturity by requiring parental consent to or involvement in
important decisions by minors.

The issuance of DOJ Circular No. 41 has no legal basis.

There is no law particularly providing for the authority of the secretary of justice to curtail the exercise of the
right to travel, in the interest of national security, public safety or public health. As it is, the only ground of the former DOJ
Secretary in restraining the petitioners, at that time, was the pendency of the preliminary investigation of the Joint DOJ-
COMELEC Preliminary Investigation Committee on the complaint for electoral sabotage against them.
To be clear, DOJ Circular No. 41 is not a law. It is not a legislative enactment which underwent the scrutiny and
concurrence of lawmakers, and submitted to the President for approval. It is a mere administrative issuance apparently
designed to carry out the provisions of an enabling law which the former DOJ Secretary believed to be Executive Order No.
(E.O.) No. 292, otherwise known as the “Administrative Code of 1987” (Genuino, et al. v. De Lima, & other cases, G.R. Nos.
199034, 199046 and 197930, April 17, 2018).A plain reading of the foregoing provisions shows that they are mere general
provisions designed to lay down the purposes of the enactment and the broad enumeration of the powers and functions of
the DOJ. In no way can they be interpreted as a grant of power to curtail a fundamental right as the language of the
provision itself does not lend to that stretched construction (Smart Communication, Inc v. National Telecommunications
Commission, supra; Genuino, et al. v. De Lima, & other cases, G.R. Nos. 199034, 199046 and 197930, April 17, 2018).

Vexations delay results in dismissal of a case.

The speedy disposition of cases covers not only the period within which the preliminary investigation was
conducted, but also all stages to which the accused is subjected, even including fact-finding investigations conducted prior
to the preliminary investigation proper. In Dansal v. Fernandez, Sr.,G.R. No. 126814, March 2, 2000, it was said:
Initially embodied in Section 16, Article IV of the 1973 Constitution, the aforesaid constitutional
provision is one of three provisions mandating speedier dispensation of justice. It guarantees the right
of all persons to “a speedy disposition of their case”; includes within its contemplation the
15 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys
 periods before, during and after trial, and affords broader protection than Section 14(2), which
guarantees just the right to a speedy trial. It is more embracing than the protection under Article VII,
Section 15, which covers only the period after the submission of the case. The present constitutional
provision applies to civil, criminal and administrative cases (Commodore Lamberto Torres v. SB, et al.,
G.R. No. 221562-69, October 5, 2016, Velasco, J).

Purpose of rule on speedy disposition of cases.

The right to speedy disposition of cases is not merely hinged towards the objective of spurring dispatch in the
administration of justice but also to prevent the oppression of the citizen by holding a criminal prosecution suspended
over him for an indefinite time. Akin to the right to speedy trial, its "salutary objective" is to assure that an innocent person
may be free from the anxiety and expense of litigation or, if otherwise, of having his guilt determined within the shortest
possible time compatible with the presentation and consideration of whatsoever legitimate defense he may interpose.
The Constitutional guarantee against unreasonable delay in the disposition of cases was intended to stem the tide
of disenchantment among the people in the administration of justice by our judicial and quasi-judicial tribunals. The
adjudication of cases must not only be done in an orderly manner that is in accord with the established rules of procedure
but must also be promptly decided to better serve the ends of justice. Excessive delay in the disposition of cases renders
the rights of the people guaranteed by the Constitution and by various legislations inutile.
All told, the criminal complaints were correctly dismissed on the ground of inordinate delay of fifteen (15) years
amounting to a transgression of the right to a speedy disposition of cases and therefore, the Sandiganbayan did not gravely
abuse its discretion (Commodore Lamberto Torres v. SB, et al., G.R. No. 221562-69, October 5, 2016, Velasco, J).

There is double jeopardy if a person is charged with the same offense.

An accused would be put in double jeopardy if he is charged with imprudence resulting in homicide after pleading
guilty to reckless imprudence resulting in physical injuries.
The accused’s negative constitutional right not be “twice put in jeopardy of punishment for the same offense”
protects him from, among others, post-conviction prosecution for the same offense, with the prior verdict rendered by a
court of competent jurisdiction upon a valid information. The law penalizes the negligent or careless act, not the result
thereof. The gravity of the consequence is merely taken into consideration in the imposition of the penalty. As the careless
act is single, the offense of criminal negligence remains one and the same and cannot be split into different crimes and
prosecutions. (Jason Ivler v. Hon. San Pedro, G.R. No. 172176, November 17, 2010).

Oral order of dismissal of a criminal case; no double jeopardy; void.

An oral order of dismissal of an information issued by a Justice of the Sandiganbayan due to delay is a void order.
In Corpuz vs. SB, G.R. No. 162214, November 11, 2004, 442 SCRA 294, it was said that the dismissal made in open court by
the Chairman, which was not reduced in writing, is not a valid dismissal or termination of the cases. This is because the
Chairman cannot unilaterally dismiss the same without the approval or consent of the other members of the
Division. The Sandiganbayan is a collegiate court and under its internal rules Section 1(b) of the 1984 Revised Rules of the
Sandiganbayan, which is now Section 1(b), Rule VIII of the 2002 Revised Internal Rules of the Sandiganbayan, an order,
resolution or judgment, in order to be valid or considered as an official action of the Court itself - must bear the unanimous
approval of the members of the division, or in case of lack thereof, by the majority vote of the members of a special
division of five. (Monico Jacob, et al. vs. SB, et.al., G.R. No. 162206, November 17, 2010).
Section 1, Rule 120 of the Revised Rules of Criminal Procedure, mandates that a judgment must be written in the
official language, personally and directly prepared by the judge and signed by him and shall contain clearly and distinctly a
statement of the facts and the law upon which it is based. The rule applies to a final order dismissing a criminal case
grounded on the violation of the rights of the accused to a speedy trial. A verbal judgment or order of dismissal is a
violation of the provision; hence, such order is, in contemplation of law, not in esse, therefore, ineffective. (Monico Jacob,
et.al. vs. SB, et.al., G.R. No. 162206, November 17, 2010).

3 related protections under the principle of double jeopardy.

The Constitutional prohibition against double jeopardy provides to the accused three (3) related protections,
specifically: protection against a second prosecution for the same offense after acquittal; protection against a second
prosecution for the same offense after conviction; and protection against multiple punishments for the same offense (North
Carolina v. Pearce, 395 US 711, 717 (1969)).The rationale for the three protections is expounded in United States v. Wilson,
420 US 332, 343 [1975]:
The interests underlying these three protections are quite similar. When a defendant has been
once convicted and punished for a particular crime, principles of fairness and finality require that he not
be subjected to the possibility of further punishment by being again tried or sentenced for the same
offense. Ex parte Lange, 18 Wall 163 (1874); Jn re Nielsen, 131 U.S. 176 (1889). When a defendant has
been acquitted of an offense, the Clause guarantees that the State shall not be permitted to make
repeated attempts to convict him, "thereby subjecting him to embarrassment, expense and ordeal, and
compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility
that, even though innocent, he may be found guilty" (Gloria Macapagal-Arroyo v. People, et al., G.R. Nos.
220598 & 220953, April 18, 2017, Bersamin, J).

The Right against Ex Post Facto Law and Bill of Attainder

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
16 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys
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).

Ex post facto law; Is R.A. No. 8249 an ex post facto law?

Ex post facto law, generally, prohibits retrospectivity of penal laws. R.A. 8249 is not a penal law. It is a
substantive law on jurisdiction which is not penal in character. Penal laws 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.
The 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 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).

CITIZENSHIP

Effect of use of American passport after renunciation of foreign citizenship.

A dual citizen who renounced his American citizenship is not qualified to run for public office if he subsequently
uses his American passport. The declared policy of Republic Act No. (RA) 9225 is that "all Philippine citizens who become
citizens of another country shall be deemed not to have lost their Philippine citizenship under the conditions of this
Act." This policy pertains to the reacquisition of Philippine citizenship. Section 5(2) requires those who have re-acquired
Philippine citizenship and who seek elective public office, to renounce any and all foreign citizenship.
This requirement of renunciation of any and all foreign citizenship, when read together with Section 40(d) of the
Local Government Code which disqualifies those with dual citizenship from running for any elective local position,
indicates a policy that anyone who seeks to run for public office must be solely and exclusively a Filipino citizen. To allow a
former Filipino who reacquires Philippine citizenship to continue using a foreign passport – which indicates the
recognition of a foreign state of the individual as its national – even after the Filipino has renounced his foreign citizenship,
is to allow a complete disregard of this policy. (Maquiling v. COMELEC, et al., G.R. No. 195649, July 2, 2013; Agustin v.
COMELEC; Arnado v. COMELEC).

Sen. Grace Poe admittedly foundling, a natural-born citizen of the Philippines.

As a matter of law, foundlings are as a class, natural-born citizens. While the 1935 Constitution’s enumeration is
silent as to foundlings, there is no restrictive language which would definitely exclude foundlings either. During the
deliberations in the 1935 Constitutional convention, there was an attempt to amend the proposed provisions on
citizenship to include foundlings in the concept of natural-born citizens but it was not carried out 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. In fact some delegates were able to convince their colleagues that there is no more need
to expressly declare foundlings a Filipinos because they are already impliedly so recognized. In the words of Chief Justice
Fernando, “the constitution is not silently silent, it is silently vocal. In fact, there is nothing in the 1935, 1973, 1987
Constitution for an express intention to deny foundlings the status of Filipinos. The burden is on those who wish to deny
the use of the constitution to discriminate against foundlings to show that the Constitution really intended to take this
path to the dark side and inflict this across the board marginalization. (Mary Grace Natividad S. Poe-Llamansares v.
COMELEC, et al., G.R. Nos. 221697; 221698-700, March 8, 2016, Perez, J).

The COMELEC’s ruling in Sen. Poe’s repatriation in July 2006 under the provisions of R.A. No. 9225 did not result in
the reacquisition of natural-born citizenship is not correct.
The COMELEC's rule arrogantly disregarded consistent jurisprudence on the matter of repatriation statutes in
general and of R.A. No. 9225 in particular.
In the seminal case of Bengson Ill v. HRET, 409 Phil. 633, 649 [2001], repatriation was explained as follows:
Moreover, repatriation results in the recovery of the original nationality. This means that a
naturalized Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino
citizen. On the other hand, if he was originally a natural-born citizen before he lost his Philippine
citizenship, he will be restored to his former status as a natural-born Filipino.

R.A. No. 9225 is a repatriation statute and has been described as an "abbreviated repatriation process that
restores one's Filipino citizenship x x x." (Sobejana-Condon v. COMELEC, 692 Phil. 407, 420 [2012]). Also included is
Parreno v. Commission on Audit, 551 Phil. 368, 381 [2007], which cited Tabasa v. Court of Appeals, 531 Phil. 407, 417
[2006], where it was said that "[t]he repatriation of the former Filipino will allow him to recover his natural-born
citizenship. Parreno v. Commission on Audit144 is categorical that "if petitioner reacquires his Filipino citizenship (under
R.A. No. 9225), he will ... recover his natural-born citizenship." (Mary Grace Natividad S. Poe-Llamansares v. COMELEC, et
al., G.R. Nos. 221697; 221698-700, March 8, 2016).

Circumstantial evidence allowed to prove citizenship.

Our evidentiary rules admit of alternative means for Sen. Poe to establish her parentage.
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 In lieu of direct evidence, facts may be proven through circumstantial evidence. In Suerte-Felipe v. People, 571
Phil. 170 [2008]:
Direct evidence is that which proves the fact in dispute without the aid of any interference or
presumption; while circumstantial evidence is the proof of fact or facts from which, taken either singly or
collectively, the existence of a particular fact in dispute may be inferred as a necessary or probable
consequence.

Although the Revised Rules on Evidence's sole mention of circumstantial evidence is in reference to criminal
proceedings, this Court has nevertheless sustained the use of circumstantial evidence in other proceedings (374 Phil. 810
[1999]). There is no rational basis for making the use of circumstantial evidence exclusive to criminal proceedings and for
not considering circumstantial facts as valid means for proof in civil and/or administrative proceedings.
In criminal proceedings, circumstantial evidence suffices to sustain a conviction (which may result in deprivation
of life, liberty, and property) anchored on the highest standard or proof that our legal system would require, i.e., proof
beyond reasonable doubt. If circumstantial evidence suffices for such a high standard, so too may it suffice to satisfy the
less stringent standard of proof in administrative and quasi-judicial proceedings such as those before the Senate Electoral
Tribunal, i.e., substantial evidence (Rizalito David v. SET, et al.).

DELEGATION OF POWERS

Tests to determine valid delegation of powers.

Sec. 26(a) provides that the Cybercrime Coordinating Center (CICC) shall have the powers to formulate a national
cybersecurity plan and extend immediate assistance of real time commission of cybercrime offenses through a computer
emergency response team (CERT). Such delegation of powers is valid.
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. (Gerochi v. Department of Energy, 554 Phil. 563
[2007]).
Here, the cybercrime law is complete in itself when it directed the CICC to formulate and implement a national
cybersecurity plan. Also, contrary to the position of the petitioners, the law gave sufficient standards for the CICC to follow
when it provided a definition of cybersecurity. (Disini, Jr., et al. v. The Sec. of Justice, et al., G.R. No. 203335 & other cases,
February 11, 2014).

Reason for delegation of powers.

It is well-settled that the power to fill in the details and manner as to the enforcement and administration of a law
may be delegated to various specialized administrative agencies like the Secretary of Finance in this case.
The latest in our jurisprudence indicates that delegation of legislative power has become the rule and its non-
delegation the exception. The reason is the increasing complexity of modern life and many technical fields of governmental
functions as in matters pertaining to tax exemptions. This is coupled by the growing inability of the legislature to cope
directly with the many problems demanding its attention. The growth of society has ramified its activities and created
peculiar and sophisticated problems that the legislature cannot be expected reasonably to comprehend. Specialization
even in legislation has become necessary. To many of the problems attendant upon present day undertakings, the
legislature may not have the competence, let alone the interest and the time, to provide the required direct and efficacious,
not to say specific solutions.

Limitations on power to fill in details.

Thus, rules and regulations implementing the law are designed to fill in the details or to make explicit what is
general, which otherwise cannot all be incorporated in the provision of the law. Such rules and regulations, when
promulgated in pursuance of the procedure or authority conferred upon the administrative agency by law, "deserve to be
given weight and respect by the courts in view of the rule-making authority given to those who formulate them and their
specific expertise in their respective fields." To be valid, a revenue regulation must be within the scope of statutory
authority or standard granted by the legislature. Specifically, the regulation must (1) be germane to the object and purpose
of the law; (2) not contradict, but conform to, the standards the law prescribes; and (3) be issued for the sole purpose of
carrying into effect the general provisions of our tax laws. (LA SUERTE CIGAR & CIGARETTE FACTORY v. CA, G.R. No.
125346, November 11, 2014).

SEPARATION OF POWERS

Separation of powers; political question.

Under Section 1, Article VIII of the 1987 Constitution the Supreme Court may inquire whether or not the decision
to expel a Senator is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction. In Alejandrino v.
Quezon, 46 Phil. 83 (1924), the Supreme Court held that it could not compel the Senate to reinstate a Senator who
assaulted another Senator and was suspended for disorderly behavior, because it could not compel a separate and co-
equal department to take any particular action. In Osmena v. Pendatun, 109 Phil. 863 (1960), it was held that the Supreme
Court could not interfere with the suspension of a Congressman for disorderly behavior, because the House of
Representatives is the judge of what constitutes disorderly behavior. The assault of a fellow Senator constitutes disorderly
behavior.

President’s power to enter into executive agreements; political question.

Under the Doctrine of Incorporation, as expressed in Art II of the 1987 Constitution, the Philippines adopts the
generally accepted principles of international law as part of the law of the land. An exchange of notes falls into the category
of inter-governmental agreements, which is an internationally accepted form of international agreement. Hence, the Non-

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Surrender Bilateral Agreement in the exchange note is a recognized mode of concluding a legally binding international
written contract among nations.
An act of the executive branch with a foreign government must be afforded great respect. This authority of the
President to enter into executive agreements without the concurrence of legislators is provided by the inviolable doctrine
of separation of powers among the legislative, executive and judicial branches of the government. Thus, absent any clear
contravention of the law, the courts should exercise utmost caution in declaring any executive agreement invalid. (BAYAN
MUNA, et al. v. ALBERTO ROMULO, et al., G.R. No. 159618, February 01, 2011, J. Velasco, Jr.).

The “Pork Barrel” System Declared Unconstitutional: Reasons; violation of separation of powers.
The Court declared 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 ofpresentment 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, 50-
51, November 19, 2013, En Banc [Perlas-Bernabe].

The court imposes a penalty on accused and provides that there can be no pardon. It violates the discretion of the
President. It is violative of the principle of separation of powers (San Diego v. People, April 8, 2015).

ARTICLE VI – Legislative Department

HRET as sole judge.

Article VI, Section 17 provides that the HRET and the Senate Electoral Tribunal (SET) shall be the sole judge of all
contests relating to the election, returns, and qualifications of their respective members. The authority conferred upon the
Electoral Tribunal is full, clear and complete. The use of the word sole emphasizes the exclusivity of the jurisdiction of
these Tribunals, (Co v. HRET, G.R. No. 92191-92, July 30, 1991, 199 SCRA 692), which is conferred upon the HRET and the
SET after elections and the proclamation of the winning candidates. A candidate who has not been proclaimed and who
has not taken his oath of office cannot be said to be a member of the House of Representatives. (Co v. HRET).
A petition for quo warranto is within the exclusive jurisdiction of the HRET, and cannot be considered forum
shopping even if the COMELEC had already passed upon in administrative or quasi-judicial proceedings the issue of the
qualification of the Member of the House of Representatives while the latter was still a candidate. (Rep. Danilo Ramon
Fernandez v. HRET, et al., G.R. No. 187478, December 21, 2009; David v. SET, et al., G.R. No. 221538, September 20, 2016,
Leonen, J).

Judgment of the Electoral Tribunal is subject to judicial review.

The judgments of these tribunals are not beyond the scope of any review. Article VI, Section 17's stipulation of
electoral tribunals' being the "sole" judge must be read in harmony with Article VIII, Section l's express statement that
"[j]udicial power includes the duty of the courts of justice ... 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."
Judicial review is, therefore, still possible (Libanan v. House of Representatives Electoral Tribunal, 347 Phil. 797 [1997],
Vitug, ;David v. SET, et al., G.R. No. 221538, September 20, 2016, Leonen, J).

HRET may resolve the issue of fraud, terrorism.

An Election Protest proposes to oust the winning candidate from office. It is strictly a contest between the
defeated and the winning candidates, based on the grounds of electoral frauds or irregularities. It aims to determine who
between them has actually obtained the majority of the legal votes cast and, therefore, entitled to hold the office.
The power of the HRET to annul elections differ from the power granted to the COMELEC to declare failure of
elections. The Constitution no less, grants the HRET with exclusive jurisdiction to decide all election contests involving the
members of the House of Representatives, which necessarily includes those which raise the issue of fraud, terrorism or
other irregularities committed before, during or after the elections.
The HRET has jurisdiction to determine whether there was terrorism in the contested precincts. In the event that
the HRET would conclude that terrorism indeed existed in the said precincts, then it could annul the election results in the
said precincts to the extent of deducting the votes received by Daza and Abayon in order to remain faithful to its
constitutional mandate to determine who among the candidates received the majority of the valid votes cast (Abayon v.
HRET, G.R. No. 222236, May 3, 2016, Mendoza, J).

