Political Law

ADMINISTRATIVE LAW
Doctrine of primary jurisdiction.
Q 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. A
petition for prohibition was filed with the RTC. Is the petition proper? Why?
Answer: No, because 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.).
Nature of the doctrine
Corollary to the doctrine of primary jurisdiction is the principle of exhaustion of
administrative remedies. The Court, in a long line of cases, (City Engineer of Baguio v.
Baniqued, G.R. No. 150270, November 26, 2008) has held that before a party is allowed to seek
the intervention of the courts, it is a pre-condition that he avail himself of all administrative
processes afforded him. Hence, if a remedy within the administrative machinery can be resorted
to by giving the administrative officer every opportunity to decide on a matter that comes within
his jurisdiction, then such remedy must be exhausted first before the courts power of judicial
review can be sought. The premature resort to the court is fatal to ones cause of
action. Accordingly, absent any finding of waiver or estoppel, the case may be dismissed for lack
of cause of action. (City Engineer of Baguio v. Baniqued, supra.).
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, 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.
Exceptions to the doctrine.
True, the doctrines of primary jurisdiction and exhaustion of administrative remedies are subject
to certain exceptions, to wit: (a) where there is estoppel on the part of the party invoking the
doctrine; (b) where the challenged administrative act is patently illegal, amounting to lack of
jurisdiction; (c) where there is unreasonable delay or official inaction that will irretrievably
prejudice the complainant; (d) where the amount involved is relatively so small as to make the
rule impractical and oppressive; (e) where the question involved is purely legal and will
ultimately have to be decided by the courts of justice; (f) where judicial intervention is urgent;
(g) where the application of the doctrine may cause great and irreparable damage; (h) where the
controverted acts violate due process; (i) where the issue of non-exhaustion of administrative
remedies has been rendered moot; (j) where there is no other plain, speedy and adequate remedy;
(k) where strong public interest is involved; and (l) inquo warranto proceedings. (Vigilar v.
Aquino, G.R. No. 180388, January 18, 2011; Rep. v. Lacap, G.R. No. 158253, March 2, 2007;
Samar II Electric Coop., Inc. v. Setudo, Jr., G.R. No. 173840).
Administrative Law
We have ruled that dismissal of a criminal action does not foreclose institution of an
administrative proceeding against the same respondent, nor carry with it the relief from
administrative liability. It is a basic rule in administrative law that public officials are under a
three-fold responsibility for a violation of their duty or for a wrongful act or omission, such that
they may be held civilly, criminally and administratively liable for the same act. Administrative
liability is thus separate and distinct from penal and civil liability. (Office of the Pres. V.
Cataquiz, G.R. No. 183445, September 14, 2011).
Moreover, the fact that the administrative case and the case filed before the Ombudsman are
based on the same subject matter is of no moment. It is a fundamental principle of
administrative law that the administrative case may generally proceed against a respondent
independently of a criminal action. for the same act or omission and requires only a
preponderance of evidence to establish administrative guilt as against proof beyond reasonable
doubt of the criminal charge. (Amadore v. Romulo, G.R. No. 161608, August 9, 2005).
Accordingly, the dismissal of two criminal cases by the Sandiganbayan and of several criminal
complaints by the Ombudsman did not result in the absolution of petitioner from the
administrative charges. (Hon. Fernando Melendres v. PAGC, et al., G.R. No. 163859, August
15, 2012, Villarama, J).
Political Law
ARTICLE VI LEGISLATIVE DEPARTMENT
Composition of the JBC.
Q Atty. Francisco Chavez questioned the constitutionality of the practice of Congress of
sending two (2) representatives to the JBC with full separate votes when the Constitution
provides for only one (1) representative. The petitioner contended that the framers of the
Constitution envisioned only seven (7) members but the practice is different as there are
now (8) members. Furthermore, he contended that the JBC cannot conduct valid
proceedings as its composition is illegal and unconstitutional. The OSG contended that
there are two (2) houses of the Congress, the Senate and the House of Representatives. The
House without the Senate, is not the Congress. Bicamerlism, as the system of choice by the
Framers, requires that both houses exercise their respective powers in the performance of
its mandated duty which is to legislate. Thus, when Section 8(1), Article VIII of the
Constitution speaks of a representative from Congress, it should mean one
representative each from both Houses which comprise the entire Congress.
It was contended by the petitioner that the use of the singular letter a preceding
representative of Congress is unequivocal and leaves no room for any other construction.
It is indicative that the Constitutional Commission had in mind that Congress may
designate only one (1) representative to the JBC. Is the contention correct? Explain.
Answer: Yes. Constitution is very clear. The Constitution provides:
A Judicial & Bar Council is hereby created under the supervision of the Supreme Court
composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio members, a representative of the Integrated Bar; a
professor of law, a retired Member of the Supreme Court and a representative of the private
sector. (Art. VIII, Sec. 8 of the Constitution).
The use of the singular letter a preceding representative of Congress is unequivocal and
leaves no room for any other construction. It is indicative of what the members of the
Constitutional Commission had in mind, that is, Congress may designate only one (1)
representative to the JBC. Had it been the intention that more than one (1) representative from
the legislature would sit in the JBC, the Framers could have, in no uncertain terms, so provided.
(Francisco Chavez v. JBC, et al., G.R. No. 202242, July 17, 2012).
One of the primary and basic rules in statutory construction is that where the words of a statute
are clear, plain, and free from ambiguity, it must be given its literal meaning and applied without
attempted interpretation. (National Food Authority (NFA) v. Masada Security Agency, Inc., 493
Phil. 241, 250 (2005); Philippine National Bank v. Garcia, Jr., 437 Phil. 289 (2002))It is a well-
settled principle of constitutional construction that the language employed in the Constitution
must be given their ordinary meaning except where technical terms are employed. As much as
possible, the words of the Constitution should be understood in the sense they have in common
use. What it says according to the text of the provision to be construed compels acceptance and
negates the power of the courts to alter it, based on the postulate that the framers and the people
mean what they say. (Francisco, Jr. v. House of Representatives, 460 Phil. 830 (2003);
Kilosbayan v. Guingona, G.R. No. 113375, May 5, 1994, 232 SCRA 110). Verba legis non est
recedendum from the words of a statute there should be no departure. (Francisco, Jr. v. House
of Representatives).
The raison d tre for the rule is essentially two-fold: First, because it is assumed that the words
in which constitutional provisions are couched express the objective sought to be attained; and
second, because the Constitution is not primarily a lawyers document but essentially that of the
people, in whose consciousness it should ever be present as an important condition for the rule of
law to prevail.
Moreover, under the maxim noscitur a sociis, where a particular word or phrase is ambiguous in
itself or is equally susceptible of various meanings, its correct construction may be made clear
and specific by considering the company of words in which it is founded or with which it is
associated. This is because a word or phrase in a statute is always used in association with other
words or phrases, and its meaning may, thus, be modified or restricted by the latter. The
particular words, clauses and phrases should not be studied as detached and isolated expressions,
but the whole and every part of the statute must be considered in fixing the meaning
of any of its parts and in order to produce a harmonious whole. A statute must be so construed as
to harmonize and give effect to all its provisions whenever possible. In short, every meaning to
be given to each word or phrase must be ascertained from the context of the body of the statute
since a word or phrase in a statute is always used in association with other words or phrases and
its meaning may be modified or restricted by the latter.
Applying the foregoing principle to this case, it becomes apparent that the word Congress used
in Article VIII, Section 8(1) of the Constitution is used in its generic sense. No particular allusion
whatsoever is made on whether the Senate or the House of Representatives is being referred to,
but that, in either case, only a singular representative may be allowed to sit in the JBC. The
foregoing declaration is but sensible, since, as pointed out by an esteemed former member of the
Court and consultant of the JBC in his memorandum, from the enumeration of the membership
of the JBC, it is patent that each category of members pertained to a single individual only.
Indeed, the spirit and reason of the statute may be passed upon where a literal meaning would
lead to absurdity, contradiction, injustice, or defeat the clear purpose of the lawmakers. Not any
of these instances, however, is present in the case at bench. Considering that the language of the
subject constitutional provision is plain and unambiguous, there is no need to resort extrinsic aids
such as records of the Constitutional Commission. (Francisco Chavez v. JBC, et al., G.R. No.
202242, July 17, 2012).
Purpose of the 7-member composition.
Q State the reason behind the 7-member composition requirement of the JBC. Explain.
Answer: The seven-member composition of the JBC serves a practical purpose, that is, to
provide a solution should there be a stalemate in voting. This underlying reason leads the Court
to conclude that a single vote may not be divided into half (1/2), between two representatives of
Congress, or among any of the sitting members of the JBC for that matter. This unsanctioned
practice can possibly cause disorder and eventually muddle the JBCs voting process, especially
in the event a tie is reached. The aforesaid purpose would then be rendered illusory, defeating the
precise mechanism which the Constitution itself created. While it would be unreasonable to
expect that the Framers provide for every possible scenario, it is sensible to presume that they
knew that an odd composition is the best means to break a voting deadlock. (Chavez v. JBC,
supra.).
Bicameral nature of Congress; effect.
Q The respondents insisted that owing to the bicameral nature of Congress, the word
Congress in Section 8(1), Article VIII of the Constitution should be read as including
both the Senate and the House of Representatives. They theorized that it was so worded
because at the time the said provision was being drafted, the Framers initially intended a
unicameral form of Congress. Then, when the Constitutional Commission eventually
adopted a bicameral form of Congress, the Framers, through oversight, failed to amend
Article VIII, Section 8 of the Constitution. Is the contention correct? Why?
Answer: No. Congress in the context of JBC representation, should be considered as one body.
It is evidence that the definition of Congress as a bicameral body refers to its primary function
in government to legislate. (Sec. 27(1), Art. VI, Constitution). In the passage of laws, the
Constitution is explicit in the distinction of the role of each house in the process. The same holds
true in Congress non-legislative powers such as inter alia, the power of appropriation, (Sec. 24,
Art. VI, Constitution), the declaration of an existence of a state of war, (Sec. 23(1), Art. VI,
Constitution), canvassing of electoral returns for the President and Vice-President, (Sec. 4, Art.
VII, Constitution), and impeachment (Sec. 3(1), Art. II, Constitution). In the exercise of these
powers, the Constitution employs precise language in laying down the roles which a particular
house plays, regardless of whether the two houses consummate an official act by voting jointly
or separately. An inter-play between the two houses is necessary in the realization of these
powers causing a vivid dichotomy that the Court cannot simply discount. Verily, each house is
constitutionally granted with powers and functions peculiar to its nature and with keen
consideration to 1) its relationship with the other chamber; and 2) in consonance with the
principle of checks and balances, to the other branches of government.
This, however, cannot be said in the case of JBC representation because no liaison between the
two houses exists in the workings of the JBC. No mechanism is required between the Senate and
the House of Representatives in the screening and nomination of judicial officers. Hence, the
term Congress must be taken to mean the entire legislative department. A fortiori, a pretext of
oversight cannot prevail over the more pragmatic scheme which the Constitution laid with
firmness, that is, that the JBC has a seat for a single representative of Congress, as one of the co-
equal branches of government. (Francisco Chavez v. JBC, et al., G.R. No. 202242, July 17,
2012).
Q What is the rationale behind the creation of the JBC? Explain.
Answer: The Framers of our Constitution intended to create a JBC as an innovative solution in
response to the public clamor in favor of eliminating politics in the appointment of members of
the Judiciary. To ensure judicial independence, they adopted a holistic approach and hoped that,
in creating a JBC, the private sector and the three branches of government would have an active
role and equal voice in the selection of the members of the Judiciary.
Therefore, to allow the Legislature to have more quantitative influence in the JBC by having
more than one voice speak, whether with one full vote or one-half (1/2) a vote each, would, as
one former congressman and member of the JBC put it, negate the principle of equality among
the three branches of government which is enshrined in the Constitution. (Francisco Chavez v.
JBC, et al., G.R. No. 202242, July 17, 2012).
It is clear, therefore, that the Constitution mandates that the JBC be composed of seven (7)
members only. Thus, any inclusion of another member, whether with one whole vote or half
(1/2) of it, goes against that mandate. Section 8(1), Article VIII of the Constitution, providing
Congress with an equal voice with other members of the JBC in recommending appointees to the
Judiciary is explicit. Any circumvention of the constitutional mandate should not be
countenanced for the Constitution is the supreme law of the land. The Constitution is the basic
and paramount law to which all other laws must conform and to which all persons, including the
highest officials of the land, must defer. Constitutional doctrines must remain steadfast no matter
what may be the tides of time. It cannot be simply made to sway and accommodate the call of
situations and much more tailor itself to the whims and caprices of the government and the
people who run it. Hence, any act of the government or of a public official or employee which is
contrary to the Constitution is illegal, null and void.
Q It was contended that the JBC cannot conduct valid proceedings as its composition is
illegal and unconstitutional. In short, the status of the prior acts would be unconstitutional
and void. Is the contention correct? Why?
Answer: No. Despite the unconstitutional composition of the JBC, the previous acts are still
valid.
As a general rule, an unconstitutional act is not a law; it confers no rights; it imposes no duties; it
affords no protection; it creates no office; it is inoperative as if it has not been passed at all. (Yap
v. Thennamaris Ships Management and Intermare Maritime Agencies, Inc., G.R. No. 179532,
May 30, 2011, 649 SCRA 485). This rule, however, is not absolute. In the interest of fair play
under the doctrine of operative facts, actions previous to the declaration of unconstitutionality are
legally recognized. They are not nullified. In Planters Products, Inc. v. Fertiphil Corporation, the
Court explained:
The doctrine of operative fact, as an exception to the general rule, only applies as a matter of
equity and fair play. It nullifies the effects of an unconstitutional law by recognizing that the
existence of a statute prior to a determination of unconstitutionality is an operative fact and may
have consequences which cannot always be ignored. The past cannot always be erased by a new
judicial declaration.
The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden
on those who have relied on the invalid law. Thus, it was applied to a criminal case when a
declaration of unconstitutionality would put the accused in double jeopardy or would put in
limbo the acts done by a municipality in reliance upon a law creating it.
Considering the circumstances, the exception is applicable notwithstanding the
unconstitutionality in the current composition of the JBC. All its prior official actions are
nonetheless valid. (Francisco Chavez v. JBC, et al., G.R. No. 202242, July 17, 2012).
Note:
At this point, the Court takes the initiative to clarify that it is not in a position to determine as to
who should remain as the sole representative of Congress in the JBC. This is a matter beyond the
province of the Court and is best left to the determination of Congress.
Finally, while the Court finds wisdom in respondents contention that both the Senate and the
House of Representatives should be equally represented in the JBC, the Court is not in a position
to stamp its imprimatur on such a construction at the risk of expanding the meaning of the
Constitution as currently worded. Needless to state, the remedy lies in the amendment of this
constitutional provision. The courts merely give effect to the lawgivers intent. The solemn
power and duty of the Court to interpret and apply the law does not include the power to correct,
by reading into the law what is not written therein.