HRET has sole power to decide on the issue of qualifications of members of Congress including Party-List.
Section 17, Article VI of the 1987 Constitution endows the HRET with jurisdiction to resolve questions on the
qualifications of members of Congress. In the case of party-list representatives, the HRET acquires jurisdiction over a
disqualification case upon proclamation of the winning party-list group, oath of the nominee, and assumption of office as
member of the House of Representatives. In this case, the COMELEC proclaimed Ating Koop as a winning party-list group;
petitioner Lico took his oath; and he assumed office in the House of Representatives. Thus, it is the HRET, and not the
COMELEC, that has jurisdiction over the disqualification case.

19 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys

 There is no legal basis of the COMELEC in upholding the validity of the expulsion of Lico from Ating Koop, despite
its own ruling that the HRET has jurisdiction over the disqualification issue. These findings already touch upon the
qualification requiring a party-list nominee to be a bona fide member of the party-list group sought to be represented
(Atty. Isidro Lico, et al. v. COMELEC, et al., G.R. No. 205505, September 29, 2015, Sereno, J).

Mandatory drug testing as additional qualification of an elected public officer before assumption of office.
It is unconstitutional for the COMELEC to impose mandatory drug testing before an elected official may assume
office because it is basic that if a law or an administrative rule violates any norm of the Constitution.
The COMELEC cannot, in the guise of enforcing and administering election laws or promulgating rules and
regulations to implement Sec. 36(g), validly impose qualifications on candidates for senator in addition to what the
Constitution prescribes. If Congress cannot require a candidate for senator to meet such additional qualification, the
COMELEC, to be sure, is also without such power. The right of a citizen in the democratic process of election should not be
defeated by unwarranted impositions of requirement not otherwise specified in the Constitution. Sec. 36(g) of RA 9165,
effectively enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. (SOCIAL JUSTICE
SOCIETY(SJS) v. DANGEROUS DRUGS BOARD(DDB), et al., G.R. No. 157870, November 3, 2008, VELASCO, JR., J.).

Defining factor of the PDAF or Pork Barrel of members of Congress.

The defining factor of all forms of Congressional Pork Barrel is the authority of legislators to participate in the
post-enactment phases of project implementation. At its core, legislators, may it be through project lists, prior
consultations or program menus, have been consistently accorded post-enactment authority to identify the projects they
desire to be funded through various Congressional Pork Barrel allocations. They are also granted the statutory authority to
participate in the area of fund release as well as fund realignment.
Legislators cannot exercise powers which they do not have, whether through formal measures written into the
law or informal practices institutionalized in government agencies, else the executive department be deprived of what the
Constitution has vested as its own. (Belgica, et al. v. Hon. Executive Secretary Paquito N. Ochoa, Jr., et al., G.R. No. 208566 &
companion cases, November 19, 2013).

Post-enactment measures like project identification, etc. not part of the oversight power of Congress.
These post-enactment measures which govern the areas of project identification, fund release and fund
realignment are not related to functions of congressional oversight and, hence, allow legislators to intervene and/or
assume duties that properly belong to the sphere of budget execution. Indeed, by virtue of the foregoing, legislators have
been, in one form or another, authorized to participate in – as Guingona, Jr. puts it – “the various operational aspects of
budgeting,” including “the evaluation of work and financial plans for individual activities” and the ―regulation and release
of funds” in violation of the separation of powers principle. The fundamental rule, as categorically articulated in Abakada,
cannot be overstated – from the moment the law becomes effective, any provision of law that empowers Congress or any
of its members to play any role in the implementation or enforcement of the law violates the principle of separation of
powers and is thus unconstitutional. That the said authority is treated as merely recommendatory in nature does not alter
its unconstitutional tenor since the prohibition, covers any role in the implementation or enforcement of the law. Towards
this end, the Court abandoned its ruling in Philconsa which sanctioned the conduct of legislator identification on the guise
that the same is merely recommendatory and, as such, respondents‘ reliance on the same faltered altogether. (Belgica, et
al. v. Hon. Exec. Sec. Ochoa, Jr., et al., G.R. No. 208566, November 19, 2013).

Power of Augmentation of Public Funds; Purposes of RA 8439.

R. A. No. 8439 was enacted as a manifestation of the State’s recognition of science and technology as an essential
component for the attainment of national development and progress. The law offers a program of human resources
development in science and technology to help realize and maintain a sufficient pool of talent and manpower that will
sustain the initiative for total science and technology mastery. In furtherance of this objective, the law not only ensures
scholarship programs and improved science and engineering education, but also affords incentives for those pursuing
careers in science and technology. Moreover, the salary scale of science and technology personnel is differentiated by R. A.
No. 8439 from the salary scales of government employees under the existing law.
Section 7 of R. A. No. 8439 confers the Magna Carta benefits consisting of additional allowances and benefits to
DOST officers and employees, such as honorarium, share in royalties, hazard, subsistence, laundry, and housing and
quarter allowances, longevity pay, and medical examination. But the Magna Carta benefits will remain merely paper
benefits without the corresponding allocation of funds in the GAA. (Nazareth v. The Hon. Reynaldo A. Villar, et al., G.R. No.
188635, January 29, 2013).

Limitations to the authority to transfer funds.

The authority granted to the President is subject to two essential requisites in order that a transfer of
appropriation from the agency’s savings would be validly effected. The first requires that there must be savings from the
authorized appropriation of the agency. The second demands that there must be an existing item, project, activity, purpose
or object of expenditure with an appropriation to which the savings would be transferred for augmentation purposes only.
(Nazareth v. Villar, et al., supra.).

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
(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])

20 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys

Power of Congress to select officers; political question.
The Senate shall elect its President and the House of Representatives, its Speaker, by a majority vote of all its
respective Members.
Each house shall choose such other officers as it may deem necessary (Sec. 16[1], Art. VI, Constitution).
Under this provision, the Speaker of the House of Representatives shall be elected by a majority vote of its entire
membership. Said provision also states that the House of Representatives may decide to have officers other than the
Speaker, and that the method and manner as to how these officers are chosen is something within its sole control
(Defensor-Santiago v. Guingona, 359 Phil. 276 (1998)). In the case of Defensor-Santiago v. Guingona, which involved a
dispute on the rightful Senate Minority Leader during the 11th Congress (1998-2001), the Court observed that "[w]hile
the Constitution is explicit on the manner of electing x x x [a Speaker of the House of Representatives] it is, however, dead
silent on the manner of selecting the other officers [of the Lower House]. All that the Charter says is that ‘each House shall
choose such other officers as it may deem necessary.' [As such], the method of choosing who will be such other officers is
merely a derivative of the exercise of the prerogative conferred by the aforequoted constitutional provision. Therefore,
such method must be prescribed by the [House of Representatives] itself, not by [the] Court" (Baguilat v. Alvarez, G.R. No.
227557, July 25, 2017).

Role of the Courts; political question.

Courts as a rule do not decide political questions. In any general rule, there lies an exception. While the Court in
taking jurisdiction over petitions questioning an act of the political departments of government, will not review the
wisdom, merits or propriety of such action, it will, however, strike it down on the ground of grave abuse of discretion
(Tanada v. Angara, 338 Phil. 546, 575 (1997)). This stems from the expanded concept of judicial power, which, under
Section 1, Article VIII of the 1987 Constitution, expressly "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." Case law decrees that "[t]he foregoing text emphasizes the judicial department's duty and power to
strike down grave abuse of discretion on the part of any branch or instrumentality of government including Congress. It is
an innovation in our political law. As explained by former Chief Justice Roberto Concepcion:
[T]he judiciary is the final arbiter on the question of whether or not a branch of government or
any of its officials has acted without jurisdiction or in excess of jurisdiction or so capriciously as to
constitute an abuse of discretion amounting to excess of jurisdiction. This is not only a judicial power but
a duty to pass judgment on matters of this nature.

Accordingly, the Court "will not shirk, digress from or abandon its sacred duty and authority to uphold the
Constitution in matters that involve grave abuse of discretion brought before it in appropriate cases, committed by any
officer, agency, instrumentality or department of the government" (Baguilat v. Alvarez, G.R. No. 227557, July 25, 2017).

President’s power to declare martial law; limitations.

Outside explicit constitutional limitations, the Commander-in-Chief clause in Article VII, Section 18 of the 1987
Constitution vests on the President, as Commander-in-Chief, absolute authority over the persons and actions of the
members of the armed forces, (B/Gen. Gudani v. Lt./Gen. Senga, 530 Phil. 398, 421-422 (2006)) in recognition that the
President, as Chief Executive, has the general responsibility to promote public peace, and as Commander-in-Chief, the
more specific duty to prevent and suppress rebellion and lawless violence. However, to safeguard against possible abuse
by the President of the exercise of his power to proclaim martial law and/or suspend the privilege of the writ of habeas
corpus, the 1987 Constitution, through the same provision, institutionalized checks and balances on the President's power
through the two other co-equal and independent branches of government, i.e., the Congress and the Judiciary. In particular,
Article VII, Section 18 of the 1987 Constitution requires the President to submit a report to the Congress after his
proclamation of martial law and/or suspension of the privilege of the writ of habeas corpus and grants the Congress the
power to revoke, as well as extend, the proclamation and/or suspension and vests upon the Judiciary the power to review
the sufficiency of the factual basis for such proclamation and/or suspension (Padilla, et al. v. Congress of the Phils., et al. &
companion cases, G.R. No. 231671, 231694, July 25, 2017, Leonardo-De Castro, J).

Four (4) Constitutional provisions relative to the role of Congress when the President declares Martial Law.
There are four provisions in Article VII, Section 18 of the 1987 Constitution specifically pertaining to the role of
the Congress when the President proclaims martial law and/or suspends the privilege of the writ of habeas corpus, viz. :
a. Within forty-eight ( 48) hours from the proclamation of martial law or the suspension of the privilege of the writ
of habeas corpus, the President shall submit a report in person or in writing to the Congress;
b. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may
revoke such proclamation or suspension, which revocation shall not be set aside by the President;
c. Upon the initiative of the_ President, the Congress may, in the same manner extend such proclamation or
suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist; and
d. The Congress, if not in session, shall within twenty-four hours (24) following such proclamation or suspension,
convene in accordance with its rules without need of call (Padilla, et al. v. Congress of the Phils., et al. &
companion cases, G.R. No. 231671, 231694, July 25, 2017, Leonardo-De Castro, J).

Congress to convene in joint session if it revokes the declaration of martial law.

The Constitution grants the Congress the power to revoke the President's proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus and prescribes how the Congress may exercise such power, i.e., by
a vote of at least a majority of all its Members, voting jointly, in a regular or special session. The use of the word "may" in
the provision - such that "[t]he Congress x x x may revoke such proclamation or suspension x x x" - is to be construed as
permissive and operating to confer discretion on the Congress on whether or not to revoke, but in order to revoke, the
same provision sets the requirement that at least a majority of the Members of the Congress, voting jointly, favor
revocation.
The provision does not actually refer to a "joint session." While it may be conceded, that the phrase "voting
jointly" shall already be understood to mean that the joint voting will be done "in joint session," notwithstanding the
21 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys
absence of clear language in the Constitution,still, the requirement that "[t]he Congress, voting jointly, by a vote of at least
a majority of all its Members in regular or special session, x x x" explicitly applies only to the situation when the Congress
revokes the President's proclamation of martial law and/or suspension of the privilege of the writ of habeas corpus. Simply
put, the provision only requires Congress to vote jointly on the revocation of the President's proclamation and/or
suspension (Padilla, et al. v. Congress of the Phils., et al. & companion cases, G.R. No. 231671, 231694, July 25, 2017,
Leonardo-De Castro, J).

When Congress required to vote jointly when martial law is declared; when it revokes proclamation.
The Congress is only required to vote jointly on the revocation of the President's proclamation of martial law
and/or suspension of the privilege of the writ of habeas corpus. The deliberations on Article VII, Section 18 of the 1986
ConCom do not reveal a manifest intent of the framers to make it mandatory for the Congress to convene in joint session
following the President's proclamation and/or suspension, so it could deliberate as a single body, regardless of whether its
Members will concur in or revoke the President's proclamation and/or suspension (Padilla, et al. v. Congress of the Phils.,
et al. & companion cases, G.R. No. 231671, 231694, July 25, 2017, Leonardo-De Castro, J).
The provision in Article VII, Section 18 of the 1987 Constitution requiring the Congress to vote jointly in a joint
session is specifically for the purpose of revocation of the President's proclamation of martial law and/or suspension of
the privilege of the writ of habeas corpus. In the petitions at bar, the Senate and House of Representatives already
separately adopted resolutions expressing support for President Duterte's Proclamation No. 216. Given the express
support of both Houses of the Congress for Proclamation No. 216, and their already evident lack of intent to revoke the
same, the provision in Article VII, Section 18 of the 1987 Constitution on revocation did not even come into operation and,
therefore, there is no obligation on the part of the Congress to convene in joint session (Padilla, et al. v. Congress of the
Phils., et al. & companion cases, G.R. No. 231671, 231694, July 25, 2017, Leonardo-De Castro, J).

Note: Extension of martial law is done upon initiative of the President with the concurrence of Congress. As t time
limitation of the extension, it is dependent upon the discretion of Congress (Lagman v. Medialdea, February 6, 2018)

Period of imprisonment for contempt during inquiries in aid of legislation.

The contempt power of the legislature under our Constitution is sourced from the American system. The
Congress' inherent power of contempt must have a limitation. In the 1821 landmark case of Anderson v. Dunn,the Supreme
Court of the United States (SCOTUS) held that although the offense committed under the inherent power of contempt by
Congress may be undefinable, it is justly contended that the punishment need not be indefinite. It held that as the
legislative body ceases to exist from the moment of its adjournment or periodical dissolution, then it follows that
imprisonment under the contempt power of Congress must terminate with adjournment (Balag v. Senate of the Phils., et
al., G.R. No. 234608, July 3, 2018, Gesmundo, J).

Imprisonment by Congress in our jurisdiction; powers of preservation.

In our jurisdiction, the period of the imprisonment for contempt by Congress was first discussed in Lopez v. De
Los Reyes, 55 Phil. 170 [1930](Lopez). In that case, on September 16, 1930, the petitioner therein was cited in contempt by
the House of Representatives for physically attacking their member. However, the assault occurred during the Second
Congress, which adjourned on November 8, 1929. The Court ruled therein that there was no valid exercise of the inherent
power of contempt because the House of Representatives already adjourned when it declared the petitioner in contempt.
Imprisonment for a term not exceeding the session of the deliberative body in which the contempt occurred was
the limit of the authority to deal directly by way of contempt, without criminal prosecution. The power of contempt is
limited to imprisonment during the session of the legislative body affected by the contempt. The Court also discussed the
nature of Congress' inherent power of contempt as follows:
The power to find in contempt rests fundamentally on the power of self-preservation. That is
true even of contempt of court where the power to punish is exercised on the preservative and not on
the vindictive principle. Where more is desired, where punishment as such is to be imposed, a criminal
prosecution must be brought, and in all fairness to the culprit, he must have thrown around him all the
protections afforded by the Bill of Rights.Proceeding a step further, it is evident that, while the legislative
power is perpetual, and while one of the bodies composing the legislative power disappears only every
three years, yet the sessions of that body mark new beginnings and abrupt endings, which must be
respected.

If the House of Representatives desires to punish the person cited in contempt beyond its adjournment, then
criminal prosecution must be brought. In that instance, the said person shall be given an opportunity to defend himself
before the courts (Balag v. Senate of the Phils., et al., G.R. No. 234608, July 3, 2018, Gesmundo, J).

Statements in media interviews are not covered by the parliamentary "speech or debate" privilege.
Petitioner admitted that he uttered the questioned statements, describing private respondent as former VP
Binay's "front" or "dummy" in connection with the so-called Hacienda Binay, in response to media interviews during gaps
and breaks in plenary and committee hearings in the Senate.With Jimenez as our guidepost, it is evident that petitioner's
remarks fall outside the privilege of speech or debate under Section 11, Article VI of the 1987 Constitution. The statements
were clearly not part of any speech delivered in the Senate or any of its committees. They were also not spoken in the
course of any debate in said fora. It cannot likewise be successfully contended that they were made in the official discharge
or performance of petitioner's duties as a Senator, as the remarks were not part of or integral to the legislative process
(Trillanes IV v. Hon. Evangeline Castillo-Marigomen, et al., G.R. No. 223451, March 14, 2018, Tijam, J).

Effect of speech or utterance made outside of sessions.

Parliamentary non-accountability cannot be invoked when the lawmaker's speech or utterance is made outside
sessions, hearings or debates in Congress, extraneous to the '"due functioning of the (legislative) process." To participate
in or respond to media interviews is not an official function of any lawmaker; it is not demanded by his sworn duty nor is it
a component of the process of enacting laws. Indeed, a lawmaker may well be able to discharge his duties and legislate
without having to communicate with the press. A lawmaker's participation in media interviews is not a legislative act, but
22 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys
is "political in nature," outside the ambit of the immunity conferred under the Speech or Debate Clause in the 1987
Constitution. Contrary to petitioner's stance, therefore, he cannot invoke parliamentary immunity to cause the dismissal of
private respondent's Complaint. The privilege arises not because the statement is made by a lawmaker, but because it is
uttered in furtherance of legislation.

Purpose of privilege.
The Speech or Debate Clause in our Constitution did not turn our Senators and Congressmen into "super-citizens"
whose spoken words or actions are rendered absolutely impervious to prosecution or civil action. The Constitution
conferred the privilege on members of Congress "not for their private indulgence, but for the public good." It was intended
to protect them against government pressure and intimidation aimed at influencing their decision-making prerogatives.
Such grant of legislative privilege must perforce be viewed according to its purpose and plain language. Indeed, the
privilege of speech or debate, which may "(enable) reckless men to slander and even destroy others," is not a cloak of
unqualified impunity; its invocation must be "as a means of perpetuating inviolate the functioning process of the
legislative department." As this Court emphasized in Pobre, "the parliamentary non-accountability thus granted to
members of Congress is not to protect them against prosecutions for their own benefit, but to enable them, as the people's
representatives, to perform the functions of their office without fear of being made responsible before the courts or other
forums outside the congressional hall" (Trillanes IV v. Hon. Evangeline Castillo-Marigomen, et al., G.R. No. 223451, March
14, 2018, Tijam, J).

ARTICLE VII – Executive Department

Concept or nature of the faithful execution clause.

The faithful execution clause is best construed as an obligation imposed on the President, not a separate grant of
power. It simply underscores the rule of law and, corollarily, the cardinal principle that the President is not above the laws
but is obliged to obey and execute them. This is precisely why the law provides that "administrative or executive acts,
orders and regulations shall be valid only when they are not contrary to the laws or the Constitution." (NATIONAL ARTIST
FOR LITERATURE VIRGILIO ALMARIO, et al. v. THE EXECUTIVE SECRETARY, et al., G.R. No. 189028, July 16, 2013).

Power of control of the President; extent.

The LNMB is considered as a national shrine for military memorials. The PVAO, which is empowered to
administer, develop, and maintain military shrines, is under the supervision and control of the DND. The DND, in turn, is
under the Office of the President.
The presidential power of control over the Executive Branch of Government is a self-executing provision of the
Constitution and does not require statutory implementation, nor may its exercise be limited, much less withdrawn, by the
legislature (See National Electrification Administration v. COA, 427 Phil. 464, 485 [2002]). This is why President Duterte is
not bound by the alleged 1992 Agreement between former President Ramos and the Marcos family to have the remains of
Marcos interred in Batac, Ilocos Norte. As the incumbent President, he is free to amend, revoke or rescind political
agreements entered into by his predecessors, and to determine policies which he considers, based on informed judgment
and presumed wisdom, will be most effective in carrying out his mandate (Ocampo v. Rear Admiral Ernesto Enriquez, et
al., G.R. No. 225973, November 8, 2016).

Effect/s if the heads of offices are allowed to transfer funds within their respective offices..
By allowing to the heads of offices some power to transfer funds within their respective offices, the Constitution
itself ensures the fiscal autonomy of their offices, and at the same time maintains the separation of powers among the
three main branches of the Government. In Bengzon v. Drilon, G.R. No. 103524, April 15, 1992, 208 SCRA 133, 150, it was
said that the Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence and flexibility
needed in the discharge of their constitutional duties. The imposition of restrictions and constraints on the manner the
independent constitutional offices allocate and utilize the funds appropriated for their operations is anathema to fiscal
autonomy and violative not only of the express mandate of the Constitution but especially as regards the Supreme Court,
of the independence and separation of powers upon which the entire fabric of our constitutional system is based.
In the case of the President, the power to transfer funds from one item to another within the Executive has not
been the mere offshoot of established usage, but has emanated from law itself. It has existed since the time of the
American Governors-General. Act No. 1902 (An Act authorizing the Governor-General to direct any unexpended balances of
appropriations be returned to the general fund of the Insular Treasury and to transfer from the general fund moneys which
have been returned thereto), passed on May 18, 1909 by the First Philippine Legislature, was the first enabling law that
granted statutory authority to the President to transfer funds. The authority was without any limitation, for the Act
explicitly empowered the Governor-General to transfer any unexpended balance of appropriations for any bureau or
office to another, and to spend such balance as if it had originally been appropriated for that bureau or office. (Araullo, et
al. v. Aquino III, et al., G.R. No. 209135 & companion cases, July 11, 2014).

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 Art. VI, Section 25(5) 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 for their respective offices; and
(3) The purpose of the transfer is to augment an item in the general appropriations law for their respective offices.
(Araullo, et al. v. Aquino III, et al., G.R. No. 209135 & companion cases, July 11, 2014).

Concept of “savings.”
Savings refer to portions or balances of any programmed appropriation in the GAA free from any obligation or
encumbrance which are: (i) still available after the completion or final discontinuance or abandonment of the work,
23 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys
activity or purpose for which the appropriation is authorized; (ii)from appropriations balances arising from unpaid
compensation and related costs pertaining to vacant positions and leaves of absence without pay; and (iii) from
appropriations balances realized from the implementation of measures resulting in improved systems and efficiencies and
thus enabled agencies to meet and deliver the required or planned targets, programs and services approved at a lesser
cost.
The three instances are a sure indication that savings could be generated only upon the purpose of the
appropriation being fulfilled, or upon the need for the appropriation being no longer existent. (Araullo, et al. v. Aquino III,
et al., G.R. No. 209135 & companion cases, July 11, 2014, Bersamin, J).

President or other officers not authorized to, cross-broader transfer funds.

Although the Executive was authorized to spend in line with its mandate to faithfully execute the laws (which
included the GAAs), such authority did not translate to unfettered discretion that allowed the President to substitute his
own will for that of Congress. He was still required to remain faithful to the provisions of the GAAs, given that his power to
spend pursuant to the GAAs was but a delegation to him from Congress. Verily, the power to spend the public wealth
resides in Congress, not in the Executive. Moreover, leaving the spending power of the Executive unrestricted would
threaten to undo the principle of separation of powers. (Araullo, et al. v. Aquino III, et al., G.R. No. 209135 & companion
cases, July 11, 2014, Bersamin, J).

Requirement that should be met if there is augmentation of funds.

Should there be augmentation of savings, it is required that there should be an item in the project to which the
savings may be transferred. In Nazareth v. Villar, G.R. No. 188635, January 29, 2013, 689 SCRA 385, it was ruled that there
must be an existing item, project or activity, purpose or object of expenditure with an appropriation to which savings may
be transferred for the purpose of augmentation. Accordingly, so long as there is an item in the GAA for which Congress had
set aside a specified amount of public fund, savings may be transferred thereto for augmentation purposes. This
interpretation is consistent not only with the Constitution and the GAAs, but also with the degree of flexibility allowed to
the Executive during budget execution in responding to unforeseeable contingencies. (Araullo, et al. v. Aquino III, et al.,
supra).

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])

Operative Fact Doctrine Applied in the DAP (Disbursement Acceleration Program) Case
The doctrine of operative fact is 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.
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])

Power of appointment of Justices at SB; clustering of nominees is not constitutional.

The power to recommend of the JBC cannot be used to restrict or limit the President's power to appoint as the
latter's prerogative to choose someone whom he/she considers worth appointing to the vacancy in the Judiciary is still
paramount. As long as in the end, the President appoints someone nominated by the JBC, the appointment is valid.
President Aquino was not obliged to appoint one new Sandiganbayan Associate Justice from each of the six shortlists
submitted by the JBC, especially when the clustering of nominees into the six shortlists encroached on President Aquino's
power to appoint members of the Judiciary from all those whom the JBC had considered to be qualified for the same
positions of Sandiganbayan Associate Justice.
The JBC, in sorting the qualified nominees into six clusters, one for every vacancy, could influence the
appointment process beyond its constitutional mandate of recommending qualified nominees to the President. Clustering
impinges upon the President's power of appointment, as well as restricts the chances for appointment of the qualified
nominees, because (1) the President's option for every vacancy is limited to
the five to seven nominees in the cluster; and (2) once the President has appointed from one cluster, then he is proscribed
from considering the other nominees in the same cluster for the other vacancies. The said limitations are utterly without
legal basis and in contravention of the President's appointing power (Hon. Philip Aguinaldo, et al. v. Aquino, et al., G.R. No.
224302, November 29, 2016, Leonardo-De Castro, J).
24 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys
Nature of the power to deport; Act of State; subject to judicial review.
It is beyond cavil that the BI has the exclusive authority and jurisdiction to try and hear cases against an alleged
alien, and that the BOC has jurisdiction over deportation proceedings. Nonetheless, Article VIII, Section 1 of the
Constitution has vested power of judicial review in the Supreme Court and the lower courts such as the CA, as established
by law. Although the courts are without power to directly decide matters over which full discretionary authority has been
delegated to the legislative or executive branch of the government and are not empowered to execute absolutely their own
judgment from that of Congress or of the President, (Tatad vs. Secretary of the Department of Energy, G.R. No. 124360,
November 5, 1997, 281 SCRA 330, 347; Ledesma vs. CA, G.R. No. 113216, September 5, 1997, 278 SCRA 656, 681; Tañada
vs. Angara, G.R. No. 118295, May 2, 1997, 272 SCRA 18, 48-49), the Court may look into and resolve questions of whether
or not such judgment has been made with grave abuse of discretion, when the act of the legislative or executive
department is contrary to the Constitution, the law or jurisprudence, or when executed whimsically, capriciously or
arbitrarily out of malice, ill will or personal bias. (Republic vs. Garcia, G.R. No. 167741, July 12, 2007, 527 SCRA 495, 502;
Information Technology Foundation of the Philippines vs. Commission on Elections, G.R. No. 159139, January 13, 2004,
419 SCRA 141, 148; Domingo vs. Scheer, 466 Phil. 235 (2004); House of Sara Lee vs. Rey, 500 SCRA 419 (2006); Secretary
of Justice, et al. vs. Christopher Roruga, G.R. No. 166199, April 24, 2009).

Solicitor General may not be designated as Acting Secretary of Justice.

The designation is void, hence, unconstitutional. Sec. 13, Article VII of the Constitution provides that the Members
of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in the Constitution, hold any other
office or employment during their tenure. Likewise, Sec. 7(2), Art. IX-B of the Constitution provides that unless otherwise
allowed by law or the primary functions of his position, no appointive official shall hold any other office or employment in
the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries.
Being designated as the Acting Secretary of Justice concurrently with his position of Acting Solicitor General,
therefore, Agra was undoubtedly covered by Section 13, Article VII. Hence, Agra could not validly hold any other office or
employment during his tenure as the Acting Solicitor General, because the Constitution has not otherwise so provided.
(Funa v. Acting Sec. of Justice Alberto N. Agra, et al., G.R. No. 191644, February 19, 2013).

Exceptions to the prohibition against holding multiple positions.

According to Public Interest Center, Inc. v. Elma, G.R. No. 138965, June 30, 2006, 494 SCRA 53, the only two
exceptions against the holding of multiple offices are: (1) those provided for under the Constitution, such as Section 3,
Article VII, authorizing the Vice President to become a member of the Cabinet; and (2) posts occupied by Executive
officials specified in Section 13, Article VII without additional compensation in ex officio capacities as provided by law and
as required by the primary functions of the officials’ offices. (Funa v. Acting Sec. of Justice Alberto N. Agra, et al., G.R. No.
191644, February 19, 2013).

Pardoning power of the President cannot be limited by legislative action.

The 1987 Constitution, specifically Section 19 of Article VII and Section 5 of Article IX-C, provides that the
President of the Philippines possesses the power to grant pardons, along with other acts of executive clemency, to wit:
The only instances in which the President may not extend pardon remain to be in: (1) impeachment cases; (2)
cases that have not yet resulted in a final conviction; and (3) cases involving violations of election laws, rules and
regulations in which there was no favorable recommendation coming from the COMELEC. Therefore, it can be argued that
any act of Congress by way of statute cannot operate to delimit the pardoning power of the President.
In Cristobal v. Labrador, 71 Phil. 34, 38 [1940] and Pelobello v. Palatino,72 Phil. 441, 442 [1941] the SC declared
that “subject to the limitations imposed by the Constitution, the pardoning power cannot be restricted or controlled by
legislative action.” In Monsanto v. Factoran, Jr. it was also said that a pardon, being a presidential prerogative, should not
be circumscribed by legislative action. 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. (Atty.
Risos-Vidal v. COMELEC, et l., supra.).

Duty of the State to protect its citizens, represented by the President; Constitutional provision on such duty.
The 1987 Constitution has “vested the executive power in the President of the Republic of the Philippines”
(Constitution, Art. VII, Sec. 1). While the vastness of the executive power that has been consolidated in the person of the
President cannot be expressed fully in one provision, the Constitution has stated the prime duty of the government, of
which the President is the head:
The prime duty of the Government is to serve and protect the people. The Government may call
upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under
conditions provided by law, to render personal military or civil service. (Sec. 4, Article II, Constitution;
Rene A.V. Saguisag, et al. v. Executive Secretary, et al., G.R. No. 212426 and companion cases, January 12,
2016, Sereno, J)

The duty to protect the State and its people must be carried out earnestly and effectively throughout the whole
territory of the Philippines in accordance with the Constitutional provision on national territory. Hence, the President of
the Philippines, as the sole repository of executive power, is the guardian of the Philippine archipelago, including all the
islands and waters embraced therein and all other territories over which it has sovereignty or jurisdiction. These
territories consist of its terrestrial, fluvial, and aerial domains; including its territorial sea, the seabed, the subsoil, the
insular shelves, and other submarine areas; and the waters around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions.

How the President carries out such important duty.

To carry out this important duty, the President is equipped with authority over the Armed Forces of the
Philippines (AFP), which is the protector of the people and the state. The AFP's role is to secure the sovereignty of the
State and the integrity of the national territory. In addition, the Executive is Constitutionally empowered to maintain peace
25 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys
and order; protect life, liberty, and property; and promote the general welfare (Constitution, Art. II, Sec. 3). In recognition
of these powers, Congress has specified that the President must oversee, ensure, and reinforce our defensive capabilities
against external and internal threats (seeConstitution, Art. VII, Sec. 18 in relation to Art. II, Secs. 3, 4 &7; Executive Order
No. 292 [Administrative Code of 1987], Book IV [Executive Branch], Title VIII [National Defense], Secs. l, 15, 26 &33
[hereinafter Administrative Code of 1987]) and, in the same vein, ensure that the country is adequately prepared for all
national and local emergencies arising from natural and man-made disasters. (Administrative Code of 1987, Book IV
[Executive Branch], Title XII [Local Government], Sec. 3[5]; Saguisag, et al. v. Executive Secretary, et al., G.R. No. 212426
and companion cases, January 12, 2016, Sereno, J)

Power absolute not absolute.

This power is limited by the Constitution itself, because the President may call out the AFP to prevent or suppress
instances of lawless violence, invasion or rebellion, (Constitution, Art. VII, Sec. 18) but not suspend the privilege of the writ
of habeas corpus for a period exceeding 60 days, or place the Philippines or any part thereof under martial law exceeding
that same span. In the exercise of these powers, the President is also duty-bound to submit a report to Congress, in person
or in writing, within 48 hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus; and Congress may in turn revoke the proclamation or suspension. The same provision provides for the Supreme
Court's review of the factual basis for the proclamation or suspension, as well as the promulgation of the decision within
30 days from filing. (Saguisag, et al. v. Executive Secretary, et al., G.R. No. 212426 and companion cases, January 12, 2016,
Sereno, J)

Martial law power; meaning of appropriate proceedings covered by Sec. 18[3], Article VII of the Constitution.
Section 18[3], Article VII (Executive Department) of the 1987 Constitution which provides:
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the
writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

The phrase "in an appropriate proceeding" does not refer to a Petition for Certiorari pursuant to Section 1 or
Section 5 of Article VIII. The standard of review in a petition for certiorari is whether the respondent has committed any
grave abuse of discretion amounting to lack or excess of jurisdiction in the performance of his or her functions. Thus, it is
not the proper tool to review the sufficiency of the factual basis of the proclamation or suspension. Under Section 18,
Article VII, the Court is tasked to review the sufficiency of the factual basis of the President's exercise of emergency
powers. Put differently, if the Court applies the standard of review used in a petition for certiorari, the same would
emasculate its constitutional task under Section 18, Article VII (Rep. Ecel Lagman, et al. v. Hon. Medialdea, et al., G.R. No.
231658, July 4, 2017, Del Castillo, J).

Unique features of the third paragraph of Section 18, Article VII make it sui generis.
The unique features of the third paragraph of Section 18, Article VII clearly indicate that it should be treated as sui
generis separate and different from those enumerated in Article VIII. Under the third paragraph of Section 18, Article VII, a
petition filed pursuant therewith will follow a different rule on standing as any citizen may file it. Said provision of the
Constitution also limits the issue to the sufficiency of the factual basis of the exercise by the Chief Executive of his
emergency powers. The usual period for filing pleadings in Petition for Certiorari is likewise not applicable under the third
paragraph of Section 18, Article VII considering the limited period within which this Court has to promulgate its decision.
The phrase "in an appropriate proceeding" appearing on the third paragraph of Section 18, Article VII refers to
any action initiated by a citizen for the purpose of questioning the sufficiency of the factual basis of the exercise of the
Chief Executive's emergency powers, as in these cases. It could be denominated as a complaint, a petition, or a matter to be
resolved by the Court (Rep. Ecel Lagman, et al. v. Hon. Medialdea, et al., G.R. No. 231658, July 4, 2017, Del Castillo, J).

Extent of the powers of Congress and Court on declaration of martial law.

The Court may strike down the presidential proclamation in an appropriate proceeding filed by any citizen on the
ground of lack of sufficient factual basis. On the other hand, Congress may revoke the proclamation or suspension, which
revocation shall not be set aside by the President.
In reviewing the sufficiency of the factual basis of the proclamation or suspension, the Court considers only the
information and data available to the President prior to or at the time of the declaration; it is not allowed to "undertake an
independent investigation beyond the pleadings."On the other hand, Congress may take into consideration not only data
available prior to, but likewise events supervening the declaration. Unlike the Courtwhich does not look into the absolute
correctness of the factual basis, Congress could probe deeper and further; it can delve into the accuracy of the facts
presented before it (Rep. Ecel Lagman, et al. v. Hon. Medialdea, et al., G.R. No. 231658, July 4, 2017, Del Castillo, J).

The judicial power to review versus the congressional power to revoke.

The Court's review power is passive; it is only initiated by the filing of a petition "in an appropriate proceeding"
by a citizen. On the other hand, Congress' review mechanism is automatic in the sense that it, may be activated by
Congress itself at any time after the proclamation or suspension was made.
Thus, the power to review by the Court and the power to revoke by Congress are not only totally different but
likewise independent from each other although concededly, they have the same trajectory, which is, the nullification of the
presidential proclamation. Needless to say, the power of the Court to review can be exercised independently from the
power of revocation of Congress.
The framers of the 1987 Constitution was to vest the Court and Congress with veto powers independently from
each other (Rep. Ecel Lagman, et al. v. Hon. Medialdea, et al., G.R. No. 231658, July 4, 2017, Del Castillo, J).

Extraordinary powers; exercised if there is actual rebellion.

The extraordinary powers of suspending the privilege of the writ of habeas corpus and/or declaring martial law
may be exercised only when there is actual invasion or rebellion, and public safety requires it. The 1987 Constitution
imposed the following limits in the exercise of these powers:"(1) a time limit of sixty days; (2) review and possible

26 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys

revocation by Congress; [and] (3) review and possible nullification by the Supreme Court” (Rep. Edcel Lagman, et al. v.
Hon. Medialdea, et al., G.R. No. 231658, July 4, 2017, Del Castillo, J).

Police power exercised during martial law by the President.

A state of martial law is peculiar because the President, at such a time, exercises police power, which is normally a
function of the Legislature. In particular, the President exercises police power, with the military
assistance, to ensure public safety and in place of government agencies which for the time being are unable to cope with
the condition in a locality, which remains under the control of the State.
In David v. President Macapagal-Arroyo, it was said that under a valid declaration of martial law, the President as
Commander-in-Chief may order the "(a) arrests and seizures without judicial warrants; (b) ban on public assemblies; (c)
[takeover] of news media and agencies and press censorship; and ( d) issuance of Presidential Decrees x x x".

Probable cause is the allowable standard of proof for thePresident.

In determining the existence of rebellion, the President only needs to convince himself that there is probable
cause or evidence showing that more likely than not a rebellion was committed or is being committed. To require him to
satisfy a higher standard of proof would restrict the exercise of his emergency powers. Along this line, the President needs
only to satisfy probable cause as the standard of proof in determining the existence of either invasion or rebellion for
purposes of declaring martial law, and that probable cause is the most reasonable, most practical and most expedient
standard by which the President can fully ascertain the existence or non-existence of rebellion necessary for a declaration
of martial law or suspension of the writ. This is because unlike other standards of proof, which, in order to be met, would
require much from the President and therefore unduly restrain his exercise of emergency powers, the requirement of
probable cause is much simpler. It merely necessitates an "average man to weigh the facts and circumstances without
resorting to the calibration of the rules of evidence of which he has no technical knowledge. He merely relies on common
sense and x x x needs only to rest on evidence showing that, more likely than not, a crime has been committed x x x by the
accused" (Rep. Edcel Lagman, et al. v. Hon. Medialdea, et al., G.R. No. 231658, July 4, 2017, Del Castillo, J).

Burden of proof to show insufficiency of the bases by the President falls in the petitioners.
The burden of proof to show insufficiency in the bases of the President in declaring martial law and suspending
the privilege of the writ of habeas corpus lies on the shoulders of the citizen initiating the proceedings. Such laying of the
burden of proof is constitutional, natural and practical – constitutional, because the President is entitled to the strong
presumption of the constitutionality of his or her acts as the Chief Executive and head of one of the great branches of
Government; natural, because the dutiful performance of an official duty by the President is always presumed; (Dimapilis-
Baldoz v. Commission on Audit, G.R. No. 199914, July 16, 2013, 701 SCRA 318); and practical, because the alleging party is
expected to have the proof to substantiate the allegation.