Q Lawyers Against Monopoly & Poverty (LAMP) filed a petition seeking to prohibit an
automatic and direct allocation of lump sums to individual members of Congress for the
funding of projects. It contended that the GAA does not empower the individual members
of Congress to propose, select, identify programs and projects to be funded out of PDAF. It
contended that the act runs afoul against the principle of separation of powers because in
receiving and, thereafter, spending funds for their chosen projects, the Members of
Congress in effect intrude into an executive function. In other words, they cannot directly
spend the funds, the appropriation for which was made by them. In their individual
capacities, the Members of Congress cannot virtually tell or dictate upon the Executive
Department how to spend taxpayers money. Further, the authority to propose and select
projects does not pertain to legislation. It is, in fact, a non-legislative function devoid of
constitutional sanction, and, therefore, impermissible and must be considered nothing less
than malfeasance. The proposal and identification of the projects do not involve the
making of laws or the repeal and amendment thereof, which is the only function given to
the Congress by the Constitution. Verily, the power of appropriation granted to Congress
as a collegial body, does not include the power of the Members thereof to individually
propose, select and identify which projects are to be actually implemented and funded - a
function which essentially and exclusively pertains to the Executive Department. By
allowing the Members of Congress to receive direct allotment from the fund, to propose
and identify projects to be funded and to perform the actual spending of the fund, the
implementation of the PDAF provision becomes legally infirm and constitutionally
repugnant.
The respondent contended that the petitioner failed to present even an iota of proof that
the DBM Secretary has been releasing lump sums from PDAF directly or indirectly to
individual Member of Congress, the petition falls short of its cause.
They likewise invoked Philconsa v. Enriquez, G.R. No. 113888, August 19, 1994, 235 SCRA
506, where CDF was described as an imaginative and innovative process or mechanism of
implementing priority programs/projects specified in the law. In Philconsa, the Court
upheld the authority of individual Members of Congress to propose and identify priority
projects because this was merely recommendatory in nature. In said case, it was also
recognized that individual members of Congress far more than the President and their
congressional colleagues were likely to be knowledgeable about the needs of their respective
constituents and the priority to be given each project. Rule on the contention of the
petitioners. Explain.
Answer: The petition is devoid of merit. There was no evidence that the funds were directly
released to the Members of Congress who actually spent the same to their sole discretion.
Under the Constitution, the power of appropriation is vested in the Legislature, subject to the
requirement that appropriation bills originate exclusively in the House of Representatives with
the option of the Senate to propose or concur with amendments. While the budgetary process
commences from the proposal submitted by the President to Congress, it is the latter which
concludes the exercise by crafting an appropriation act it may deem beneficial to the nation,
based on its own judgment, wisdom and purposes. Like any other piece of legislation, the
appropriation act may then be susceptible to objection from the branch tasked to implement it, by
way of a Presidential veto. Thereafter, budget execution comes under the domain of the
Executive branch which deals with the operational aspects of the cycle including the allocation
and release of funds earmarked for various projects. Simply put, from the regulation of fund
releases, the implementation of payment schedules and up to the actual spending of the funds
specified in the law, the Executive takes the wheel. The DBM lays down the guidelines for the
disbursement of the fund. The Members of Congress are then requested by the President to
recommend projects and programs which may be funded from the PDAF. The list submitted by
the Members of Congress is endorsed by the Speaker of the House of Representatives to the
DBM, which reviews and determines whether such list of projects submitted are consistent with
the guidelines and the priorities set by the Executive. This demonstrates the power given to the
President to execute appropriation laws and therefore, to exercise the spending per se of the
budget.
As applied to this case, the petition is seriously wanting in establishing that individual
Members of Congress receive and thereafter spend funds out of PDAF. Although the possibility
of this unscrupulous practice cannot be entirely discounted, surmises and conjectures are not
sufficient bases for the Court to strike down the practice for being offensive to the Constitution.
Moreover, the authority granted the Members of Congress to propose and select projects was
already upheld in Philconsa. This remains as valid case law. So long as there is no showing of a
direct participation of legislators in the actual spending of the budget, the constitutional
boundaries between the Executive and the Legislative in the budgetary process remain intact.
(Lawyers Against Monopoly & Poverty (LAMP), et al. v. The Secretary of Budget and
Management, et al., G.R. No. 164987, April 24, 2012, Mendoza, J).
Note:
The powers of government are generally divided into three branches: the Legislative, the
Executive and the Judiciary. Each branch is supreme within its own sphere being independent
from one another and it is this supremacy which enables the courts to determine whether a law is
constitutional or unconstitutional. (Arroyo v. HRET, et al., 316 Phil. 464 (1995)). The 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. (Tanada v. Angara, 338 Phil. 546 (1997)).
Q In allowing the direct allocation and release of PDAF funds to the Members of
Congress on their own list of proposed projects, did the implementation of the PDAF
provision under the GAA of 2004 violate the Constitution or the laws?
Answer: No. In determining whether or not a statute is unconstitutional, the Court does not lose
sight of the presumption of validity accorded to statutory acts of Congress. In Farias v. The
Executive Secretary, 463 Phil. 179 (2003), the Court held that:
Every statute is presumed valid. The presumption is that the legislature intended to enact a valid,
sensible and just law and one which operates no further than may be necessary to effectuate the
specific purpose of the law. Every presumption should be indulged in favor of the
constitutionality and the burden of proof is on the party alleging that there is a clear and
unequivocal breach of the Constitution.
To justify the nullification of the law or its implementation, there must be a clear and
unequivocal, not a doubtful, breach of the Constitution. In case of doubt in the sufficiency of
proof establishing unconstitutionality, the Court must sustain legislation because to invalidate [a
law] based on x x x baseless supposition is an affront to the wisdom not only of the legislature
that passed it but also of the executive which approved it. (ABAKADA Guro Party List v.
Purisima, G.R. No. 166715, August 14, 2008, 562 SCRA 251). This presumption of
constitutionality can be overcome only by the clearest showing that there was indeed an
infraction of the Constitution, and only when such a conclusion is reached by the required
majority may the Court pronounce, in the discharge of the duty it cannot escape, that the
challenged act must be struck down. (Drilon v. Lina, G.R. No. 112497, August 4, 1994, 235
SCRA 135).
Political Law
ARTICLE VII EXECUTIVE DEPARTMENT
Immunity of suit of the President.
Q May the President be sued during her/his incumbency and even after the term of
office? Explain.
Answer: No, during the incumbency of the President by reason of public policy. One reason for
the immunity of the President from suit is the respect due to the office.
It is settled in jurisprudence that the President enjoys immunity from suit during his or
her tenure of office or actual incumbency. (David vs. Arroyo, 522 Phil. 705 (2006)). Conversely,
this presidential privilege of immunity cannot be invoked by a non-sitting president even for acts
committed during his or her tenure. (Rodriguez v. Arroyo, G.R. No. 191805 & 793160,
November 15, 2011; Estrada v. Disierto, 408 Phil. 194 (2001)).
If tenure of office has already ended the former President can no longer invoke the
privilege of presidential immunity as a defense to evade judicial determination of her
responsibility or accountability for the alleged violation or threatened violation of the right of
life, liberty and security of a person who may have filed a petition for the issuance of the Writ of
Amparo. (Lozada, Jr. v. Macapagal, et al., G.R. No. 184379-80, April 24, 2012).
How martial law power is shared with Congress.
Q Former President Arroyo issued Proclamation 1959 declaring martial law and
suspending the writ of habeas corpus in the province of Maguindanao after the
Maguindanao Massacre. The basic purpose was to secure the place from large groups of
persons that have taken up arms against the duly constituted authorities. She submitted
her report to Congress in accordance with Art. VII, Sec. 18 of the Constitution which
required her, within 48 hours to submit the report. Congress in joint session convened to
review the validity of the Presidentials action pursuant to Sec. 18, Art. VI of the
Constitution but the President withdrew the proclamation before Congress could act. The
petitioners challenged the proclamation. Should the Court still decide the issue? Explain.
Answer: As a general rule, No, because the issue has become moot and academic. In exceptional
cases, the Court may decide moot and academic cases to prevent repetition of the issue or act
being done. This is true if the issue is of transcendental importance to educate the bar, the bench,
and even the Executive Department. But in this case, the Court found no sufficient basis for the
exercise of the power of judicial review. (Fortun, et al. v. Arroyo, et al., G.R. No. 190293, March
20, 2012, and companion cases).
Q The President has the power to declare martial law or suspend the privilege of the writ
of habeas corpus. In what way does the President share the power with Congress? Explain.
Answer: Although the Constitution vests in the President the power to proclaim martial law or
suspend the privilege of the writ of habeas corpus, he shares such power with the
Congress. Thus:
1. The Presidents proclamation or suspension is temporary, good for only 60 days;
2. He must, within 48 hours of the proclamation or suspension, report his action in person or in writing to
Congress;
3. Both houses of Congress, if not in session must jointly convene within 24 hours of the proclamation or
suspension for the purpose of reviewing its validity; and
4 The Congress, voting jointly, may revoke or affirm the Presidents proclamation or suspension, allow their
limited effectivity to lapse, or extend the same if Congress deems warranted.
It is evident that under the 1987 Constitution the President and the Congress act in tandem
in exercising the power to proclaim martial law or suspend the privilege of the writ of habeas
corpus. They exercise the power, not only sequentially, but in a sense jointly since, after the
President has initiated the proclamation or the suspension, only the Congress can maintain the
same based on its own evaluation of the situation on the ground, a power that the President does
not have.
Consequently, although the Constitution reserves to the Supreme Court the power to
review the sufficiency of the factual basis of the proclamation or suspension in a proper suit, it is
implicit that the Court must allow Congress to exercise its own review powers, which is
automatic rather than initiated. Only when Congress defaults in its express duty to defend the
Constitution through such review should the Supreme Court step in as its final rampart. The
constitutional validity of the Presidents proclamation of martial law or suspension of the writ
of habeas corpus is first a political question in the hands of Congress before it becomes a
justiciable one in the hands of the Court. (Fortun, et al. v. Arroyo, et al., G.R. No. 190293, March
20, 2012 & companion cases).
Power of the President to remove Deputy Ombudsman is implied in the power to appoint.
In Emilio Gonzales III v. Office of the President, et al., G.R. No. 196231; Wendell Barreras-Sulit
v. Ochoa, Jr., et al., G.R. No. 196232, September 4, 2012, the SC once again ruled that the
power to appoint implies with it the power to remove.
The Ombudsmans administrative disciplinary power over a Deputy Ombudsman and
Special Prosecutor is not exclusive.
It is true that the authority of the Office of the Ombudsman to conduct administrative
investigations proceeds from its constitutional mandate to be an effective protector of the people
against inept and corrupt government officers and employees, and is subsumed under the broad
powers explicitly conferred upon it by the 1987 Constitution and R.A. No. 6770.
While the Ombudsmans authority to discipline administratively is extensive and covers all
government officials, whether appointive or elective, with the exception only of those officials
removable by impeachment, the members of congress and the judiciary, such authority is by no
means exclusive. Petitioners cannot insist that they should be solely and directly subject to the
disciplinary authority of the Ombudsman. For, while Section 21 declares the Ombudsmans
disciplinary authority over all government officials, Section 8(2), on the other hand, grants the
President express power of removal over a Deputy Ombudsman and a Special Prosecutor.
Indubitably, the manifest intent of Congress in enacting both provisions - Section 8(2) and
Section 21 - in the same Organic Act was to provide for an external authority, through the person
of the President, that would exercise the power of administrative discipline over the Deputy
Ombudsman and Special Prosecutor without in the least diminishing the constitutional and
plenary authority of the Ombudsman over all government officials and employees. Such
legislative design is simply a measure of check and balance intended to address the
lawmakers real and valid concern that the Ombudsman and his Deputy may try to protect one
another from administrative liabilities.
This would not be the first instance that the Office of the President has locked horns with the
Ombudsman on the matter of disciplinary jurisdiction. An earlier conflict had been settled in
favor of shared authority in Hagad v. Gozo Dadole. In said case, the Mayor and Vice-Mayor of
Mandaue City, and a member of the Sangguniang Panlungsod, were charged before the Office of
the Deputy Ombudsman for the Visayas with violations of R.A. No. 3019, R.A. No. 6713, and
the Revised Penal Code. The pivotal issue raised therein was whether the Ombudsman had been
divested of his authority to conduct administrative investigations over said local elective officials
by virtue of the subsequent enactment of the Local Government Code of 1991 (R.A. No. 7160),
the pertinent provision of which states:
Sec. 61. Form and Filing of Administrative Complaints. A verified complaint against any
erring local elective official shall be prepared as follows:
(a) A complaint against any elective official of a province, a highly urbanized city, an independent
component city or component city shall be filed before the Office of the President.
The Court resolved said issue in the negative, upholding the ratiocination of the Solicitor General
that R.A. No. 7160 should be viewed as having conferred on the Office of the President, but not
on an exclusive basis, disciplinary authority over local elective officials. Despite the fact that
R.A. No. 7160 was the more recent expression of legislative will, no repeal of pertinent
provisions in the Ombudsman Act was inferred therefrom. Thus said the Court:
Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether
expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the
specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to
only uphold one and strike down the other. Well settled is the rule that repeals of laws by
implication are not favored, and that courts must generally assume their congruent application.
The two laws must be absolutely incompatible, and a clear finding thereof must surface, before
the inference of implied repeal may be drawn. The rule is expressed in the maxim, interpretare et
concordare legibus est optimus interpretendi, i.e., every statute must be so interpreted and
brought into accord with other laws as to form a uniform system of jurisprudence. The
fundament is that the legislature should be presumed to have known the existing laws on the
subject and not to have enacted conflicting statutes. Hence, all doubts must be resolved against
any implied repeal, and all efforts should be exerted in order to harmonize and give effect to all
laws on the subject.
While Hagad v. Gozo Dadole upheld the plenary power of the Office of the Ombudsman to
discipline elective officials over the same disciplinary authority of the President under R.A. No.
7160, the more recent case of the Office of the Ombudsman v. Delijero tempered the exercise by
theOmbudsman of such plenary power invoking Section 23(2) of R.A. No. 6770, which gives the
Ombudsman the option to refer certain complaints to the proper disciplinary authority for the
institution of appropriate administrative proceedings against erring public officers or
employees.
The Court underscored therein the clear legislative intent of imposing a standard and a separate
set of procedural requirements in connection with administrative proceedings involving public
school teachers41 with the enactment of R.A. No. 4670, otherwise known as The Magna Carta
for Public School Teachers. It thus declared that, while the Ombudsmans administrative
disciplinary authority over a public school teacher is concurrent with the proper investigating
committee of the Department of Education, it would have been more prudent under the
circumstances for the Ombudsman to have referred to the DECS the complaint against the public
school teacher.
Unquestionably, the Ombudsman is possessed of jurisdiction to discipline his own people and
mete out administrative sanctions upon them, including the extreme penalty of dismissal from
the service. However, it is equally without question that the President has concurrent authority
with respect to removal from office of the Deputy Ombudsman and Special Prosecutor, albeit
under specified conditions. Considering the principles attending concurrence of jurisdiction
where the Office of the President was the first to initiate a case against petitioner Gonzales,
prudence should have prompted the Ombudsman to desist from proceeding separately against
petitioner through its Internal Affairs Board, and to defer instead to the Presidents assumption of
authority, especially when the administrative charge involved "demanding and soliciting a sum
of money" which constitutes either graft and corruption or bribery, both of which are grounds
reserved for the Presidents exercise of his authority to remove a Deputy Ombudsman.