Foreign relations.
There is a broad range of vitally important areas that must be regularly decided by the Executive Department
without either challenge or interference by the Judiciary. One such area involves the delicate arena of foreign relations. It
would be strange indeed if the courts and the executive spoke with different voices in the realm of foreign policy. Precisely
because of the nature of the questions presented, and the lapse of more than 60 years since the conduct complained of, we
make no attempt to lay down general guidelines covering other situations not involved here, and confine the opinion only
to the very questions necessary to reach a decision on this matter.
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.
(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 power and duty to conduct foreign relations; its nature; reason for the rule.
The President carries the mandate of being the sole organ in the conduct of foreign relations (SeeConstitution,
Art. VII, Sec. 1 in relation to Administrative Code of 1987, Book IV [Executive Branch], Title I Foreign Affairs), Secs. 3[1]
and 20; Akbayan Citizens Action Party v. Aquino, 580 Phil. 422 [2008]; Pimentel v. Office of the Executive Secretary, 501
Phil. 303 (2005); People's Movement for Press Freedom v. Manglapus, G.R. No. 84642, 13 September 1988 (unreported)
(citing United States v. Curtiss-Wright Export Corp., 299 U.S. 304 [1936]); Joaquin Bernas, Foreign Relations in
Constitutional Law, 101 (1995); Irene R. Cortes, The Philippine Presidency: A Study of Executive Power 187 [1966];
Vicente G. Sinco, Philippine Political Law: Principles and Concepts 297 [10th ed., 1954]). Since every state has the capacity
to interact with and engage in relations with other sovereign states (See1933 Montevideo Convention on the Rights and
Duties of States, Art. 1, 165 LNTS 19; James Crawford, The Creation of States in International Law 61 [2"d ed. 2007]),it is
but logical that every state must vest in an agent the authority to represent its interests to those other sovereign states
(Saguisag, et al. v. Executive Secretary, et al., supra).

Role of the Senate in relation to the power of the President as the sole organ in international relations.
The power to defend the State and to act as its representative in the international sphere inheres in the person of
the President. This power, however, does not crystallize into absolute discretion to craft whatever instrument the Chief
Executive so desires. The Senate has a role in ensuring that treaties or international agreements the President enters into,
as contemplated in Section 21 of Article VII of the Constitution, obtain the approval of two-thirds of its members (Saguisag,
et al. v. Executive Secretary, et al., supra).

Nature of Enhanced Defense Cooperation Agreement [EDCA].

EDCA authorizes the U.S. military forces to have access to and conduct activities within certain "Agreed
Locations" in the country. It was not transmitted to the Senate on the executive's understanding that to do so was no
longer necessary. Accordingly, in June 2014, the Department of Foreign Affairs (DFA) and the U.S. Embassy exchanged

27 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys

diplomatic notes confirming the completion of all necessary internal requirements for the agreement to enter into force in
the two countries. (Saguisag, et al. v. Executive Secretary, et al., supra)

Contention that VFA is unconstitutional, violation of equal protection clause.

The equal protection clause is not violated, because there is a substantial basis for a different treatment of a
member of a foreign military armed forces allowed to enter our territory and all other accused.
The rule in international law is that a foreign armed forces allowed to enter one’s territory is immune from local
jurisdiction, except to the extent agreed upon. The Status of Forces Agreements involving foreign military units around the
world vary in terms and conditions, according to the situation of the parties involved, and reflect their bargaining power.
But the principle remains, i.e., the receiving State can exercise jurisdiction over the forces of the sending State only to the
extent agreed upon by the parties.
As a result, the situation involved is not one in which the power of the Court to adopt rules of procedure is
curtailed or violated, but rather one in which, as is normally encountered around the world, the laws (including rules of
procedure) of one State do not extend or apply — except to the extent agreed upon — to subjects of another State due to
the recognition of extraterritorial immunity given to such bodies as visiting foreign armed forces.
Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or some aspects of
jurisdiction (such as custody), in relation to long-recognized subjects of such immunity like Heads of State, diplomats and
members of the armed forces contingents of a foreign State allowed to enter another State’s territory. On the contrary, the
Constitution states that the Philippines adopts the generally accepted principles of international law as part of the law of
the land. (Art. II, Sec. 2; Laude, et al. v. Hon. Roline M. Ginez-Jabalde, et al., G.R. No. 217456, November 24, 2015, Leonen, J).

Basis why EDCA is an executive agreement.

EDCA can be in the form of an executive agreement, since it merely involves "adjustments in detail" in the
implementation of the MDT and the VFA. There are existing treaties between the Philippines and the U.S. that have already
been concurred in by the Philippine Senate and have thereby met the requirements of the Constitution under Section 25.
Because of the status of these prior agreements, EDCA need not be transmitted to the Senate. (Saguisag, et al. v. Executive
Secretary, et al., G.R. No. 212426 and companion cases, January 12, 2016, Sereno, J)

Distinguishing feature of executive agreements.

One of the distinguishing features of executive agreements is that their validity and effectivity are not affected by
a lack of Senate concurrence.(Commissioner of Customs v. Eastern Sea Trading, supra). This distinctive feature was
recognized as early as in Eastern Sea Trading ( 1961 ), where the Supreme Court ruled that treaties are formal documents
which require ratification with the approval of two-thirds of the Senate. Executive agreements become binding through
executive action without the need of a vote by the Senate. (Saguisag, et al. v. Executive Secretary, et al., G.R. No. 212426 and
companion cases, January 12, 2016, Sereno, J)

The President is granted a vast power to enter into executive agreements; role of the Supreme Court.
In the field of external affairs, the President must be given a larger measure of authority and wider discretion,
subject only to the least amount of checks and restrictions under the Constitution. The rationale behind this power and
discretion was recognized by the Court in Vinuya v. Executive Secretary.
Section 9 of Executive Order No. 459, or the Guidelines in the Negotiation of International Agreements and its
Ratification, thus, correctly reflected the inherent powers of the President when it stated that the DF A "shall determine
whether an agreement is an executive agreement or a treaty."
Accordingly, in the exercise of its power of judicial review, the Court does not look into whether an international
agreement should be in the form of a treaty or an executive agreement, save in cases in which the Constitution or a statute
requires otherwise. Rather, in view of the vast constitutional powers and prerogatives granted to the President in the field
of foreign affairs, the task of the Court is to determine whether the international agreement is consistent with the
applicable limitations (Saguisag, et al. v. Executive Secretary, et al., G.R. No. 212426 and companion cases, January 12,
2016, Sereno, J). This is so because of the principle of separation of powers that the SC cannot intrude into the wisdom of
the Executive Department.

Rights of a person in deportation proceedings; no deportation of Filipino.

When the evidence submitted by a respondent is conclusive of his citizenship, the right to immediate review
should also be recognized and the courts should promptly enjoin the deportation proceedings. A citizen is entitled to live
in peace, without molestation from any official or authority, and if he is disturbed by a deportation proceeding, he has the
unquestionable right to resort to the courts for his protection, either by a writ of habeas corpus or of prohibition, on the
legal ground that the Board lacks jurisdiction. If he is a citizen and evidence thereof is satisfactory, there is no sense nor
justice in allowing the deportation proceedings to continue, granting him the remedy only after the Board has finished its
investigation of his undesirability (Chua Hiong vs. Deportation Board (96 Phil. 665 [1955]).
If a person has already been declared and recognized as a Philippine citizen by the BI and the DOJ, he must be
protected from summary deportation proceedings.
True, "[t]he power to deport an alien is an act of the State. It is an act by or under the authority
of the sovereign power. It is a police measure against undesirable aliens whose presence in the country
is found to be injurious to the public good and domestic tranquility of the people." However, in this
controversy, petitioner is not an alien. He is a Filipino citizen duly recognized by the BI, the DOJ and the
DFA xx x (Republic, et al. v. Harp, G.R. No. 188829, June 13, 2016, Sereno, CJ).

ARTICLE VIII – Judiciary Department

Requisites of the power of judicial review.

The power of judicial review is subject to limitations, to wit: (1) there must be an actual case or controversy
calling for the exercise of judicial power; (2) the person challenging the act must have the standing to question the validity
of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he
has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be
28 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys
raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case. (Lawyers
Against Monopoly and Poverty (LAMP) v. The Secretary of Budget and Management, G.R. No. 164987, April 24, 2012, 670
SCRA 373, 382; Funa v. The Chaiman, CSC Francisco Duque III, et al., G.R. No. 191672, November 25, 2014, Bersamin, J;
Saguisag, et al. v. Executive Secretary, et al., G.R. No. 212426 and companion cases, January 12, 2016, Sereno, J).

Concept of the power of judicial review.

The power of judicial review specially refers to both the authority and the duty of this Court to determine
whether a branch or an instrumentality of government has acted beyond the scope of the latter's constitutional powers
(See: Chavez v. Judicial and Bar Council, G.R. No. 202242, 17 July 2012, 676 SCRA 579; Tagolino v. House of
Representatives Electoral Tribunal, G.R. No. 202202, 19 March 2013, 693 SCRA 574; Gutierrez v. House of Representatives
Committee on Justice, 658 Phil. 322 (2011); Francisco v. House of Representatives, supra; Demetria v. Alba, 232 Phil. 222
[1987]). As articulated in Section 1, Article VIII of the Constitution, the power of judicial review involves the power to
resolve cases in which the questions concern the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation. In Angara v. Electoral
Commission, this Court exhaustively discussed this "moderating power" as part of the system of checks and balances under
the Constitution. In our fundamental law, the role of the Court is to determine whether a branch of government has
adhered to the specific restrictions and limitations of the latter's power (Saguisag, et al. v. Executive Secretary, et al.,
supra).

How 1987 Constitution strengthened the power of judicial review.

The power of judicial review has since been strengthened in the 1987 Constitution. The scope of that power has
been extended to the determination of whether in matters traditionally considered to be within the sphere of appreciation
of another branch of government, an exercise of discretion has been attended with grave abuse (Gutierrez v. House of
Representatives Committee on Justice, supra note 94; Francisco v. House of Representatives, supra note 94; Tanada v.
Angara, 338 Phil. 546 [1997]; Oposa v. Factoran, G.R. No. 101083, 30 July 1993, 224 SCRA 792, 809-810 (citing Llamas v.
Orbos, 279 Phil. 920 [1991]; Bengzon v. Senate Blue Ribbon Committee, G.R. No. 89914, 20 November 1991, 203 SCRA
767; Gonzales v. Macaraig, G.R. No. 87636, 19 November 1990, 191 SCRA 452; Coseteng v. Mitra, G.R. No. 86649, 12 July
1990, 187 SCRA 377; Daza v. Singson, 259 Phil. 980 [1989]). The expansion of this power has made the political question
doctrine "no longer the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects
executive and legislative actions from judicial inquiry or review." (Oposa v. Factoran, supra; Saguisag v. Executive
Secretary, supra.)

How the moderating power exercised.

This moderating power, however, must be exercised carefully and only if it cannot be completely avoided. The
Constitution is so incisively designed that it identifies the spheres of expertise within which the different branches of
government shall function and the questions of policy that they shall resolve (Morfe v. Mutuc, 130 Phil. 415, 442 [1968]).
Since the power of judicial review involves the delicate exercise of examining the validity or constitutionality of an act of a
coequal branch of government, this Court must continually exercise restraint to avoid the risk of supplanting the wisdom
of the constitutionally appointed actor with that of its own. (See: Francisco v. House of Representatives, supra note 93;
United States v. Raines, 362 U.S. 17 (1960); and Angara v. Electoral Commission, supra; Saguisag, et al. v. Executive
Secretary, et al., G.R. No. 212426 and companion cases, January 12, 2016)

Senate investigation of a case already pending in court does not violate the sub-judice rule.
The sub-judice rule restricts comments and disclosures pertaining to judicial proceedings to avoid prejudging the
issue, influencing the court, or obstructing the administration of justice. Suffice it to state that the Senate Rules of
Procedure Governing Inquiries in Aid of Legislation provide that the filing or pendency of any prosecution or
administrative action should not stop or abate any inquiry to carry out a legislative purpose. (See Sabio v. Gordon, 504
SCRA 704, October 17, 2006)
A legislative investigation in aid of legislation and court proceedings has different purposes. On one hand, courts
conduct hearings or like adjudicative procedures to settle, through the application of a law, actual controversies arising
between adverse litigants and involving demandable rights. On the other hand, inquiries in aid of legislation are, inter alia,
undertaken as tools to enable the legislative body to gather information and, thus, legislate wisely and effectively; and to
determine whether there is a need to improve existing laws or enact new or remedial legislation, albeit the inquiry need
not result in any potential legislation. On-going judicial proceedings do not preclude congressional hearings in aid of
legislation.
When the Committee issued invitations and subpoenas to petitioners to appear before it in connection with its
investigation of the aforementioned investments, it did so pursuant to its authority to conduct inquiries in aid of
legislation. This is clearly provided in Art. VI, Sec. 21 of the Constitution. And the Court has no authority to prohibit a
Senate committee from requiring persons to appear and testify before it in connection with an inquiry in aid of legislation
in accordance with its duly published rules of procedure. (REGHIS M. ROMERO II, et al. v. SENATOR JINGGOY E. ESTRADA,
et al., G.R. No. 174105, April 2, 2009, Velasco, Jr., J.)

Judicial power may not be exercised in vacuum; meaning of principle.

Judicial power is never exercised in a vacuum. A court’s exercise of the jurisdiction it has acquired over a
particular case conforms to the limits and parameters of the rules of procedure duly promulgated by the Court. In other
words, procedure is the framework within which judicial power is exercised. In Manila Railroad Co. v. Attorney-General, 20
Phil. 523 [1911], the Court elucidated that “[t]he power or authority of the court over the subject matter existed and was
fixed before procedure in a given cause began. Procedure does not alter or change that power or authority; it simply
directs the manner in which it shall be fully and justly exercised. To be sure, in certain cases, if that power is not exercised
in conformity with the provisions of the procedural law, purely, the court attempting to exercise it loses the power to
exercise it legally. This does not mean that it loses jurisdiction of the subject matter.” (Conchita Carpio-Morales v. CA, et al.,
G.R. No. 217126-27, November 10, 2015, Perlas-Bernabe, J).

Concept of political question does not preclude judicial review.

29 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys
 The concept of a political question, however, never precludes judicial review when the act of a constitutional
organ infringes upon a fundamental individual or collective right.
When political questions are involved, the Constitution limits the determination to whether or not there has been
a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being
questioned. If grave abuse is not established, the Court will not substitute its judgment for that of the official concerned
and decide a matter which by its nature or by law is for the latter alone to decide. (Marcos v. Manglapus, 258 Phil. 479
[1989])
How the court has chosen to address the political question doctrine has undergone an evolution since the time
that it had been first invoked in Marcos v. Manglapus. Increasingly, the Court has taken the historical and social context of
the case and the relevance of pronouncements of carefully and narrowly tailored constitutional doctrines. This trend was
followed in cases such as Daza v. Singson, 259 Phil. 980 [1989] and Coseteng v. Mitra Jr., G.R. No. 86649, July 12, 1990, 1987
SCRA 377.

The rule-making power of the Supreme Court (Section 5[5], Article VIII, 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 procedure in all courts.
In said case, the Court ruled that:
“The separation of powers among the three co-equal branches of our government has erected an
impregnable wall that keeps the power to promulgate rules of pleading, practice and procedure within the
sole province of this Court. The other branches trespass upon this prerogative if they enact laws or issue
orders that effectively repeal, alter or modify any of the procedural rules promulgated by this Court.
Viewed from this perspective, the claim of a legislative grant of exemption from the payment of legal fees
under Section 39 of RA 8291 necessarily fails.
Congress could not have carved out an exemption for the GSIS from the payment of legal fees
without transgressing another equally important institutional safeguard of the Court’s independence –
fiscal autonomy, Fiscal autonomy recognizes the power and authority of the Court to levy, assess and
collect fees, including legal fees. Moreover, legal fees under Rule 141 have two basic components, the
Judiciary Development Fund (JDF) and the Special allowance for the Judiciary Fund (SAJF). The laws which
established the JDF and the SAJF expressly declare the identical purpose of these funds to “guarantee the
independence of the Judiciary as mandated by the Constitution and public policy.” legal fees therefore do
not only constitute a vital source of the Court’s financial resources but also comprise an essential element
of the Court’s fiscal independence. Any exemption from the payment of legal fees granted by Congress to
governments-owned or controlled corporations and local government units will necessarily reduce the
JDF and the SAJF. Undoubtedly, such situation is constitutionally infirm for it impairs the Court’s
guaranteed fiscal autonomy and erodes its independence. (GSIS v. Heirs of Fernando F. Caballero, G.R.
No. 158090, 623 SCRA 5, 14-15, Oct. 4, 2010, 2nd Div. [Peralta])

Accountability of Pubic Offices

Meaning of “initiate” in impeachment.

The term “initiate” means to file the complaint and take initial action on it. The initiation starts with the filing of
the complaint which must be accompanied with an action to set the complaint moving. It refers to the filing of the
impeachment complaint coupled with Congress’ taking initial action of said complaint. The initial action taken by the
House on the complaint is the referral of the complaint to the Committee on Justice. (Francisco v. House of
Representatives, et al., 460 Phil. 830 (2003). What ends the initiation is the referral to the Committee on Justice. Once an
impeachment complaint has been initiated, another impeachment complaint may not be filed against the same official
within a one year period. (Gutierrez v. The House of Representatives Committee on Justice, et al., G.R. No. 193459,
February 15, 2011).

Power of suspension by the Ombudsman.

Section 21 of the Ombudsman Act vests the Office of the Ombudsman with disciplinary authority over all elective
and appointive officials of the government, except officials who may be removed only by impeachment, Members of the
Congress, and the Judiciary. While CTD has the rank of a Justice of the Court of Appeals, he does not belong to the Judiciary
but to the Executive Department. This simply means that he has the same compensation and privileges as a Justice of the
Court of Appeals. If the Supreme Court were to investigate CTD, it would be performing a non-judicial function. This will
violate the principle of separation of powers. (Noblejas v. Teehankee, 23 SCRA 405 (1968).

Preventive suspension by Ombudsman.

When Ombudsman may impose preventive suspension upon a public officer.
If a public officer fails the lifestyle check conducted by the office because his assets were grossly disproportionate
to his salary and allowances and charged with graft and corrupt practices and pending the completion of investigations, he
was suspended from office for six months, the suspension is valid.
The suspension meted out to him is preventive and not punitive. Section 24 of Republic Act No. 6770 grants the
Ombudsman the power to impose preventive suspension up to six months. Preventive suspension may be imposed
without any notice or hearing. It is merely a preliminary step in an administrative investigation and is not the final
determination of the guilt of the officer concerned. (Garcia v. Mojica, 314 SCRA 207 (1999).

30 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys

Requisites for issuance of preventive suspension by the Ombudsman.
The requisites for issuing a preventive suspension order are explicitly stated in Section 24, RA 6770:
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) months, without pay, 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. (The Ombudsman v. Valeroso, 548 Phil. 688, 695 [2007]; Conchita Carpio-Morales v. CA, et al.,
G.R. No. 217126-27, November 10, 2015, Perlas-Bernabe, J).