In any case, assuming that the Ombudsmans Internal Affairs Board properly conducted a
subsequent and parallel administrative action against petitioner, its earlier dismissal of the charge
of graft and corruption against petitioner could not have the effect of preventing the Office of the
President from proceeding against petitioner upon the same ground of graft and corruption. After
all, the doctrine of res judicata applies only to judicial or quasi-judicial proceedings, not to the
exercise of administrative powers. In Montemayor v. Bundalian,43 the Court sustained the
Presidents dismissal from service of a Regional Director of the Department of Public Works and
Highways (DPWH) who was found liable for unexplained wealth upon investigation by the now
defunct Philippine Commission Against Graft and Corruption (PCAGC). The Court
categorically ruled therein that the prior dismissal by the Ombudsman of similar charges against
said official did not operate as res judicata in the PCAGC case.
By granting express statutory power to the President to remove a Deputy Ombudsman and
a Special Prosecutor, Congress merely filled an obvious gap in the law.
Section 9, Article XI of the 1987 Constitution confers upon the President the power to appoint
the Ombudsman and his Deputies, viz:
Section 9. The Ombudsman and his Deputies shall be appointed by the President from a list of at
least six nominees prepared by the Judicial and Bar Council, and from a list of three nominees
for every vacancy thereafter. Such appointments shall require no confirmation. All vacancies
shall be filled within three months after they occur.
While the removal of the Ombudsman himself is also expressly provided for in the Constitution,
which is by impeachment under Section 244 of the same Article, there is, however, no
constitutional provision similarly dealing with the removal from office of a Deputy Ombudsman,
or a Special Prosecutor, for that matter. By enacting Section 8(2) of R.A. 6770, Congress simply
filled a gap in the law without running afoul of any provision in the Constitution or existing
statutes. In fact, the Constitution itself, under Section 2, authorizes Congress to provide for the
removal of all other public officers, including the Deputy Ombudsman and Special Prosecutor,
who are not subject to impeachment.
The Power of the President to Remove a Deputy Ombudsman and a Special Prosecutor is
Implied from his Power to Appoint.
Under the doctrine of implication, the power to appoint carries with it the power to remove. As a
general rule, therefore, all officers appointed by the President are also removable by him. The
exception to this is when the law expressly provides otherwise that is, when the power to
remove is expressly vested in an office or authority other than the appointing power. In some
cases, the Constitution expressly separates the power to remove from the Presidents power to
appoint. Under Section 9, Article VIII of the 1987 Constitution, the Members of the Supreme
Court and judges of lower courts shall be appointed by the President. However, Members of the
Supreme Court may be removed after impeachment proceedings initiated by Congress (Section
2, Article XI), while judges of lower courts may be removed only by the Supreme Court by
virtue of its administrative supervision over all its personnel (Sections 6 and 11, Article VIII).
The Chairpersons and Commissioners of the Civil Service Commission [Section 1(2), Article
IX(B)], the Commission on Elections [Section 1(2), Article IX(C)], and the Commission on
Audit [Section 1(2), Article IX(D)] shall likewise be appointed by the President, but they may be
removed only by impeachment (Section 2, Article XI). As priorly stated, the Ombudsman
himself shall be appointed by the President (Section 9, Article XI) but may also be removed only
by impeachment (Section 2, Article XI).
In giving the President the power to remove a Deputy Ombudsman and Special Prosecutor,
Congress simply laid down in express terms an authority that is already implied from the
Presidents constitutional authority to appoint the aforesaid officials in the Office of the
Ombudsman.
Granting the President the Power to Remove a Deputy Ombudsman does not Diminish the
Independence of the Office of the Ombudsman.
The claim that Section 8(2) of R.A. No. 6770 granting the President the power to remove a
Deputy Ombudsman from office totally frustrates, if not resultantly negates the independence of
the Office of the Ombudsman is tenuous. The independence which the Office of the Ombudsman
is vested with was intended to free it from political considerations in pursuing its constitutional
mandate to be a protector of the people. What the Constitution secures for the Office of the
Ombudsman is, essentially, political independence. This means nothing more than that the
terms of office, the salary, the appointments and discipline of all persons under the office are
reasonably insulated from the whims of politicians. And so it was that Section 5, Article XI of
the 1987 Constitution had declared the creation of the independent Office of the Ombudsman,
composed of the Ombudsman and his Deputies, who are described as protectors of the people
and constitutionally mandated to act promptly on complaints filed in any form or manner against
public officials or employees of the Government [Section 12, Article XI]. Pertinent provisions
under Article XI prescribes a term of office of seven years without reappointment [Section 11],
prohibits a decrease in salaries during the term of office Section 10], provides strict
qualifications for the office [Section 8], grants fiscal autonomy [Section 14] and ensures the
exercise of constitutional functions [Section 12 and 13]. The cloak of independence is meant to
build up the Office of the Ombudsmans institutional strength to effectively function as official
critic, mobilizer of government, constitutional watchdog53 and protector of the people. It
certainly cannot be made to extend to wrongdoings and permit the unbridled acts of its officials
to escape administrative discipline.
Nature of co-terminous appointment; temporary in nature.
Once again, the SC in Samuel Ong v. Office of the President, et al., G.R. No. 184219, January
30, 2012, the SC held that if an appointee to the position Director III, NBI does not possess CES
eligibility, his appointment is merely co-terminous with the appointing authority. His
appointment being both temporary and co-terminous, it can be revoked by the President even
without cause and at a short notice.
It is established that no officer or employee in the Civil Service shall be removed or suspended
except for cause provided by law. (Mita Pardode Tavera v. Phil. Tuberculosis Society, Inc., 197
Phil. 919 (1982)). However, this admits of exceptions for it is likewise settled that the right to
security of tenure is not available to those employees whose appointments are contractual and
co-terminous in nature. (CSC v. Magnaye, Jr., G.R. No. 183337, April 23, 2010, 619 SCRA
347).
In Amores v. Civil Service Commission, et al., G.R. No. 170093, April 29, 2009, 587 SCRA 160
the SC ruled that an appointment is permanent where the appointee meets all the requirements
for the position to which he is being appointed, including the appropriate eligibility prescribed,
and it is temporary where the appointee meets all the requirements for the position except only
the appropriate civil service eligibility.
x x x x
x x x Verily, it is clear that the possession of the required CES eligibility is that which will make
an appointment in the career executive service a permanent one. x x x
Indeed, the law permits, on many occasions, the appointment of non-CES eligibles to
CES positions in the government in the absence of appropriate eligibles and when there is
necessity in the interest of public service to fill vacancies in the government. But in all such
cases, the appointment is at best merely temporary as it is said to be conditioned on the
subsequent obtention of the required CES eligibility. x x x
x x x
Security of tenure in the career executive service, which presupposes a permanent
appointment, takes place upon passing the CES examinations administered by the CES Board. x
x x
Q As an appointee holding a position co-terminus with the appointing authority, is he
entitled to remain as Director III until the end of the Presidents tenure on June 30, 2010?
Why?
Answer: No. A co-terminous appointment as one co-existent with the tenure of the appointing
authority or at his pleasure.
In Mita Pardo de Tavera v. Philippine Tuberculosis Society, Inc. the SC sustained the
replacement of an incumbent, who held an appointment at the pleasure of the appointing
authority. Such appointment was in essence temporary in nature. The incumbents replacement is
not a removal but rather as an expiration of term and no prior notice, due hearing or cause were
necessary to effect the same. In Decano v. Edu, ruled that the acceptance of a temporary
appointment divests an appointee of the right to security of tenure against removal without cause.
Further, in Carillo vs. CA, L-24554, May 31, 1967, 77 SCRA 170, it was said that one who
holds a temporary appointment has no fixed tenure of office; his employment can be terminated
at the pleasure of the appointing authority, there being no need to show that the termination is for
cause.
Political Law
ARTICLE VIII JUDICIARY
Power of judicial review; requisites.
Like almost all powers conferred by the Constitution, 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 raised at the earliest opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case. (Senate of the Phil. v. Ermita, G.R. No.
169777, April 20, 2006, 488 SCRA 1).
An aspect of the case-or-controversy requirement is the requisite of ripeness. In the United
States, courts are centrally concerned with whether a case involves uncertain contingent future
events that may not occur as anticipated, or indeed may not occur at all. Another concern is the
evaluation of the twofold aspect of ripeness: first, the fitness of the issues for judicial decision;
and second, the hardship to the parties entailed by withholding court consideration. In our
jurisdiction, the issue of ripeness is generally treated in terms of actual injury to the
plaintiff. Hence, a question is ripe for adjudication when the act being challenged has had a
direct adverse effect on the individual challenging it. (Lozano v. Nograles, G.R. Nos. 187883 and
187910, June 16, 2009, 589 SCRA 356, citing Guingona, Jr. v. Court of Appeals, 354 Phil. 415).
In this case, the petitioner contested the implementation of an alleged unconstitutional statute, as
citizens and taxpayers. According to LAMP, the practice ofdirect allocation and release of funds
to the Members of Congress and the authority given to them to propose and select projects is the
core of the laws flawed execution resulting in a serious constitutional transgression involving
the expenditure of public funds. Undeniably, as taxpayers, LAMP would somehow be adversely
affected by this. A finding of unconstitutionality would necessarily be tantamount to a
misapplication of public funds which, in turn, cause injury or hardship to taxpayers. This affords
ripeness to the present controversy.
Further, the allegations in the petition do not aim to obtain sheer legal opinion in the nature of
advice concerning legislative or executive action. The possibility of constitutional violations in
the implementation of PDAF surely involves the interplay of legal rights susceptible of judicial
resolution. For LAMP, this is the right torecover public funds possibly misapplied by no less
than the Members of Congress. Hence, without prejudice to other recourse against erring public
officials, allegations of illegal expenditure of public funds reflect a concrete injury that may have
been committed by other branches of government before the court intervenes. The possibility
that this injury was indeed committed cannot be discounted. The petition complains of illegal
disbursement of public funds derived from taxation and this is sufficient reason to say that there
indeed exists a definite, concrete, real or substantial controversy before the Court.
Anent locus standi, the rule is that the person who impugns the validity of a statute must have a
personal and substantial interest in the case such that he has sustained, or will sustained, direct
injury as a result of its enforcement. (People v. Vera, 65 Phil. 56 (1937)). The gist of the
question of standing is whether a party alleges such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of difficult constitutional questions.
(Navarro v. Ermita, G.R. No. 180050, April 12, 2011, 648 SCRA 400). In public suits, the
plaintiff, representing the general public, asserts a public right in assailing an allegedly illegal
official action. The plaintiff may be a person who is affected no differently from any other
person, and could be suing as a stranger, or as a citizen or taxpayer. (David v. Macapagal-
Arroyo, G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489 and 171424, May 3, 2006,
489 SCRA 160). Thus, taxpayers have been allowed to sue where there is a claim that public
funds are illegally disbursed or that public money is being deflected to any improper purpose, or
that public funds are wasted through the enforcement of an invalid or unconstitutional law.
(Public Interest Center, Inc. v. Honorable Vicente Q. Roxas, in his capacity as Presiding Judge,
RTC of Quezon City, Branch 227, G.R. No. 125509, January 31, 2007, 513 SCRA 457, 470) Of
greater import than the damage caused by the illegal expenditure of public funds is the mortal
wound inflicted upon the fundamental law by the enforcement of an invalid statute. (People v.
Vera, 65 Phil. 56 (1937)).
Here, the sufficient interest preventing the illegal expenditure of money raised by taxation
required in taxpayers suits is established. Thus, in the claim that PDAF funds have been
illegally disbursed and wasted through the enforcement of an invalid or unconstitutional law,
LAMP should be allowed to sue. The case of Pascual v. Secretary of Public Works, 110 Phil.
331 (1960), is authority in support of the petitioner:
In the determination of the degree of interest essential to give the requisite standing to attack the
constitutionality of a statute, the general rule is that not only persons individually affected, but
also taxpayers have sufficient interest in preventing the illegal expenditures of moneys
raised by taxation and may therefore question the constitutionality of statutes
requiring expenditure of public moneys. (11 Am. Jur. 761) (Lawyers Against Monopoly &
Poverty (LAMP), et al., G.R. No. 164987, April 24, 2012).
Q In dismissing MERALCOs petition for review of the resolution of the Office of the
City Prosecutor of Pasig City, the Secretary of Justice ruled that after carefully examining
the petition and its attachments, no error on the part of the handling prosecutor was found
to have been committed which would warrant a reversal of the challenged resolution. It
concluded that the challenged resolution was in accord with the evidence and the law on
the matter.
MERALCO contended that the resolution was invalid because of the absence of any
statement of facts and law upon which it is based, as required under Section 14, Article
VIII of the Constitution and Section 14, Chapter III, Book VII of the Administrative Code
of 1987. It claimed that the requirement to state the facts and the law in a decision is a
mandatory requirement and the DOJ is not exempt from complying with the same. Is the
contention correct? Why?
Answer: No. MERALCO failed to note that Section 14, Article VIII of the Constitution refers to
courts, thereby excluding the DOJ Secretary and prosecutors who are not members of the
Judiciary. In Odchigue-Bondoc v. Tan Tiong Bio, G.R. No. 186652, October 6, 2010, 632 SCRA
457, it was ruled that Section 4, Article VIII of the Constitution does not x x x extend to
resolutions issued by the DOJ Secretary, because the DOJ is not a quasi-judicial body and the
action of the Secretary of Justice in reviewing a prosecutors order or resolution via appeal or
petition for review cannot be considered a quasi-judicial proceeding.
In Spouses Balangauan v. Court of Appeals, Special Nineteenth Division, Cebu City, G.R. No.
174350, August 13, 2008, 562 SCRA 184, it was said that a preliminary investigation is not a
quasi-judicial proceeding, and the DOJ is not a quasi-judicial agency exercising a quasi-judicial
function when it reviews the findings of a public prosecutor regarding the presence of probable
cause. A quasi-judicial agency performs adjudicatory functions when its awards determine the
rights of parties, and its decisions have the same effect as a judgment of a court. [This] is not
the case when a public prosecutor conducts a preliminary investigation to determine probable
cause to file an information against a person charged with a criminal offense, or when the
Secretary of Justice [reviews] the formers order[s] or resolutions on determination of probable
cause. (Manila Electric Co. v. Atilano, et al., G.R. No. 166758, June 27, 2012, Brion, J).
Note:
When the public prosecutor conducts preliminary investigation, he thereby
exercises investigative or inquisitorial powers. Investigative or inquisitorial powers include the
powers of an administrative body to inspect the records and premises, and investigate the
activities of persons or entities coming under his jurisdiction, or to secure, or to require the
disclosure of information by means of accounts, records, reports, statements, testimony of
witnesses, and production of documents. This power is distinguished from judicial adjudication
which signifies the exercise of power and authority to adjudicate upon the rights and obligations
of concerned parties. Indeed, it is the exercise of investigatory powers which sets a public
prosecutor apart from the court.