The constitutional commissions observe the regular rotational plan which cannot apply to the Office of the
Ombudsman.
The regular rotation or cycle that is explicitly provided in Art. IX of the 1987 Constitution and inherently unique
to the constitutional commissions is an argument that works heavily against the position of the petitioner that the
limitations on the term of office of these commissions equally apply to the Ombudsman and his deputies.
In Nationalista Party v. De Vera, 85 Phil. 126 [1949]:
In order to carry out the purpose of the Constitution of placing in the Commission a new
member every three years, it is essential that after the first Commissioners have been appointed, every
subsequent appointment shall so fix the appointee’s term of office as to maintain the three years
difference between the dates of expiration of the respective terms of the incumbents. And this can be
done if after the appointments of the first three Commissioners, the successor of any one of them who
ceases prior to the expiration of his term, be appointed only for the unexpired portion of that term. Of
course, when a Commissioner ceases because of the expiration of his term his successor must be
appointed for a term of nine years; but when he ceases on other grounds prior to the expiration of his
term, his successor must be appointed only for the unexpired portion of that term, otherwise the
appointment would be offensive to the Constitution (Nationalista Party v. De Vera, 85 Phil. 126 [1949];
Ifurung v. Ombudsman Conchita Carpio-Morales, G.R. No. 232131, April 24, 2018).

Two (2) conditions of the rotational plan.

For the operation of the rotational plan, two conditions, both indispensable to its workability, are required, viz:
(1) that the terms of the first three commissioners should start on a common date; and (2) that any vacancy due to death,
resignation or disability before the expiration of the term should be filled only for the unexpired balance of the term.
Without satisfying these conditions, the regularity of the intervals between appointments would be destroyed, and the
evident purpose of the rotation, i.e., to prevent that a four-year administration should appoint more than one permanent
and regular commissioner, would be frustrated. It was settled therefore that of the first three COMELEC commissioners
appointed whose office shall all commence on a common date, one commissioner shall have a term of office of nine years,
the other for six years, and the remaining one for three years (Ifurung v. Ombudsman Conchita Carpio-Morales, G.R. No.
232131, April 24, 2018).

Fixed terms of office of Ombudsman.

Unlike the constitutional commissions in the 1973 and 1987 Constitutions, the Ombudsman and the deputies do
not make a collegial body thus, making it implausible to apply the regular rotation or cycle in its membership. The
Ombudsman and the deputies, in contrast to the constitutional commissions, do not decide by a majority vote of all its
members any case or matter brought before the Office of the Ombudsman. To stress, the Ombudsman and the deputies
have their respective jurisdiction; hence, they could not have common responsibility relative to the discharge of their
separate and distinct functions (Ifurung v. Ombudsman Conchita Carpio-Morales, G.R. No. 232131, April 24, 2018).
Unlike the constitutional commissions in Art. IX of the 1987 Constituton, the seven-year term of office of the first
appointees for Ombudsman and the deputies is not reckoned from 2 February 1987, but shall be reckoned from their date
of appointment. Accordingly, the present Ombudsman and deputies shall serve a full term of seven years from their date of
appointment unless their tem is cut short by death, resignation, removal, or permanent disability (Ifurung v. Ombudsman
Conchita Carpio-Morales, G.R. No. 232131, April 24, 2018, Martires, J).

Nature of the power of Ombudsman to impose administrative liability.

It is already well-settled that “the power of the Ombudsman to determine and impose administrative liability is
not merely recommendatory but actually mandatory.” (Office of the Ombudsman v. Delijero, Jr., G.R. No. 172635, October
20, 2010, 634 SCRA 135). In Atty. Ledesma v. Court of Appeals, 503 Phil. 396 (2005), the fact “that the refusal, without just
cause, of any officer to comply with the order of the Ombudsman to penalize an erring officer or employee is a ground for
disciplinary action under Section 15(3) of RA 6670, is a strong indication that the Ombudsman’s ‘recommendation’ is not
merely advisory in nature but is actually mandatory within the bounds of law.” (Fajardo v. Officer of the Ombudsman, et
al., G.R. No. 173268, August 23, 2012, Del Castillo, J). Under the “threefold liability rule,” any act or omission of any public
official or employee can result in criminal, civil, or administrative liability, each of which is independent of the other.
(Regidor, Jr. v. People, G.R. Nos. 166086-92, February 13, 2009, 579 SCRA 244; Fajardo v. Office of the Ombudsman, et al.,
G.R. No. 173268, August 23, 2012).

Impeachment proceeding versus quo warranto.

The causes of action in the two proceedings are unequivocally different. In quo warranto, the cause of action lies
on the usurping, intruding, or unlawfully holding or exercising of a public office, while in impeachment, it is the
commission of an impeachable offense. Stated in the different manner, the crux of the controversy in this quo warranto
proceedings is the determination of whether or not respondent legally holds the Chief Justice position to be considered as
an impeachable office in the first place. On the other hand, impeachment is for respondent’s prosecution for certain
31 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys
impeachable offenses. To be sure respondent is not being prosecuted herein for such impeachable offenses enumerated in
the Articles of Impeachment. Instead, the resolution of this case shall be based on established facts and related laws.
Simply put, while respondent’s title to hold a public office is the issue in quo warranto proceedings; impeachment
necessarily presupposes that respondent legally holds the public office and thus, is an impeachable officer, the only issue
being whether or not she committed impeachable offenses to warrant her removal from office.
Likewise, the reliefs sought in the two proceedings are different. Under the Rules on quo warranto, “when the
respondent is found guilty of usurping, intruding into, or unlawfully holding or exercising a public office, x x x, judgment shall
be rendered that such respondent be ousted and altogether excluded therefrom, x x x.” In short, respondent in a quo warranto
proceedings shall be adjudged to ceased from holding a public office, which he or she is ineligible to hold. On the other
hand, in impeachment, a conviction for the charges of impeachable offenses shall result to the removal of the respondent
from public office that he/she is legally holding. It is not legally possible to impeach or remove a person from an office that
he/she, in the first place, does not and cannot legally hold or occupy (Republic v. Sereno, G.R. No. 237428, May 11, 2018,
Tijam, J).

Impeachment is not an exclusive remedy by which an invalidly appointed or invalidly elected impeachable official
may be removed from office.
The PET Rules expressly provide for the remedy of either an election protest or a petition for quo warranto to
question the eligibility of the President and the Vice-President, both of whom are impeachable officers. Following
respondent’s theory that an impeachable officer can be removed only through impeachable means that a President or
Vice-President against whom an election protest has been filed can demand for the dismissal of the protest on the ground
that it can potentially cause his/her removal from office through a mode other than by impeachment. To sustain
respondent’s positionis to render election protests under the PET Rules nugatory. The Constitution could not have
intended such absurdity since fraud and irregularities in elections cannot be countenced, and the will of the people as
reflected in their votes must be determined and respected. The Court could not, therefore, have unwittingly curtailed its
own judicial power by prohibiting quo warranto proceedings against impeachable offices (Rep. v. Sereno, supra).

The Supreme Court’s exercise of its jurisdiction over a quo warranto petition is not violative of the doctrine of
separation of powers.
Section 3[1] and 3[6], Article XI of the Constitution respectively provides that the House of Representatives shall
have the exclusive power to initiate all cases of impeachment while the Senate shall have the sole power to try and decide
all cases of impeachment. Thus, there is no argument that the constitutionally-defined instrumentality which is given the
power to try impeachment cases is the Senate.
Nevertheless, the Court’s assumption of jurisdiction over an action for quo warranto involving a person who
would otherwise be an impeachable official had it not been for a disqualification, is not violative of the core constitutional
provision that impeachment cases shall be exclusively tried and decided by the Senate.
Again, an action for quo warranto tests the right of a person to occupy a public position. It is a direct proceeding
assailing the title to a public office. The issue to be resolved by the Court is whether or not the defendant is legally
occupying a public position which goes into the questions of whether defendant was legally appointed, was legally
qualified and has complete legal title to the office. If defendant is found to be not qualified and without any authority, the
relief that the Court grants is the ouster and exclusion of the defendant from office. In other words, while impeachment
concerns actions that make the officer unfit to continue exercising his or her office, quo warranto involves matters that
render him or her ineligible to hold the position to begin with (Rep. v. Sereno, G.R. No. 237428, May 11, 2018).

Effect of lack of qualification.

For lack of Constitutional qualification, respondent is ineligibile to hold the position of Chief Justice and is merely
holding a colorable right or title thereto. As such, respondent has never attained the status of an impeachable official and
her removal from the office, other than by impeachment, is justified. The remedy, therefore, of a quo warranto at the
instance of the State is the power to oust respondent from the appointive position of Chief Jusitce (Rep. v. Sereno, supra).

ARTICLE IX – Constitutional Commissions/Elections

Designation of CSC Chairman to the Board of GSIS, ECC, etc. violates the independence of the Commission.
The GSIS, PHILHEALTH, ECC and HDMF are vested by their respective charters with various powers and
functions to carry out the purposes for which they were created. While powers and functions associated with
appointments, compensation and benefits affect the career development, employment status, rights, privileges, and
welfare of government officials and employees, the GSIS, PHILHEALTH, ECC and HDMF are also tasked to perform other
corporate powers and functions that are not personnel-related. All of these powers and functions, whether personnel-
related or not, are carried out and exercised by the respective Boards of the GSIS, PHILHEALTH, ECC and HDMF. Hence,
when the CSC Chairman sits as a member of the governing Boards of the GSIS, PHILHEALTH, ECC and HDMF, he may
exercise these powers and functions, which are not anymore derived from his position as CSC Chairman, such as imposing
interest on unpaid or unremitted contributions, issuing guidelines for the accreditation of health care providers, or
approving restructuring proposals in the payment of unpaid loan amortizations. Duque’s designation as member of the
governing Boards of the GSIS, PHILHEALTH, ECC and HDMF entitles him to receive per diem, a form of additional
compensation that is disallowed by the concept of an ex officio position by virtue of its clear contravention of the
proscription set by Section 2, Article IX-A of the 1987 Constitution. This situation goes against the principle behind an ex
officio position, and must, therefore, be held unconstitutional.
Apart from violating the prohibition against holding multiple offices, Duque’s designation as member of the
governing Boards of the GSIS, PHILHEALTH, ECC and HDMF impairs the independence of the CSC. Under Section 17,
Article VII of the Constitution, the President exercises control over all government offices in the Executive Branch. An
office that is legally not under the control of the President is not part of the Executive Branch. (Dennis Funa v. The
Chairman, CSC, Francisco Duque III, et al., G.R. No. 191672, November 25, 2014, Bersamin, J).

Promotional appointment of COA Chairman; condition.

32 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys
 Villar’s appointment as Chairman of COA is not prohibited under the Constitution after his resignation as
Commissioner. The Constitutional provision provides: The Chairman and Commissioners [on Audit] shall be appointed by
the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of
those first appointed, the Chairman shall hold office for seven years, one commissioner for five years, and the other
commissioner for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired portion
of the term of the predecessor. The provision, on its face, does not prohibit a promotional appointment from commissioner
to chairman as long as the commissioner has not served the full term of seven years, further qualified by the third sentence
of Sec. 1(2), Article IX (D) that the appointment to any vacancy shall be only for the unexpired portion of the term of the
predecessor. In addition, such promotional appointment to the position of Chairman must conform to the rotational plan
or the staggering of terms in the commission membership such that the aggregate of the service of the Commissioner in
said position and the term to which he will be appointed to the position of Chairman must not exceed seven years so as not
to disrupt the rotational system in the commission prescribed by Sec. 1(2), Art. IX(D). There is nothing in Sec. 1(2), Article
IX(D) that explicitly precludes a promotional appointment from Commissioner to Chairman, provided it is made under the
aforestated circumstances or conditions. (Dennis A. Funa v. The Chairman, Commission on Audit, Reynaldo A. Villar, G.R.
No. 192791 April 24, 2012, Velasco, Jr., J.).

ARTICLE XII – General Provisions / National Patrimony

Large scale exploration of natural resources; to be signed by the President.

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 signed on behalf of the Philippine government was the Secretary of Energy, the same is not valid.
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. 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 (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)).

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.
(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.

Meaning and purpose of the Filipinization of public utilities.

The Filipinization provision in the 1987 Constitution is one of the products of the spirit of nationalism which
gripped the 1935 Constitutional Convention.(Luzon Stevedoring Corp. v. Anti-Dummy Board, 46 SCRA 474 (1972). The
1987 Constitution “provides for the Filipinization of public utilities by requiring that any form of authorization for the
operation of public utilities should be granted only to ‘citizens of the Philippines or to corporations or associations
organized under the laws of the Philippines at least sixty per centum of whose capital is owned by such citizens.’ The
provision is an express recognition of the sensitive and vital position of public utilities both in the national economy and
for national security.” The evident purpose of the citizenship requirement is to prevent aliens from assuming control of
public utilities, which may be inimical to the national interest. This specific provision explicitly reserves to Filipino citizens
control of public utilities, pursuant to an overriding economic goal of the 1987 Constitution: to “conserve and develop our
patrimony” and ensure “a self-reliant and independent national economy effectively controlled by Filipinos.”
Any citizen or juridical entity desiring to operate a public utility must therefore meet the minimum nationality
requirement prescribed in Section 11, Article XII of the Constitution. Hence, for a corporation to be granted authority to
operate a public utility, at least 60 percent of its “capital” must be owned by Filipino citizens. (Gamboa v. Teves, et al., G.R.
No. 176579, June 28, 2011).

Meaning of the term “capital” of a public utility company in the Constitution.

The term "capital" in Section 11, Article XII of the Constitution refers only to shares of stock entitled to vote in the
election of directors, and thus in the present case only to common shares, and not to the total outstanding capital stock
comprising both common and nonvoting preferred shares.
Considering that common shares have voting rights which translate to control, as opposed to preferred shares
which usually have no voting rights, the term "capital" in Section 11, Article XII of the Constitution refers only to common
33 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys
shares. However, if the preferred shares also have the right to vote in the election of directors, then the term "capital" shall
include such preferred shares because the right to participate in the control or management of the corporation is exercised
through the right to vote in the election of directors. In short, the term "capital" in Section 11, Article XII of the
Constitution refers only to shares of stock that can vote in the election of directors (Heirs of Wilson P. Gamboa v. Finance
Sec. Teves; Jose Roy III v. Chairperson Teresita Herbosa, et al., G.R. No. 207246, November 22, 2016, Caguioa, J).

Reason for the foregoing definition of “capital.”

The Court adopted the foregoing definition of the term "capital" in Section 11, Article XII of the 1987 Constitution
in furtherance of "the intent and letter of the Constitution that the 'State shall develop a self-reliant and independent
national economy effectively controlled by Filipinos' [because a] broad definition unjustifiably disregards who owns the all-
important voting stock, which necessarily equates to control of the public utility." The provision is an express recognition
of the sensitive and vital position of public utilities both in the national economy and for national security. The evident
purpose of the citizenship requirement is to prevent aliens from assuming control of public utilities, which may be inimical
to the national interest. The foregoing interpretation is consistent with the intent of the framers of the Constitution to
place in the hands of Filipino citizens the control and management of public utilities; and, as revealed in the deliberations
of the Constitutional Commission, "capital" refers to the voting stock or controlling interest of a corporation (Gamboa v.
Teves, 668 Phil. 1 [2011]; Jose Roy III v. Chairperson Teresita Herbosa, et al., G.R. Nos. 207246, November 22, 2016,
Caguioa, J).

The term ―franchise includes not only authorizations issuing directly from Congress in the form of statute, but also
those granted by administrative agencies to which the power to grant franchise has been delegated by Congress.
The TRB was granted sufficient power to grant a qualified person or entity with authority to operate the toll
facility/system. By explicit provisions of the PDs, the TRB was given power to grant administrative franchise for toll
facility projects. The limiting thrust of Article 12, Section 11 of the Constitution on the grant of franchise or other forms of
authorization to operate public utilities may, in context, be stated as follows: (a) the grant shall be made only in favor of
qualified Filipino citizens or corporations; (b) Congress can impair the obligation of franchises, as contracts; and (c) no
such authorization shall be exclusive or exceed fifty years. Under the 1987 Constitution, Congress has an explicit authority
to grant a public utility franchise. However, it may validly delegate its legislative authority, under the power of
subordinate legislation, to issue franchises of certain public utilities to some administrative agencies. (Ernesto Francisco,
Jr. v. Toll Regulatory Board, GR Number 166910, October 19, 2010, VELASCO, JR., J.).

Aliens cannot acquire land in the Philippines.

A foreigner who married a Filipino is not entitled to a share of a parcel of land they acquired during marriage
even if the money used to purchase it came from him. Under the Constitution, save in cases of hereditary succession no
private lands shall be transferred or conveyed except to individuals, corporations or associations qualified to acquire or
hold lands of the public domain. He was well aware of the constitutional prohibition and openly admitted the same. His
actuations showed his palpable intent to skirt the constitutional prohibition, hence, he cannot be entitled to a share of the
real properties. Contracts that violate the Constitution and the law are null and void, vest not rights, create no obligations
and produce no legal effect at all. The denial of his claim does not amount to injustice. It is the Constitution itself that
demarcates the rights of citizens and non-citizens in owning Philippine land. The purpose of the prohibition is to conserve
and develop the national patrimony. (Beumer vs. Amores, G.R. No. 195670, December 3, 2012).

Requisites before one may acquire property of public dominion.

In Heirs of Malabanan v. Republic, 605 Phil. 244 [2009], Bersamin, J, it was said that possession and occupation of
an alienable and disposable public land for the periods provided under the Civil Code will not convert it to patrimonial or
private property. There must be an express declaration that the property is no longer intended
for public service or the development of national wealth. In the absence thereof, the property remains to be alienable and
disposable and may not be acquired by prescription under Section 14(2) of P.D. No. 1529.
There must be an official declaration by the State that the public dominion property is no longer intended for
public use, public service, or for the development of national wealth before it can be acquired by prescription; that a mere
declaration by government officials that a land of the public domain is already alienable and disposable would not suffice
for purposes of registration under Section 14(2) of P.D. No. 1529. The period of acquisitive prescription would only begin
to run from the time that the State officially declares that the public dominion property is no longer intended for public
use, public service, or for the development of national wealth (Rep. v. Cortez, G.R. No. 186639, February 5, 2015, 715 SCRA
417; Rep. v. Rizalvo, Jr.,659 Phil. 578 [2011]; Rep. v. Heirs of Estacio, G.R. No. 208350, November 14, 2016, Peralta, J) .

Alien cannot own land in the Phils.; purpose is conservation of national patrimony.
Section 7, Article XII of the 1987 Constitution states that:
Save in cases of hereditary succession, no private lands shall be transferred or conveyed except
to individuals, corporations, or associations qualified to acquire or hold lands of the public domain.