The public prosecutor exercises investigative powers in the conduct of preliminary investigation
to determine whether, based on the evidence presented to him, he should take further action by
filing a criminal complaint in court. In doing so, he does not adjudicate upon the rights,
obligations or liabilities of the parties before him. Since the power exercised by the public
prosecutor in this instance is merely investigative or inquisitorial, it is subject to a different
standard in terms of stating the facts and the law in its determinations. This is also true in the
case of the DOJ Secretary exercising her review powers over decisions of public
prosecutors. Thus, it is sufficient that in denying a petition for review of a resolution of a
prosecutor, the DOJ resolution state the law upon which it is based. (Manila Electric Co. v.
Atilano, et al., G.R. No. 166758, June 27, 2012, Brion, J).
Note:
When the public prosecutor conducts preliminary investigation, he thereby
exercises investigative or inquisitorial powers. Investigative or inquisitorial powers include the
powers of an administrative body to inspect the records and premises, and investigate the
activities of persons or entities coming under his jurisdiction, or to secure, or to require the
disclosure of information by means of accounts, records, reports, statements, testimony of
witnesses, and production of documents. This power is distinguished from judicial adjudication
which signifies the exercise of power and authority to adjudicate upon the rights and obligations
of concerned parties. Indeed, it is the exercise of investigatory powers which sets a public
prosecutor apart from the court.
The public prosecutor exercises investigative powers in the conduct of preliminary investigation
to determine whether, based on the evidence presented to him, he should take further action by
filing a criminal complaint in court. In doing so, he does not adjudicate upon the rights,
obligations or liabilities of the parties before him. Since the power exercised by the public
prosecutor in this instance is merely investigative or inquisitorial, it is subject to a different
standard in terms of stating the facts and the law in its determinations. This is also true in the
case of the DOJ Secretary exercising her review powers over decisions of public
prosecutors. Thus, it is sufficient that in denying a petition for review of a resolution of a
prosecutor, the DOJ resolution state the law upon which it is based. (Manila Electric Co. v.
Atilano, et al., G.R. No. 166758, June 27, 2012, Brion, J).
It was ruled that the DOJ resolution satisfactorily complied with constitutional and legal
requirements when it stated its legal basis for denying MERALCOs petition for review which is
Section 7 of Department Circular No. 70, which authorizes the Secretary of Justice to dismiss a
petition outright if he finds it to be patently without merit or manifestly intended for delay, or
when the issues raised therein are too insubstantial to require consideration.
The DOJ resolution noted that MERALCO failed to submit a legible true copy of the
confirmation of sale dated May 30, 2000 and considered the omission in violation of Section 5 of
Department Circular No. 70. MERALCO assails the dismissal on this ground as an overly
technical application of the rules and claims that it frustrated the ends of substantial justice. We
note, however, that the failure to attach the document was not the sole reason of the DOJs denial
of MERALCOs petition for review. As mentioned, the DOJ resolution dismissed the petition
primarily because the prosecutors resolution is in accord with the evidence and the law on the
matter.
At this point, it becomes unnecessary to decide the legality of Section 7 of DOJ Department
Circular No. 70 allowing the outright dismissal of MERALCOs petition for review. It is basic
that this Court will not pass upon a constitutional question although properly presented by the
record if the case can be disposed of on some other ground.
Also, DOJ Department Circular No. 70 is an enactment of an executive department of the
government and is designed for the expeditious and efficient administration of justice; before it
was enacted, it is presumed to have been carefully studied and determined to be
constitutional. Lest we be misunderstood, we do not hereby evade our duty; in the absence of any
grave abuse of discretion, we merely accord respect to the basic constitutional principle of
separation of powers, which has long guided our system of government.
The determination of probable cause for the filing of an information in court is an
executive function
The determination of probable cause for the filing of an information in court is an executive
function which pertains at the first instance to the public prosecutor and then to the Secretary of
Justice. As a rule, in the absence of any grave abuse of discretion, courts are not empowered to
substitute their own judgment for that of the executive branch; (Cruzvale, Inc. v. Eduque, G.R.
Nos. 172785-86, June 18, 2009, 589 SCRA 534) the public prosecutor alone determines the
sufficiency of evidence that will establish probable cause in filing a criminal information
and courts will not interfere with his findings unless grave abuse of discretion can be shown.
(Sanrio Co. Ltd. V. Lim, G.R. No. 168662, February 19, 2008; Manila Electric Co. v. Atilano, et
al., G.R. No. 166758, June 27, 2012, Brion, J).
Political Law
BILL OF RIGHTS : CITIZENSHIP
Naturalization laws are strictly construed, burden lies in the petitioner to prove
qualifications.
Q Kerry Lao Ong filed a petition for naturalization alleging that he was born in Cebu
City of Chinese parents on March 4, 1958. He alleged that he took his elementary and high
school education at the Sacred Heart for Boys in Cebu City where social studies, Pilipino,
religion and the Philippine Constitution were taught. He obtained a degree of Bachelor
Arts in Management at the Ateneo de Manila in 1978. In 1981, he got married with a
Chinese and have four (4) children. He has been engaged in business since 1989 with an
average annual income of P150,000.00. He alleged his various residence; has socialized with
Filipinos and with sound physical and mental health.
After trial, the court granted the petition, but the Republic appealed alleging that
he failed to prove that he possessed a known lucrature trade, possession and occupation.
The CA ruled that there was an appreciable margin of his income over the expenses as to
be able to provide for his family. The Republic contended otherwise, considering that he
has four (4) children, all studying in exclusive school. Is the contention of the Republic
correct? Why?
Answer: Yes. Naturalization proceedings are imbued with the highest public
interest. Naturalization laws should be rigidly enforced and strictly construed in favor of the
government and against the
applicant. The burden of proof rests upon the applicant to show full and complete
compliance with the requirements of law.
Under the law, one of the qualifications for a person to become a Filipino citizen by
naturalizarion is that he must own real estate in the Philippines worth not less than five thousand
pesos, Philippine currency, or must have some known lucrative trade, profession or lawful
occupation. (Sec. 2, Revised Naturalization Law (RA 473)).
Based on jurisprudence, the qualification of some known lucrative trade, profession, or lawful
occupation means not only that the person having the employment gets enough for his ordinary
necessities in life. It must be shown that the employment gives one an income such that there is
an appreciable margin of his income over his expenses as to be able to provide for an adequate
support in the event of unemployment, sickness, or disability to work and thus avoid ones
becoming the object of charity or a public charge. (Chua Kian Lai v. Republic, 158 Phil. 44
(1974); In the Matter of the Petition of Tiong v. Republic, supra; In the Matter of the Petition of
Ban Uan, supra; Chiao v. Republic, 154 Phil. 8 (1974); Watt v. Republic, 150-B Phil. 610
(1972)). His income should permit him and the members of his family to live with reasonable
comfort, in accordance with the prevailing standard of living, and consistently with the demands
of human dignity, at this stage of our civilization. (In the Matter of the Petition of Ban Uan, 154
Phil. 552 (1974); In the Matter of the Petition of Tiong v. Republic, 157 Phil. 107 (1974); Tan v.
Republic, 121 Phil. 643 (1965); Rep. v. Kerry Lao Ong, G.R. No. 175430, June 18, 2012).
Q Is the income of the applicants spouse considered in determining lucrative income?
Why?
Answer: No. In determining the existence of a lucrative income, the courts should consider only
the applicants income; his or her spouses income should not be included in the
assessment. The spouses additional income is immaterial for under the law the petitioner
should be the one to possess some known lucrative trade, profession or lawful occupation to
qualify him to become a Filipino citizen. (Li Tong Pek v. Republic, 122 Phil 828 (1965); See
also Uy v. Republic, 120 Phil. 973 91964)). Lastly, the Court has consistently held that the
applicants qualifications must be determined as of the time of the filing of his petition. (Chiu
Bok v. Republic, 245 Phil. 144 (1988); The San v. Republic, 132 Phil. 221 (1968); Lim Uy v.