Pursuant to this constitutional mandate, it has been held that "[a]liens, whether individuals or corporations, are
disqualified from acquiring lands of the public domain. Hence, they are also disqualified from acquiring private lands.
The primary purpose of the constitutional provision is the conservation of the national patrimony" (Muller v.
Muller, 531 Phil. 460, 466 [2006]).
Taina herself admitted that it was really Mike who paid with his own funds the subject lot; hence, Mike was its
real purchaser or buyer. More than that if the deed of sale at all proclaimed that she (Taina) was the purchaser or buyer of
the subject property and this subject property was placed under her name, it was simply because she and Mike wanted to
skirt or circumvent the constitutional prohibition barring or outlawing foreigners or aliens from acquiring or purchasing
lands in the Philippines. Indeed, the lower courts exposed and laid bare her posturing and pretense for what these really
are: that in the transaction in question, she was a mere dummy, a spurious stand-in, for her erstwhile common-law
husband, who was not a Filipino then, and never attempted to become a natural Filipino citizen thereafter. They cannot do
directly what is prohibited by law (Taina Manigque-Stone v. Cattleya Land, Inc., et al., G.R. No. 195975, September 5, 2016,
Del Castillo, J; Ang v. The Estate of Sy So, G.R. No. 182252, August 3, 2016).
34 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys
Academic Freedom
Even if the education department had not issued such prohibition, private schools still have the authority to
promulgate and enforce a similar prohibition pursuant to their right to establish disciplinary rules and regulations. This
right has been recognized in the Manual of Regulations for Private Schools, which has the character of law. Section 78 of
the 1992 Manual of Regulations of Regulations for Private Schools.(Espiritu Santo Parochial School v. NLRC, 258 Phil. 600
(1989)).
The right to establish disciplinary rules is consistent with the mandate in the Constitution (Art. XIV, Sec. 3(2),
Constitution) for schools to teach discipline; (Jenosa v. Dalariate, G.R. No. 172138, September 8, 2010) in fact, schools have
the duty to develop discipline in students. (Marian College, Inc. v. CA, 401 Phil. 431 (2000) Corollarily, the Court has always
recognized the right of schools to impose disciplinary sanctions on students who violate disciplinary rules. The penalty for
violations includes dismissal or exclusion from re-enrollment.

LOCAL GOVERNMENTS

Condonation doctrine without basis in the Constitution and law.

Reading the 1987 Constitution together with the other legal provisions now leads 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 (Conchita Carpio-Morales v. CA, et al., G.R. No. 217126-27, November
10, 2015, Perlas-Bernabe, J).

3-term limit, its rationale; coverage.

Coverage of the 3-term limit and the reason for the same.
As stressed in Socrates v. COMELEC(G.R. No. 154512, 2002), the principle behind the three-term limit rule covers
only consecutive terms and that what the Constitution prohibits is a consecutive fourth term. An elective local official
cannot, following his third consecutive term, seek immediate reelection for a fourth term, albeit he is allowed to seek a
fresh term for the same position after the election where he could have sought his fourth term but prevented to do so by
reason of the prohibition. There has, in fine, to be a break or interruption in the successive terms of the official after his or
her third term. An interruption usually occurs when the official does not seek a fourth term, immediately following the
third. (MAYOR ABELARDO ABUNDO, SR. v. COMMISSION ON ELECTIONS and ERNESTO R. VEGA, G.R. No. 20171, January 8,
2013, VELASCO, JR., J.).

Effect of voluntary renunciation of the office of an elected official on the 3-term limit.
As is clearly provided in Sec. 8, Art. X of the Constitution as well as in Sec. 43(b) of the LGC, voluntary
renunciation of the office by the incumbent elective local official for any length of time shall not, in determining service for
three consecutive terms, be considered an interruption in the continuity of service for the full term for which the elective
official concerned was elected. This qualification was made as a deterrent against an elective local official intending to
skirt the three-term limit rule by merely resigning before his or her third term ends. This is a voluntary interruption as
distinguished from involuntary interruption which may be brought about by certain events or causes. (MAYOR ABELARDO
ABUNDO, SR. v. COMMISSION ON ELECTIONS and ERNESTO R. VEGA, G.R. No. 20171, January 8, 2013, VELASCO, JR., J.).

Involuntarily interrupted terms, not considered a full term.

The almost two-year period during which Abundo’s opponent actually served as Mayor is and ought to be
considered an involuntary interruption of Abundo’s continuity of service. An involuntary interrupted term, cannot, in the
context of the disqualification rule, be considered as one term for purposes of counting the three-term threshold. It cannot
be overemphasized that pending the favorable resolution of his election protest, Abundo was relegated to being an
ordinary constituent since his opponent, as presumptive victor in the 2004 elections, was occupying the mayoralty seat. In
other words, during which his opponent actually assumed the mayoralty office, Abundo was a private citizen warming his
heels while awaiting the outcome of his protest. Hence, even if declared later as having the right to serve the elective
position such declaration would not erase the fact that prior to the finality of the election protest, Abundo did not serve in
the mayor’s office and, in fact, had no legal right to said position. (MAYOR ABELARDO ABUNDO, SR. v. COMMISSION ON
ELECTIONS and ERNESTO R. VEGA, G.R. No. 20171, January 8, 2013, VELASCO, JR., J.)

Objective of the 3-term limit.

The objective of imposing the three-term limit rule was “to avoid the evil of a single person accumulating
excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office.” The Court
underscored this objective in Aldovino, Jr. v. Commission on Elections, stating:
The framers of the Constitution specifically included an exception to the people’s freedom to
choose those who will govern them in order to avoid the evil of a single person accumulating excessive
power over a particular territorial jurisdiction as a result of a prolonged stay in the same office. To allow
petitioner Latasa to vie for the position of city mayor after having served for three consecutive terms as a
municipal mayor would obviously defeat the very intent of the framers when they wrote this exception.
Should he be allowed another three consecutive terms as mayor of the City of Digos, petitioner would
then be possibly holding office as chief executive over the same territorial jurisdiction and inhabitants
for a total of eighteen consecutive years. This is the very scenario sought to be avoided by the

35 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys

 Constitution, if not abhorred by it (Talaga v. Comelec, G.R. No. 196804; 197015, October 9, 2012,
Bersamin, J).

3-term limit; effect of disqualification.

It is true that he occupied the position of mayor in the following periods: 1995-1998; 1998-2001; 2001-2004;
2004-2007 but because of his disqualification he was not duly elected mayor for the 2004-2007 term. Neither did Morales
hold the position of mayor of Mabalacat for the full term. Morales cannot be deemed to have served the full term of 2004-
2007 because he was ordered to vacate his post before the expiration of the term. Morales’ occupancy of the position of
mayor of Mabalacat from 1 July 2004 to 16 May 2007 cannot be counted as a term for purposes of computing the three-
term limit. Indeed, the period from 17 May 2007 to 30 June 2007 served as a gap for purposes of the three-term limit rule.
Thus, the present 1 July 2007 to 30 June 2010 term is effectively Morales’ first term for purposes of the three-term limit
rule. (Dizon v. COMELEC, et al., G.R. No. 182088, January 30, 2009).

Exceptional situation in the 3-term limit.

Preventively suspended elective public officer may not run for a fourth term.
To allow a preventively suspended elective official to run for a fourth and prohibited term is to close our eyes to
this reality and to allow a constitutional violation through sophistry by equating the temporary inability to discharge the
functions of office with the interruption of term that the constitutional provision contemplates. To be sure, many reasons
exist, voluntary or involuntary – some of them personal and some of them by operation of law – that may temporarily
prevent an elective office holder from exercising the functions of his office in the way that preventive suspension does. A
serious extended illness, inability through force majeure, or the enforcement of a suspension as a penalty, to cite some
involuntary examples, may prevent an office holder from exercising the functions of his office for a time without forfeiting
title to office. Preventive suspension is no different because it disrupts actual delivery of service for a time within a
term. Adopting such interruption of actual service as the standard to determine effective interruption of term under the
three-term rule raises at least the possibility of confusion in implementing this rule, given the many modes and occasions
when actual service may be interrupted in the course of serving a term of office. The standard may reduce the
enforcement of the three-term limit rule to a case-to-case and possibly see-sawing determination of what an effective
interruption is. (Simon Aldovino, Jr., et al. v. COMELEC, et al., G.R. No. 184836, December 23, 2009, Brion, J).

Plebiscite; the phrase “by the qualified voters therein” includes all voters in the LGU affected; issue, a novel one of
first impression.
The COMELEC’s ruling that only the voters of Cabanatuan City shall participate in the plebiscite to convert
Cabanatuan City into a highly urbanized city is not correct.
The phrase "by the qualified voters therein" in Sec. 453 means the qualified voters not only in the city proposed
to be converted to an HUC but also the voters of the political units directly affected by such conversion in order to
harmonize Sec. 453 with Sec. 10, Art. X of the Constitution. This means that the entire province of Nueva Ecija shall
participate in the plebiscite (Umali v. COMELEC, et al., G.R. No. 203974, & companion cases, April 22, 2014).
LGUs have the power to classify and reclassify their properties; police power measure.
Ordinance No. 8187, otherwise known as “An Ordinance Amending Ord. No. 8119, Otherwise Known as “The
Manila Comprehensive Land Use and Zoning Ordinance of 2006 By Creating a Medium Industrial Zone (1-2) and Heavy
Industrial Zone (1-3). The creation of the industrial zones lifted the prohibition against owners and operators of
businesses including Chevron and the other oil companies from operating in designated commercial zones, an industrial
zone prior to the enactment of Ordinance No. 8027 is valid. The petition is a sequel to the case of SJS v. Mayor Atienza, J.
where the SC found that said ordinance (No. 8027) was enacted to safeguard the rights to life, security and safety of the
inhabitants of Manila, hence it ordered the operators of the Pandacan depots to immediately relocate and transfer their oil
terminals. But despite the finality of said judgment, the City of Manila enacted an ordinance, (Ordinance No. 8171)
repealing Ordinance No. 8027 on the theory that a local government unit can classify and reclassify its own properties.
Pursuant to the Local Government Code, the LGU is in the best position to determine the needs of its constituents that the
removal of the oil depots in the Pandacan area is necessary to protect the residents of Manila from catastrophic
devastation in case of a terrorist attack on the Pandacan Terminals. The oil companies’ contention that the Pandacan
terminals have never been the subject of terrorist attacks, hence, the petitions are based on unfounded fears and mere
conjectures is not correct. (SJS, et al. v. Lim, G.R. No. 187836 & companion cases, November 25, 2014, Perez, J).

Creation of a province is population not an indispensable requirement.

A province may be created if it has an average annual income, as certified by the Department of Finance, of not
less than Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of the following requisites:
(i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by
the Lands Management Bureau; or
(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified
by the National Statistics Office.

The requirement of population is not an indispensable requirement, but is merely an alternative addition to the
indispensable income requirement. (Aquino v. COMELEC, G.R. No. 189793, April 2, 2010).

When second placer can assume.

The only time that a second placer is allowed to take the place of a disqualified winning candidate is when two
requisites concur, namely: (a) the candidate who obtained the highest number of votes is disqualified; and (b) the
electorate was fully aware in fact and in law of that candidate’s disqualification as to bring such awareness within the
realm of notoriety but the electorate still cast the plurality of the votes in favor of the ineligible candidate (Grego v.
Commission on Elections, G.R. No. 125955, June 19, 1997, 274 SCRA 481, 501). Under this sole exception, the electorate
may be said to have waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing
away their votes, in which case the eligible candidate with the second highest number of votes may be deemed elected
(Labo, Jr. v. Commission on Elections, supra note 51, at p. 312). But the exception did not apply in favor of Castillo simply
because the second element was absent. The electorate of Lucena City were not the least aware of the fact of Barbara
36 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys
Ruby’s illegibility as the substitute. In fact, the COMELEC En Banc issued the Resolution finding her substitution invalid
only on May 20, 2011, or a full year after the elections (Talaga v. Comelec, G.R. No. 196804; 197015, October 9, 2012,
Bersamin, J).

Criterion in creating a local government unit.

When the local government unit to be created consists of one (1) or more islands, it is exempt from the land area
requirement as expressly provided in Section 442 and Section 450 of the LGC if the local government unit to be
created is a municipality or a component city, respectively. This exemption is absent in the enumeration of the
requisites for the creation of a province under Section 461 of the LGC, although it is expressly stated under Article
9(2) of the LGC-IRR.
There appears neither rhyme nor reason why this exemption should apply to cities and municipalities, but not to
provinces. In fact, considering the physical configuration of the Philippine archipelago, there is a greater likelihood that
islands or group of islands would form part of the land area of a newly-created province than in most cities or
municipalities. It is, therefore, logical to infer that the genuine legislative policy decision was expressed in Section 442 (for
municipalities) and Section 450 (for component cities) of the LGC, but was inadvertently omitted in Section 461 (for
provinces). Thus, when the exemption was expressly provided in Article 9(2) of the LGC-IRR, the inclusion was intended
to correct the congressional oversight in Section 461 of the LGC – and to reflect the true legislative intent. It would, then,
be in order for the Court to uphold the validity of Article 9(2) of the LGC-IRR. (Navarro, et al. V. Executive Secretary Ermita,
G.R. No. 180050, April 12, 2011).

Prohibition against midnight appointments; applies only to Presidential appointees; not to LGUs.
A midnight appointment “refers to those appointments made within two months immediately prior to the next
presidential election.” Midnight appointments are prohibited under Article VII, Section 15 of the Constitution:
Section 15. Two months immediately before the next presidential elections and up to the end of
his term, a President or Acting President shall not make the appointments, except temporary
appointments to executive positions when continued vacancies therein will prejudice public service or
endanger public safety.

Midnight appointments are prohibited because an outgoing President is “duty-bound to prepare for the orderly
transfer of authority to the incoming President, and he or she should not do acts which he or she ought to know, would
embarrass or obstruct the policies of his or her successor.” (Aytona v. Castillo, No. L-193313, January 19, 1962, 4 SCRA 1,
9-10). An outgoing President should not “deprive the new administration of an opportunity to make the corresponding
appointments.
However, the constitutional prohibition on midnight appointments only applies to presidential appointments. It
does not apply to appointments made by local chief executives. There is no law that prohibits local elective officials from
making appointments during the last days of his or her tenure. (The Provincial Government of Aurora v. Marco, G.R. No.
202331, April 22, 2015, 757 SCRA 222, Leonen, J, citing De Rama v. CA, 405 Phil. 531, 353 SCRA 94).

Enactment of the laws, an exercise of legislative power.

Without doubt, the LGC is a creation of Congress through its law-making powers. Congress has the power to alter
or modify it as it did when it enacted R.A. No. 9009. Such power of amendment of laws was again exercised when Congress
enacted the Cityhood Laws. When Congress enacted the LGC in 1991, it provided for quantifiable indicators of economic
viability for the creation of local government units—income, population, and land area. Congress deemed it fit to modify
the income requirement with respect to the conversion of municipalities into component cities when it enacted R.A. No.
9009, imposing an amount of P100 million, computed only from locally-generated sources. However, Congress deemed it
wiser to exempt respondent municipalities from such a belatedly imposed modified income requirement in order to
uphold its higher calling of putting flesh and blood to the very intent and thrust of the LGC, which is countryside
development and autonomy, especially accounting for these municipalities as engines for economic growth in their
respective provinces.
Undeniably, R.A. No. 9009 amended the LGC. But it is also true that, in effect, the Cityhood Laws amended R.A. No.
9009 through the exemption clauses found therein. Since the Cityhood Laws explicitly exempted the concerned
municipalities from the amendatory R.A. No. 9009, such Cityhood Laws are, therefore, also amendments to the LGC itself.
For this reason, we reverse the November 18, 2008 Decision and the August 24, 2010 Resolution on their strained and
stringent view that the Cityhood Laws, particularly their exemption clauses, are not found in the LGC (League of Cities of
the Phils., etc. v. Comelec, G.R. No. 176951, & companion cases, February 15, 2011, 643 SCRA 149).

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])

Body with jurisdiction over boundary disputes between barangays.

The RTC has no jurisdiction to settle a boundary dispute involving barangays in the same city or municipality.
Said dispute shall be referred for settlement to the sangguniang panglungsod or sangguniang bayan concerned. If there is
failure of amicable settlement, the dispute shall be formally tried by the sanggunian concerned and shall decide the same
within sixty (60) days from the date of the certification referred to. Further, the decision of the sanggunian may be
appealed to the RTC having jurisdiction over the area in dispute, within the time and manner prescribed by the Rules of
Court (Barangay Mayamot, Antipolo City v. Antipolo City, SB, et al., G.R. No. 187349, August 17, 2016).

37 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys

Vice-Governor counted in computing the quorum and not counted in the determination of the required votes to
uphold a matter in the SP; role is merely to break a tie.
In La Carlota City, Negros Occidental, et al. v. Atty. Rojo, G.R. No. 181367, April 24, 2012, the Court interpreted a
provision pertaining to the composition of the Sangguniang Panlungsod, viz.:
Section 457. Composition (a) The sangguniang panlungsod, the legislative body of the city, shall
be composed of the city vice-mayor as presiding officer, the regular sanggunian members, the president
of the city chapter of the liga ng mga barangay, the president of the panlungsod na pederasyon ng mga
sangguniang kabataan, and the sectoral representatives, as members.
R.A. 7160 clearly states the composition of that the Sangguniang Panlungsod. Black's Law
Dictionary defines "composed of”' as "formed of' or "consisting of." As the presiding officer, the vice-
mayor can vote only to break a tie. In effect, the presiding officer votes when it matters the most, that is,
to break a deadlock in the votes. Clearly, the vice-mayor, as presiding officer, is a "member" of the
Sangguniang Panlungsod considering that he is mandated under Section 49 of RA 7160 to vote to break a
tie. To construe otherwise would create an anomalous and absurd situation where the presiding officer
who votes to break a tie during a Sanggunian session is not considered a "member" of the Sanggunian.

It can, thus, be concluded that the Vice Governor forms part of the composition of the SP as its Presiding Officer,
and should be counted in the determination of the existence of a quorum. However, the nature of the position of the
Presiding Officer as a component of the SP is distinct from the other members comprising the said body (J. Tobias M.
Javier, et al. v. Rhodora Cadiao, et al., G.R. No. 185369, August 3, 2016).

Reason behind the right given to a political party to nominate a replacement where a permanent vacancy occurs in
the Sanggunian.
Under Section 45[b] only the nominee of the political party under which the Sanggunian member concerned has
been elected and whose elevation to the position next higher in rank created the last vacancy in the Sanggunian shall be
appointed in the manner hereinabove provided. The appointee shall come from the same political party as that of the
Sanggunian member who caused the vacancy x x x.”
The reason behind the right given to a political party to nominate a replacement where a permanent vacancy
occurs in the Sanggunian is to maintain the party representation as willed by the people in the election.
With the elevation of petitioner Tamayo, who belonged to REFORMA-LM, to the position of Vice-Mayor, a vacancy
occurred in the Sanggunian that should be filled up with someone who should belong to the political party of petitioner
Tamayo. Otherwise, REFORMA-LM’s representation in the Sanggunian would be diminished. To argue that the vacancy
created was that formerly held by Rolando Lalas, a LAKAS-NUCD-Kampi member, would result in the increase of that
party’s representation in the Sanggunian at the expense of the REFORMA-LM. This interpretation is contrary to the letter
and spirit of the law and thus violative of a fundamental rule in statutory construction which is to ascertain and give effect
to the intent and purpose of the law. As earlier pointed out, the reason behind par. [b], Section 44 of the Local Government
Code is the maintenance of party representation in the Sanggunian in accordance with the will of the electorate.
The “last vacancy” in the Sanggunian refers to that created by the elevation of the member of formerly occupying
the next higher in rank which in turn also had become vacant by any of the causes already enumerated. The term “last
vacancy” is thus used in Sec. 45[b] to differentiate it from the other vacancy previously created. The term by no means
refers to the vacancy in the No. 8 position which occurred with the elevation of Rolando Lalas to the seventh position in
the Sanggunian. Such construction will result in absurdity (Navarro v. Court of Appeals, 335 SCRA 672, Mar. 28, 2001, 1st
Div. [Kapunan]).

Police Power

Cost-recovery mechanics imposed by ERC does not violate the non-impairment clause; exercise of police power.
The regulation of rates imposed to public utilities such as electricity distributors is an exercise of the State’s
police power, like the order to refund over-recoveries charged to their customers.
When private property is used for a public purpose and is affected by public interest, it ceases to be juris privati
only and becomes subject to regulation. As the state agency charged with the regulation of electric cooperatives, ERC is
mandated to protect public interest by directing NEECO to refund over-charges it made to its consumers. Moreover, the
computation made by the ERC to determine the cap was a mechanism purely for cost-recovery and should not be income-
generating.
Nor can the cost-recovery mechanism imposed be deemed an impairment of the contracts entered into by
NEECO prior to the enactment of RA 7832 since all private contracts must yield to the superior and legitimate measures
taken by the State to promote public welfare (Nueva Ecija Electric Coop., Inc (NEECOI) v. ERC, G.R. No. 180642, February
3, 2016).

Ordinance prevails over restrictions on use of property.

An ordinance re-classifying the area as institutional, hence, the owner expanded the school shall prevail over the
restriction in the title.
The ordinance is an exercise of police power. As early as Ortigas & Co. Ltd. Partnership v. Feati Bank & Trust Co.,
183 Phil. 176 (1979), the SC upheld the validity of an ordinance declaring the residential area in Mandaluyong as
industrial and commercial zone as it was passed in the exercise of police power. Since the motives behind the passage of
the questioned resolution is reasonable, and it being a legitimate response to a felt public need, not whimsical or
oppressive, the non-impairment of contracts clause of the Constitution will not bar the municipality’s exercise of police
power. (Learning Child, Inc., et al. v. Ayala Alabang Village Asso., et al., G.R. No. 134269, and other companion cases, July 7,
2010).

20% senior citizen discount considered as an exercise of police power.

The 20% discount is intended to improve the welfare of senior citizens who, at their age, are less likely to be
gainfully employed, more prone to illnesses and other disabilities, and, thus, in need of subsidy in purchasing basic
commodities. The discount serves to honor senior citizens who presumably spent the productive years of their lives on
38 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys
contributing to the development and progress of the nation. This distinct cultural Filipino practice of honoring the elderly
is an integral part of this law. (Manila Memorial Park, Inc., et al. v. Sec. of the DSWD, et al., G.R. No. 175356, December 3,
2013).

R.A. Nos. 9257 & 94427 do not violate the equal protection clause
"The equal protection clause is not infringed by legislation which applies only to those persons falling within a
specified class. If the groupings are characterized by substantial distinctions that make real differences, one class may be
treated and regulated differently from another." For a classification to be valid, (1) it must be based upon substantial
distinctions, (2) it must be germane to the purposes of the law, (3) it must not be limited to existing conditions only, and
(4) it must apply equally to all members of the same class.
To recognize all senior citizens as a group, without distinction as to income, is a valid classification. The
Constitution itself considered the elderly as a class of their own and deemed it a priority to address their needs. When the
Constitution declared its intention to prioritize the predicament of the underprivileged sick, elderly, disabled, women, and
children, it did not make any reservation as to income, race, religion or any. other personal circumstances. It was a blanket
privilege afforded the group of citizens in the enumeration in view of the vulnerability of their class.
R.A. No. 9257 is an implementation of the avowed policy of the Constitution to enact measures that protect and
enhance the right of all the people to human dignity, reduce social, economic, and political inequalities. Specifically, it
caters to the welfare of all senior citizens. The classification is based on age and therefore qualifies all who have attained
the age of 60. Senior citizens are a class of their own, who are in need and should be entitled to government support, and
the fact that they may still be earning for their own sustenance should not disqualify them from the privilege.

Reason why senior citizens are granted the benefits.

It is well to consider that our senior citizens have already reached the age when work opportunities have
dwindled concurrently as their physical health. They are no longer expected to work, but there are still those who continue
to work and contribute what they can to the country. Thus, to single them out and take them out of the privileges of the
law for continuing to strive and earn income to fend for themselves is inimical to a welfare state that the Constitution
envisions. It is tantamount to penalizing them for their persistence. It is commending indolence rather than rewarding
diligence. It encourages them to become wards of the State rather than productive partners.
Our senior citizens were the laborers, professionals and overseas contract workers of the past. While some may
be well to do or may have the capacity to support their sustenance, the discretion to avail of the privileges of the law is up
to them. But to instantly tag them as undeserving of the privilege would be the height of ingratitude; it is an outright
discrimination (Carlos Superdrug Corp., et al. v. DSWD, et al., 553 Phil. 120 [2007]).

Discount to PWDs is an exercise of police power.

RA 7277 entitled "An Act Providing for the Rehabilitation, Self-Development and Self-Reliance of Disabled
Persons and their Integration into the Mainstream of Society and for Other Purposes," otherwise known as the "Magna
Carta for Disabled Persons," is constitutional.
The law is valid as an exercise of police power. The case is similar to Carlos Superdrug Corp., et al. v. DSWD, et al.,
553 Phil. 120 [2007] upholding the constitutionality of Sec. 4 of RA 9527 which grants 20% discount on the purchase of
medicines of senior citizens as a legitimate exercise of police power.
The law is a legitimate exercise of police power which, similar to the power of eminent domain, has general
welfare for its object. Police power is not capable of an exact definition, but has been purposely veiled
in general terms to underscore its comprehensiveness to meet all exigencies and provide enough room for an efficient and
flexible response to conditions and circumstances, thus assuring the greatest benefits (Sangalang v. intermediate Appellate
Court, 257 Phil. 930 [1989]). Accordingly, it has been described as the most essential, insistent and the least limitable of
powers, extending as it does to all the great public needs (Ermita-Malate Hotel and Motel Operators Association, Inc. v. City
Mayor of Manila, L-24693, July 31, 1967, 20 SCRA 849, citing Noble State Bank v. Haskell, 219 U.S. 412 (1911)). It is the
power vested in the legislature by the constitution to make, ordain, and establish all manner of wholesome and reasonable
laws, statutes, and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be
for the good and welfare of the commonwealth, and of the subjects of the same (U.S. v. Toribio, 15 Phil. 85 (1910), citing
Commonwealth v. Alger, 7 Cush., 53 (Mass. 1851); U.S. v. Pompeya, 3 I Phi I. 245, 253-254 ( 1915); Drugstores Assn of the
Phils. Inc., et al. v. National Council on Disability Affairs, et al., G.R. No. 194561, September 14, 2016, Peralta, J).

Eminent Domain

Nature of power of eminent domain.

The exercise of the right of eminent domain, whether directly by the State or by its authorized agents, is
necessarily in derogation of private rights. It is one of the harshest proceedings known to the law. Consequently, when the
sovereign delegates the power to a political unit or agency, a strict construction will be given against the agency asserting
the power. The authority to condemn is to be strictly construed in favor of the owner and against the condemnor. When
the power is granted, the extent to which it may be exercised is limited to the express terms or clear implication of the
statute in which the grant is contained.
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
39 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys
 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 ruled 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 did not deprive all agricultural landowners in that City of the
beneficial use of their property amounting to taking without just compensation, hence did not amount to taking. 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.

Agency that determines just compensation.

The RTC, sitting as a Special Agrarian Court, has been conferred with the original and exclusive power to
determine just compensation for parcels of land acquired by the State pursuant to the agrarian reform program. To guide
the RTC in this function, Section 17 of RA 6657 enumerates the factors which must be taken into consideration to
accurately determine the amount of just compensation to be awarded in a particular case. They are: (a) the acquisition
cost of the land; (b) the current value of like properties; (c) the nature and actual use of the property, and the income
therefrom; (d) the owner’s sworn valuation; (e) the tax declarations; (f) the assessment made by government assessors;
(g) the social and economic benefits contributed by the farmers and the farmworkers, and by the government to the
property; and (h) the nonpayment of taxes or loans secured from any government financing institution on the said land, if
any. It, however, bears stressing that courts are not constrained to adopt the said formula in every case since the
determination of the amount of just compensation essentially partakes the nature of a judicial function. In this accord,
courts may either adopt the DAR formula or proceed with its own application for as long as the factors listed in Section 17
of RA 6657 have been duly considered. (LBP v. Hababag, Sr., et al., G.R. No. 172352, September 16, 2015, reiterating the the
landmark case of Association of Small Landowners in the Philippines, Inc. v. Hon. Secretary of Agrarian Reform, 256 Phil.
777 [1989]).

Point to determine just compensation.

Compensation must be valued at the time of taking, or the time when the landowner was deprived of the use
and benefit of his property, such as when title is transferred in the name of the Republic of the Philippines. Hence, the
evidence to be presented by the parties before the trial court for the valuation of the subject portion must be based on the
values prevalent at such time of taking for like agricultural lands. (DAR v. Berina, et al., G.R. No. 183901; LBP v. Berina, et
al., G.R. No. 183931, July 9, 2014).

Concept of public use.

Public use, in common acceptation, means “use by the public.” However, the concept has expanded to include
utility, advantage or productivity for the benefit of the public. In Asia's Emerging Dragon Corporation v. Department of
Transportation and Communications, G.R. No. 169914, April 18, 2008, 552 SCRA 59, 175, Justice Corona, in his dissenting
opinion said that:
To be valid, the taking must be for public use. The meaning of the term “public use” has evolved
over time in response to changing public needs and exigencies. Public use which was traditionally
understood as strictly limited to actual “use by the public” has already been abandoned. “Public use” has
now been held to be synonymous with “public interest,” “public benefit,” and “public convenience.” (Rep.
v. Heirs of Saturnino Borbon, et al., G.R. No. 165354, January 12, 2015).

Effect if the expropriator abandons the public use.

It is essential that the element of public use of the property be maintained throughout the proceedings for
expropriation. The effects of abandoning the public purpose were explained in Mactan-Cebu International Airport
Authority v. Lozada, Sr., to wit:
More particularly, with respect to the element of public use, the expropriator should commit to
use the property pursuant to the purpose stated in the petition for expropriation filed, failing which, it
should file another petition for the new purpose. If not, it is then incumbent upon the expropriator to
return the said property to its private owner, if the latter desires to reacquire the same. Otherwise, the
judgment of expropriation suffers an intrinsic flaw, as it would lack one indispensable element for the
proper exercise of the power of eminent domain, namely, the particular public purpose for which the
property will be devoted. Accordingly, the private property owner would be denied due process of law,
and the judgment would violate the property owner's right to justice, fairness and equity. (G.R. No.
176625, February 25, 2010, 613 SCRA 618; Rep. v. Heirs of Saturnino Borbon, et al., G.R. No. 165354,
January 12, 2015).

Compensation to be paid; basis; instance of an inverse condemnation proceedings.

State took a private property for public use; cannot it invoke the prescriptive period in recovering the compensation.
The right to recover just compensation is enshrined in no less than our Bill of Rights, which states in clear and
categorical language that “[p]rivate property shall not be taken for public use without just compensation.” (Art. III, Sec. 9,
Constitution). This constitutional mandate cannot be defeated by statutory prescription. (Napocor v. Heirs of Sangkay, G.R.
No. 165828, August 24, 2011). Thus, it has been ruled that the prescriptive period under Section 3 (i) of R.A. No. 6395 does
not extend to an action to recover just compensation. (Napocor v. Sangkay). It would be a confiscatory act on the part of
the government to take the property of respondent spouses for a public purpose and deprive them of their right to just
40 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys
compensation, solely because they failed to institute inverse condemnation proceedings within five years from the time
the transmission lines were constructed. To begin with, it was not the duty of respondent spouses to demand for just
compensation. Rather, it was the duty of NAPOCOR to institute eminent domain proceedings before occupying their
property. In the normal course of events, before the expropriating power enters a private property, it must first file an
action for eminent domain (Rule 67, Sec. 1, Rules of Court) and deposit with the authorized government depositary an
amount equivalent to the assessed value of the property. (Sec. 2, Rule 67). Due to its omission, however, respondents were
constrained to file inverse condemnation proceedings to demand the payment of just compensation before the trial court.
NAPOCOR cannot invoke the statutory prescriptive period to defeat respondent spouses’ constitutional right to just
compensation. (National Power Corporation v. Sps. Saludares, G.R. No. 189127, April 25, 2012).
No actual taking of the building is necessary to grant consequential damages. Consequential damages are awarded
if as a result of the expropriation, the remaining property of the owner suffers from impairment or decrease in value.
(REPUBLIC OF THE PHILIPPINES, REPRESENTED BY THE DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS v. BANK OF
THE PHILIPPINE ISLANDS (BPI), G.R. No. 203039, September 11, 2013).

RA No. 8974 otherwise known as An Act to Facilitate Site or Location for National Government Infrastructure Project
and for Other Purposes provides for guidelines for expropriation proceedings.
The requirements for authorizing immediate entry in expropriation proceedings involving real property are: (1)
the filing of a complaint for expropriation sufficient in form and substance; (2) due notice to the defendant; (3) payment of
an amount equivalent to 100% of the value of the property based on the current relevant zonal valuation of the BIR
including payment of the value of the improvements and/or structures if any, or if no such valuation is available and in
cases of utmost urgency, the payment of the proffered value of the property to be seized; and (4) presentation to the court
of a certificate of availability of funds from the proper officials.
Upon compliance with the requirements, a complainant in an expropriation case is entitled to a writ of possession
as a matter of right, and it becomes the ministerial duty of the trial court to forthwith issue the writ of possession. No
hearing is required, and the court exercises neither its discretion nor its judgment in determining the amount of the
provisional value of the properties to be expropriated, as the legislature has fixed the amount under Section 4 of Republic
Act No. 8974. (Rep. v. Far East Ent. Inc., et al., G.R. No. 176487, August 25, 2009 citing Capitol Steel Corp. v. PHIVIDEC
Industrial Authority, G.R. No. 169453, December 6, 2006, 510 SCRA 590).

ELECTION LAWS

Requirement to be met to justify the cancellation of a COC on the ground of material/false representation.
In order to justify the cancellation of COC under Section 78, it is essential that the false representation pertains to
a material matter for the sanction imposed by this provision would affect the substantive rights of a candidate - the right
to run for the elective post for which he filed the certificate of candidacy. (Salcedo II v. COMELEC, 371 Phil. 377, 386
[1999]). The material representation contemplated by Section 78 refers to qualifications for elective office, such as the
requisite residency, age, citizenship or any other legal qualification necessary to run for a local elective office as provided
for in the Local Government Code. (Villafuerte v. Commission on Election, G.R. No. 206698, February 25, 2014, 717 SCRA
312, 323, citing Salcedo II v. Commission on Elections, supra, at 389, citing RA 7160, Section 39 on qualifications).
Furthermore, aside from the requirement of materiality, the misrepresentation must consist of a deliberate attempt to
mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. (Arnado v. COMELEC, et al., G.R.
No. 210164, August 18, 2015, Del Castillo, J). So, when he stated in his COC that he was qualified to run despite using his
foreign passport after renouncing his other citizenship, he committed material misrepresentation.

Two (2) remedies to prevent candidate from running.

There are two remedies available under existing laws to prevent a candidate from running in an electoral race.
One is by petition for disqualification, and the other by petition to deny due course to or to cancel his certificate of
candidacy. In Fermin v. Commission on Elections, G.R. No. 179695 and G.R. No. 182369, December 18, 2008, 574 SCRA 782,
the Court has differentiated the two remedies thuswise:
[A] petition for disqualification, on the one hand, can be premised on Section 12 or 68 of the
OEC, or Section 40 of the LGC. On the other hand, a petition to deny due course to or cancel a CoC can
only be grounded on a statement of a material representation in the said certificate that is false. The
petitions also have different effects. While a person who is disqualified under Section 68 is merely
prohibited to continue as a candidate, the person whose certificate is cancelled or denied due course
under Section 68 is not treated as a candidate at all, as if he/she never filed a CoC.

Section 78 of the Omnibus Election Code states that a verified petition seeking to deny due course or to cancel a
certificate of candidacy may be filed by the person exclusively on the ground that any material representation contained
therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days
from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than
fifteen days before the election. (Agustin v. COMELEC, et al., G.R. No. 207105, November 10, 2015, Bersamin, J).
Sections 78 and 68 of the OEC should not be confused.
A Section 78 petition should not be interchanged or confused with a Section 68 petition. The remedies under the
two sections are different, for they are based on different grounds, and can result in different eventualities. A person who
is disqualified under Section 68 is prohibited to continue as a candidate, but a person whose CoC is cancelled or denied
due course under Section 78 is not considered as a candidate at all because his status is that of a person who has not filed a
CoC. Miranda v. Abaya has clarified that a candidate who is disqualified under Section 68 can be validly substituted
pursuant to Section 77 because he remains a candidate until disqualified; but a person whose CoC has been denied due
course or cancelled under Section 78 cannot be substituted because he is not considered a candidate (Talaga v. Comelec,
G.R. No. 196804; 197015, October 9, 2012, Bersamin, J).

Nature of petition under Sec. 78.

The denial of due course to or the cancellation of the CoC is not based on the lack of qualifications but on a finding
that the candidate made a material representation that is false, which may relate to the qualifications required of the public
41 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys
office he/she is running for. It is noted that the candidate states in his/her CoC that he/she is eligible for the office he/she
seeks. Section 78 of the OEC, therefore, is to be read in relation to the constitutional and statutory provisions on
qualifications or eligibility for public office. If the candidate subsequently states a material representation in the CoC that
is false, the COMELEC, following the law, is empowered to deny due course to or cancel such certificate. Indeed, a
proceeding under Section 78 is likened to a quo warranto proceeding under Section 253 of the OEC since they both deal
with the eligibility or qualification of a candidate, with the distinction mainly in the fact that a “Section 78” petition is filed
before proclamation, while a petition for quo warranto is filed after proclamation of the winning candidate. (Agustin v.
COMELEC, et al., G.R. No. 207105, November 10, 2015, Bersamin, J; see also Fermin v. Commission on Elections, G.R. No.
179695 and G.R. No. 1823689, December 19, 2008, 574 SCRA 782; Talaga v. Comelec, G.R. No. 186804; 197015, October 9,
2013, Bersamin, J).

False representation attempts to mislead, misinform electorates.

Requisite of material misrepresentation as a ground to cancel COC or to disqualify a candidate.
The denial of due course to or the cancellation of the CoC under Section 78 of the Omnibus Election Code involves
a finding not only that a person lacked a qualification for the office he is vying for but also that such he made a material
representation in the CoC that was false. It was stressed in Mitra v. Commission on Elections, G.R. No. 191938, July 2, 2010,
622 SCRA 744, 769, that in addition to materiality there must be a deliberate attempt to mislead, misinform, or hide a fact
that would otherwise render the candidate ineligible, viz.:
The false representation under Section 78 must likewise be a “deliberate attempt to mislead,
misinform, or hide a fact that would otherwise render a candidate ineligible.” Given the purpose of the
requirement, it must be made with the intention to deceive the electorate as to the would-be candidate’s
qualifications for public office. Thus, the misrepresentation that Section 78 addresses cannot be the
result of a mere innocuous mistake, and cannot exist in a situation where the intent to deceive is patently
absent, or where no deception on the electorate results. The deliberate character of the
misrepresentation necessarily follows from a consideration of the consequences of any material falsity: a
candidate who falsifies a material fact cannot run; if he runs and is elected, he cannot serve; in both
cases, he can be prosecuted for violation of the election laws. (See also Fermin v. Commission on
Elections, supra note 29, at 792; Salcedo II v. Commission on Elections, G.R. No. 135886, August 16, 1999,
312 SCRA 447, 455; (Agustin v. COMELEC, et al., G.R. No. 207105, November 10, 2015, Bersamin, J).).

Dual citizen cannot run for public office.

A dual citizen who renounced his other citizenship but used his foreign passport thereafter is not eligible to run
and be voted for as Mayor of the Municipality of Marcos, Ilocos Norte because after having renounced his USA citizenship
and having already filed his CoC, he travelled abroad using his USA passport, thereby representing himself as a citizen of
the USA. He continued using his USA passport in his subsequent travels abroad despite having been already issued his
Philippine passport on August 23, 2012. He thereby effectively repudiated his oath of renunciation on October 6, 2012, the
first time he used his USA passport after renouncing his USA citizenship on October 2, 2012. Consequently, he could be
considered an exclusively Filipino citizen only for the four days from October 2, 2012 until October 6, 2012.
His continued exercise of his rights as a citizen of the USA through using his USA passport after the renunciation
of his USA citizenship reverted him to his earlier status as a dual citizen. (Maquiling v. Commission on Elections, G.R. No.
195649, April 16, 2013, 696 SCRA 420). Such reversion disqualified him from being elected to public office in the
Philippines pursuant to Section 40(d) of the Local Government Codefor being a dual citizen.
A candidate is ineligible if he is disqualified to be elected to office, and he is disqualified if he lacks any of the
qualifications for elective office. (Salcedo II v. Commission on Elections). Even if it made no finding that the petitioner had
deliberately attempted to mislead or to misinform as to warrant the cancellation of his CoC, the COMELEC could still
declare him disqualified for not meeting the requisite eligibility under the Local Government Code. (Agustin v. COMELEC, et
al., G.R. No. 207105, November 10, 2015, Bersamin, J; Arnado v. Comelec, et al., G.R. No. 210164, August 18, 2015, Del
Castillo, J).

Effect if candidate was declared disqualified by final judgment before election day, effect on votes cast for him.
The effect of his disqualification depends upon whenthe disqualification attained finality. The distinction exists
because of Section 6 of Republic Act No. 6646 (The Electoral Reforms Law of 1987), which states that any candidate who
has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted
for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and
hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. (Cayat v.
Commission on Elections, G.R. No. 163776, and G.R. No. 165736, April 24, 2007, 522 SCRA 23; Agustin v. COMELEC, et al.,
G.R. No. 207105, November 10, 2015, Bersamin, J).

Conviction for libel; candidate is disqualified.

Someone who was convicted of the crime of libel run for public office is disqualified to run for public office,
because he was convicted of a crime involving moral turpitude (Sec. 12, Omnibus Election Code) which shall be removed
after the expiration of five years from his service of sentence.
In Teves v. Comelec, 604 Phil. 717 [2009], the five-year period of disqualification would end only on 25 May 2010
or five years from 24 May 2005, the day petitioner paid the fine he was sentenced to pay in Teves v. Sandiganbayan. In this
case, since he served his sentence when he paid the fine on 17 February 2011, the five-year period shall end only on 16
February 2016. Thus, he is disqualified to become a Member of the House of Representatives until then. (Mary Elizabeth
Ty-Delgado v. HRET, et al., G.R. No. 219603, January 26, 2016, Carpio, J).

Election protest to be filed within 10 days is mandatory and jurisdictional requirement.

Jurisprudence teaches that the rule prescribing the 10-day reglementary period is mandatory and jurisdictional,
and that the filing of an election protest beyond the period deprives the court of jurisdiction over the protest. Violation of
this rule should neither be taken lightly nor brushed aside as a mere procedural lapse that can be overlooked. The rule is
42 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys
not a mere technicality but an essential requirement, the non-compliance of which would oust the court of jurisdiction
over the case.
The rationale behind the non-extendible 10-day prescriptive period is not difficult to deduce – every candidate
interested in the outcome of the election is expected to be vigilant enough in protecting his or her votes and would,
therefore, enlist the aid of volunteer poll watchers in every clustered precinct to guard against or document possible
irregularities, or that the candidate would personally be present at or, at the very least, would send representatives to the
canvassing areas to ensure the proper tallying of votes and to monitor the real-time results of the elections as they are
electronically transmitted. Consequently, they are expected to know of the exact moment the winning candidate is
proclaimed by the board of canvassers concerned. (Maria Angela Garcia v. COMELEC, et al., G.R. No. 216691, July 21, 2015,
Velasco, J).

Concept of nuisance candidates.

Nuisance candidates are persons who file their certificates of candidacy “to put the election process in mockery or
disrepute or to cause confusion among the voters by the similarity of the names of the registered candidates or by other
circumstances or acts which clearly demonstrate that the candidate has no bona fide intention to run for the office for
which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the
electorate.” (Timbol v. COMELEC, G.R. No. 206004, February 24, 2015, Leonen, J).

Wreath of victory cannot be transferred to an ineligible candidate.

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])

Substitution of candidate.
Substitution to be valid, the existence of a valid CoC is a condition sine qua not for a valid substitution.
Considering that a cancelled CoC does not give rise to a valid candidacy, there can be no valid substitution of the candidate
under Section 77 of the Omnibus Election Code. It should be clear, too, that a candidate who does not file a valid CoC may
not be validly substituted, because a person without a valid CoC is not considered a candidate in much the same way as
any person who has not filed a CoC is not at all a candidate (Miranda v. Abaya, G.R. No. 136351, July 28, 1999).
Likewise, a candidate who has not withdrawn his CoC in accordance with Section 73 of the Omnibus Election Code
may not be substituted. A withdrawal of candidacy can only give effect to a substitution if the substitute candidate submits
prior to the election a sworn CoC as required by Section 73 of the Omnibus Election Code (Luna v. Comelex, G.R. No.
165983, April 25, 2007; Talaga v. Comelec, G.R. No. 196804; 197015, October 9, 2012, Bersamin, J).

Substitution of under age candidate.

A minor who filed his certificate of candidacy as an official candidate of a party who subsequently withdrew his
certificate after the deadline of filing of certificates of candidacy may be substituted because she was an official
candidate/nominee of the party, hence, she can be validly substituted. Under Sec. 77 of BP 881, not just any person, but
only an official candidate of a registered political party may be substituted. In Luna v. COMELEC, 550 Phil. 284 [2007], the
SC held that a candidate who was also under age, withdrew his COC before election day and was substituted by a qualified
candidate and it was held that substitution was proper.
If candidate made a material misrepresentation as to his date of birth or age in his certificate of candidacy, his
eligibility may only be impugned through a verified petition to deny due course to or cancel such certificate of candidacy
under Section 78 of the Election Code.
Moreover, the candidate has already withdrawn his certificate of candidacy before the COMELEC declared that he
was not a valid candidate. Therefore, unless his certificate of candidacy was denied due course or cancelled in accordance
with Section 78 of the Election Code, his certificate of candidacy was valid and he may be validly substituted by Luna.
(Cerafica v. COMELEC, G.R. No. 205136, December 2, 2014, Perez, J).

Administrative Law

Doctrine of primary jurisdiction.

A resolution was issued by Samar II Electric Cooperative, Inc. (SAMELCO II) Board of Directors removing a certain
Setudo, Jr. as a member of the Board of Directors is not within the jurisdiction of the court to decide. The National
Electrification Administration has jurisdiction, under the doctrine of primary jurisdiction. The NEA has the power of
supervision and control over electric cooperatives under Secs. 5 & 7.PD No. 1645, hence, the resolution removing the
Director within the power of NEA to review. The RTC has no jurisdiction (Samar II Electric Cooperative, Inc. v. Setudo, Jr.,
G.R. No. 173840, April 25, 2012, Peralta, J).
The doctrine of primary jurisdiction applies where a claim is originally cognizable in the courts and comes into
play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, has been
placed within the special competence of an administrative agency. (Baguna v. Sps. Aggabao, et al., G.R. No. 18487, August
15, 2011). In such a case, the court in which the claim is sought to be enforced may suspend the judicial process pending
referral of such issues to the administrative body for its view or, if the parties would not be unfairly disadvantaged,
dismiss the case without prejudice. (Baguna v. Sps. Aggabao, et al., supra.; SEC, et al. v. CJH Dev. Corp., et al., G.R. No.
210316, November 28, 2016, Peralta, J).

Basis of the doctrine.

The doctrine of exhaustion of administrative remedies is based on practical and legal reasons. (Public Hearing
Committee of the Laguna Lake Development Authority v. SM Prime Holdings, Inc., G.R. No. 170599, September 22, 2010,
43 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys
631 SCRA 73, 79; Montanez v. Provincial Agrarian Reform Adjudicator (PARAD), G.R. No. 183142, September 17, 2009,
600 SCRA 217). The availment of administrative remedy entails lesser expenses and provides for a speedier disposition of
controversies. Furthermore, the courts of justice, for reasons of comity and convenience, will shy away from a dispute until
the system of administrative redress has been completed and complied with, so as to give the administrative agency
concerned every opportunity to correct its error and dispose of the case.

Exhaustion of administrative remedies; exceptions.

It is true that whenever a decision of an administrative agency may be questioned and the law provides for a
remedy of appeal within the administrative structure of government, there must be compliance with the same, otherwise
recourse to the courts directly would be improper for failure to exhaust administrative remedies. The rule regarding
exhaustion of administrative remedies is not a hard and fast rule. It is not applicable (1) where the question in dispute is
purely a legal one, or (2) where the controverted act is patently illegal or was performed without jurisdiction or in excess
of jurisdiction; or (3) where the respondent is a department secretary, whose acts as an alter ego of the President bear the
implied or assumed approval of the latter, unless actually disapproved by him, or (4) where there are circumstances
indicating the urgency of judicial intervention, - Gonzales vs. Hechanova, L-21897, October 22, 1963, 9 SCRA 230;
Abaya vs. Villegas, L-25641, December 17, 1966, 18 SCRA; Mitra vs. Subido, L-21691, September 15, 1967, 21 SCRA 127.
Said principle may also be disregarded when it does not provide a plain, speedy and adequate remedy,
(Cipriano vs. Marcelino, 43 SCRA 291), when there is no due process observed (Villanos vs. Subido, 45 SCRA 299), or where
the protestant has no other recourse (Sta. Maria vs. Lopez, 31 SCRA 637; SEC, et al. v. CJH Dev. Corp., et al.).

Requisites of rule-making power of administrative agencies.

Before there can even be a valid administrative issuance, there must first be a showing that the delegation of
legislative power is itself valid. It is valid only if there is a law that (a) is complete in itself, setting forth therein the policy
to be executed, carried out, or implemented by the delegate; and (b) fixes a standard the limits of which are sufficiently
determinate and determinable to which the delegate must conform in the performance of his functions (William C. Dagan
v. Philippine Racing Commission, 598 Phil. 406, 417 [2009]; Genuino, et al. v. De Lima, & other cases, G.R. Nos. 199034,
199046 and 197930, April 17, 2018).
PUBLIC INTERNATIONAL LAW

The Doctrine of Incorporation; The Doctrine of Transformation.

The doctrine of incorporation means that the rules of international law for part of the law of the land and no
legislative action is required to make them applicable to a country. The Philippines follows his doctrine, because Section 2,
Article II of the Constitution states that the Philippines adopt the generally accepted principles of international law as part
of the law of the land.
The doctrine of transformation on the other hand requires that an international law principle be transformed into
domestic law through a constitutional mechanism, such as local legislation. (Pharmaceutical and Health Care Association
of the Philippines v. Duque, G.R. No. 173034, October 9, 2007). The transformation theory is applied in the Philippines
through treaty-making power of the President. Through this power, rules and principles embodied in a treaty in force
would be transformed into Philippine Law and shall become valid and effective upon the concurrence of 2/3 of all
members of the Senate.

Jurisdictional rules under the International Criminal Court.

The Roman Statute provides for the following jurisdiction:
1. ICC shall have the power to exercise jurisdiction over persons for the most serious crimes of international
concern, covering 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, G.R. No.
158088, July 6, 2005)
2. The Court shall have jurisdiction over the person of an accused only if the crime was committed in the
territory of a State a party to the Rome Statute or if the accused is a national of a State that is party to the
Rome Statute. (Article 12, Rome Statute)
3. A person shall not be criminally liable under the Rome Statute unless the conduct in question constitutes, at
the time it takes place, a crime within the jurisdiction of the Court and after the entry into force of the Rome
Statute. (Article 11 and 22, Rome Statute)

The Philippine Baseline Law (RA 9522) can constitutionally “convert” internal waters into archipelagic waters,
hence subjecting these waters to the right of innocent and sea lanes passage under UNCLOS III, including over flight.
Whether referred to as Philippine “internal waters” under Article I of the Constitution or as “archipelagic waters”
under UNCLOS III (Article 49(1)), the Philippines exercises sovereignty over the body of water lying landward of the
baselines, including the air space over it and the submarine areas underneath. The fact of sovereignty, however, does not
preclude the operation of municipal and international law norms subjecting the territorial sea or archipelagic waters to
necessary, if not marginal, burdens in the interest of maintaining unimpeded, expeditious international navigation,
consistent with the international law principle of freedom of navigation. Thus, domestically, the political branches of the
Philippine government, in the competent discharge of their constitutional powers, may pass legislation designating routes
within the archipelagic waters to regulate innocent and sea lanes passage. (Prof. Merlin M. Magallona, et al. v. Eduardo
Ermita, et al., G.R. No. 187167, July 16, 2011).

UNCLOS; balance State sovereignty.

Under Sec. 31 of the UNCLOS, a flag State shall bear international responsibility for any loss or damage to the
Coastal State resulting from non-compliance with the rules and regulations of the coastal State regarding passage
through the latter’s internal waters and the territorial sea.
Although the US has not yet ratified the UNCLOS, as a matter of long standing policy the US considers itself bound
by customary international rules on the traditional uses of the ocean as codified in the UNCLOS.

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 The international law of the sea is a body of treaty rules and customary norms governing the uses of the sea, the
exploration 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. 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 and
became into force on November 16, 1994.
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) (Bertrand Theodor L. Santos, “Untangling a Tangled Net of Confusion:
Reconciling the Philippine Fishery Poaching Law and the UNCLOS” World Bulletin, Vol. 18: 83-116 (July-December 2002),
p. 96). The freedom to use the world’s marine waters is one of the oldest customary principles 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.
Insofar as the internal waters and territorial sea is concerned, the Coastal State exercises sovereignty, subject to
the UNCLOS and other rules of international law. Such sovereignty extends to the air space over the territorial sea as well
as to its bed and subsoil (Fr. Arigo, et al. v. Swift, et al., G.R. No. 206510, September 16, 2014).

Concept of the rule of specialty; Extradition.

Under the rule of specialty in international law, a Requested State shall surrender to a Requesting State a person
to be tried only for a criminal offense specified in their treaty of extradition. Conformably with the dual criminality rule
embodied in the extradition treaty between the Philippines and the Hong Kong Special Administrative Region (HKSAR),
however, the Philippines as the Requested State is not bound to extradite the respondent to the jurisdiction of the HKSAR
as the Requesting State for the offense of accepting an advantage as an agent considering that the extradition treaty is
forthright in providing that surrender shall only be granted for an offense coming within the descriptions of offenses in its
Article 2 insofar as the offenses are punishable by imprisonment or other form of detention for more than one year, or by a
more severe penalty according to the laws of both parties.
Juan Antonio Muñoz could only be extradited to and tried by the HK.SAR for seven (7) counts of conspiracy to
defraud, but not for the other crime of accepting an advantage as an agent. This, because conspiracy to defraud was a public
sector offense, but accepting an advantage as an agent dealt with private sector bribery; hence, the dual criminality rule
embodied in the treaty of extradition has not been met.
Article 2 of the RP-Hong Kong treaty provides that surrender of the extraditee by the Requested State to the
Requesting State shall only be for an offense coming within any of the descriptions of the offenses therein listed insofar as
the offenses are punishable by imprisonment or other form of detention for more than one year, or by a more severe
penalty according to the laws of both parties. The provision expresses the dual criminality rule. The determination of
whether or not the offense concerned complied with the dual criminality rule rests on the Philippines as the requested
party. Hence, the Philippines must carefully ascertain the exact nature of the offenses involved in the request, and thereby
establish that the surrender of Munoz for trial in the HKSAR will be proper. On its part, the HKSAR as the requesting party
should prove that the offense is covered by the RP-Hong Kong Treaty, and punishable in our jurisdiction (Hongkong
Special Administrative Region v. Juan Antonio Moñuz, G.R. No. 207342, November 7, 2017, Bersamin, J).

Proposed Rule on Precautionary Hold Departure Order

Section 1.Precautionary Hold Departure Order. – is an order in writing issued by a court commanding the
Bureau of Immigration to prevent any attempt by a person suspected of a crime to depart from the Philippines, which shall
be issued ex-parte in cases involving crimes where the minimum of the penalty prescribed by law is at least six (6) years
and one (1) day.

Section.Where filed. – The application for precautionary hold departure order may be filed by a prosecutor with
any regional trial court within whose territorial jurisdiction the alleged crime was committed. Provided, that for
compelling reason, it can be filed with any regional trial court within the judicial region where the crime was committed if
the place of the commission of the crime is known; Provided, further, that the regional trial courts in the City of Manila,
Quezon City, Cebu City, Iloilo City, Davao City, and Cagayan de Oro City shall also have the authority to act on applications
filed by the prosecutor based on complaints instituted by the National Bureau of Investigation, regardless where the
alleged crime was committed.

Section 3.Finding of probable cause. – Upon motion by the complainant in a criminal complaint filed before the
office of the city or provincial prosecutor, and upon a preliminary determination of probable cause based on the complaint
and attachment, the investigating prosecutor may file an application on behalf of the complainant for a precautionary hold
departure order with the proper regional trial court. The application shall be accompanied by the complaint-affidavit and
its attachments, and a photo of the respondent, if available.

Section 4.Grounds for issuance. – A precautionary hold departure order shall not issue except upon
determination by the judge, in whose court the application is filed, that probable cause exists, and there is a high
probability that he or she will depart from the Philippines to evade arrest and prosecution of crime against him or her. The
judge shall personally examine under oath or affirmation, in the form of searching questions and answers in writing, the
applicant and the witnesses he or she may produce on facts personally known to them and attaching to the record their
sworn statements.
If the judge finds that probable cause exists and there is a high probability that the respondent will depart, he or
she shall issue the order and direct the Bureau of Immigration to hold and prevent the departure of the respondent at the
Philippine ports. Otherwise, the judge shall order the dismissal of the application.

Section 5.Preliminary finding of probable cause. – Since the finding of probable cause by the judge is solely
based on the complaint and is specifically issued for the purpose of issuing the hold departure order, the same shall be

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without prejudice to the resolution of the prosecution of the criminal complaint considering the complaint-affidavit,
counter-affidavit, reply-affidavit, and the evidence presented by both parties during the preliminary investigation.

Section 6.Form and validity of the precautionary hold departure order. – The precautionary hold departure
order shall indicate the name of the respondent, his or her alleged crime; the time and place of its commission, and the
name of the complainant. A copy of the application, and photograph of the respondent, if available, shall be appended to
the order. The order shall be valid until recalled by the court.
The court shall furnish the Bureau of Immigration with a copy of the hold departure order within twenty-four
(24) hours from issuance.

Section 7.Lifting of the Order. – The respondent may file a verified motion before the issuing court for the
cancellation of the order on the grounds that, based on the complaint-affidavit and the evidence that he or she will present,
there is doubt that probable cause exists; or it is shown that he or she is not a flight risk; Provided, that the respondent
posts a bond. Provided, further, that the filing of the order is without prejudice to the resolution of the preliminary
investigation against the respondent.

Section 8.Bond. – Respondent may ask the issuing court to allow him or her to leave the country upon posting a
bond in an amount to be determined by the court.

Good Luck to All 2018 Bar Examinees

We Are Praying for Your Success

God Bless

From: ABRC Family

46 |ABRC2018.Magic Areas in Political Law (revised with insertions)revised/EVSA/crys