Republic, 121 Phil. 1181 (1965); Ong Tai v. Republic, 120 Phil. 1345 (1964) Rep. v. Kerry Lao
Ong, G.R. No. 175430, June 18, 2012).
The dearth of documentary evidence compounds the inadequacy of the testimonial
evidence. The applicant provided no documentary evidence, like business permits, registration,
official receipts, or other business records to demonstrate his proprietorship or participation in a
business. Instead, Ong relied on his general assertions to prove his possession of
some known lucrative trade, profession or lawful occupation. Bare, general assertions cannot
discharge the burden of proof that is required of an applicant for naturalization.
Ongs gross income might have been sufficient to meet his familys basic needs, but there is
simply no sufficient proof that it was enough to create an appreciable margin of income over
expenses. Without an appreciable margin of his income over his familys expenses, his income
cannot be expected to provide him and his family with adequate support in the event of
unemployment, sickness, or disability to work.
Clearly, therefore, respondent Ong failed to prove that he possesses the qualification of a known
lucrative trade provided in Section 2, fourth paragraph, of the Revised Naturalization Law. (Rep.
v. Kerry Lao Ong, G.R. No. 175430, June 18, 2012, Del Castillo, J).
Nature of citizenship; no res judicata; exception.
Q May the citizenship of a person be threshed out again and again? Explain.
Answer: Yes. Citizenship proceedings are a class of its own, in that, unlike other cases, res
judicata does not obtain as a matter of course. In a long line of decisions, the Court said that
every time the citizenship of a person is material or indispensable in a judicial or administrative
case; whether the corresponding court or administrative authority decides therein as to such
citizenship is generally not considered as res judicata; hence, it has to be threshed out again and
again as the occasion may demand. (Go v. Ramos, G.R. No. 167569 and other companion cases,
September 4, 2009).
Q May the Board of Commissioners determine the citizenship of a person in deportation
proceedings? Explain.
Answer: Yes. Citizenship proceedings are a class of its own, in that, unlike other cases, res
judicata does not obtain as a matter of course. In a long line of decisions, the Court said that
every time the citizenship of a person is material or indispensable in a judicial or administrative
case, whatever the corresponding court or administrative authority decides therein as to such
citizenship is generally not considered as res judicata; hence, it has to be threshed out again and
again as the occasion may demand. Res judicata may be applied in cases of citizenship only if
the following concur:
a persons citizenship must be raised as a material issue in a controversy where said person is a
party;
the Solicitor General or his authorized representative took active part in the resolution thereof;
and
the finding or citizenship is affirmed by this Court. (Board of Commissioners v. Dela Rosa, G.R.
No. 95612-13, May 31, 1991; Burca v. Rep., G.R. No. L-24252, June 15, 1973).
In the event that the citizenship of a person will be questioned, or his deportation sought, the
same has to be ascertained once again as the decision which will be rendered hereinafter shall
have no preclusive effect upon his citizenship. (Go v. Ramos, G.R. No. 167569 & other
companion cases, September 4, 2009).
Q May the Board of Commissioners determine the citizenship of a person in deportation
proceedings? Explain.
Answer: Yes. There can be no question that the Board has the authority to hear and determine
the deportation case against a deportee and in the process determine also the question of
citizenship raised by him. (Lao Gi v. Court of Appeals, G.R. No. 81798, December 29, 1989,
180 SCRA 756). However, there is an exception to the primary jurisdiction enjoyed by the
deportation board in the case of Chua Hiong v. Deportation Board, 96 Phil. 665 (1955), wherein
it was stressed that judicial determination is permitted in cases when the courts themselves
believe that there is substantial evidence supporting the claim of citizenship, so substantial that
there are reasonable grounds for the belief that the claim is correct. (Co v. The Deportation
Board, No. L-22748, July 27, 1997, 78 SCRA 104). Moreover, when the evidence submitted by
a deportee is conclusive of his citizenship, the right to immediate review should also be
recognized and the courts shall promptly enjoin the deportation proceedings. (Chua Hiong v.
Deportation Board; Co v. Deportation Board; Calacday v. Vivo, No. L-26681, May 29, 1970, 33
SCRA 413).
While we are mindful that resort to the courts may be had, the same should be allowed only in
the sound discretion of a competent court in proper proceedings. After all, the Boards
jurisdiction is not divested by the mere claim of citizenship. Moreover, a deportee who claims to
be a citizen and not therefore subject to deportation has the right to have his citizenship reviewed
by the courts, after the deportation proceedings. The decision of the Board on the question is, of
course, not final but subject to review by the courts. (Chua Hiong v. Deportation Board; Miranda
v. Deportation Board, 94 Phil. 531 (1954); Go v. Ramos, G.R. No. 167569, September 4, 2009).
Doctrine of jus soli.
One of the arguments raised to sustain Carlos claim to Philippine citizenship is the doctrine
of jus soli, or the doctrine or principle of citizenship by place of birth. To recall, both the trial
court and the Court of Appeals ruled that the doctrine of jus soli was never extended to
the Philippines. We agree. The doctrine of jus soli was for a time the prevailing rule in the
acquisition of ones citizenship. However, the Supreme Court abandoned the principle of jus
soli in the case of Tan Chong v. Secretary of Labor. Since then, said doctrine only benefited
those who were individually declared to be citizens of the Philippines by a final court decision on
the mistaken application of jus soli.
3-year period to elect Filipino citizenship.
Q If a person was born under the 1935 Constitution of a Filipino mother and a foreign
father, he has to elect Philippine citizenship by expressing such intention in a statement to
be signed and sworn to by the party concerned before an officer authorized by law to
administer oaths and shall be filed with the nearest civil registry. Within what period
should he do it? Explain.
Answer: He must do it within 3 years from attainment of the age of majority. The 1935
Constitution and Com. Act No. 625 did not prescribe a time period within which the election of
Philippine citizenship should be made. The 1935 Charter only provides that the election should
be made upon reaching the age of majority. The age of majority then commenced upon
reaching 21 years. In the opinions of the then Secretary of Justice on cases involving the validity
of election of Philippine citizenship, this dilemma was resolved by basing the time period on the
decisions of the Court prior to the effectivity of the 1935 Constitution. In these decisions, the
proper period for electing Philippine citizenship was, in turn, based on the pronouncements of
the Department of State of the United States Government to the effect that the election should be
made within a reasonable time after attaining the age of majority. The phrase reasonable
time has been interpreted to mean that the election should be made within three (3) years from
reaching the age of majority. (Go v. Ramos, G.R. No. 167569, September 4, 2009).
Note:
It is true that the 3-year period for electing Philippine citizenship may be extended as when the
person has always regarded himself as a Filipino. Be that as it may, it is our considered view
that not a single circumstance was sufficiently shown meriting the extension of the 3-year
period. The fact that Carlos exercised his right of suffrage in 1952 and 1955 does not
demonstrate such belief, considering that the acts were done after he elected Philippine
citizenship. On the other hand, the mere fact that he was able to vote does not validate his
irregular election of Philippine citizenship. At most, his registration as a voter indicates his
desire to exercise a right appertaining exclusively to Filipino citizens but does not alter his real
citizenship, which, in this jurisdiction, is determined by blood (jus sanguinis). The exercise of
the rights and privileges granted only to Filipinos is not conclusive proof of citizenship, because
a person may misrepresent himself to be a Filipino and thus enjoy the rights and privileges of
citizens of this country.
It is incumbent upon one who claims Philippine citizenship to prove to the satisfaction of the
court that he is really a Filipino. No presumption can be indulged in favor of the claimant of
Philippine citizenship, and any doubt regarding citizenship must be resolved in favor of the State.
(Paa v. Chan, No. L-25945, October 31, 1967, 21 SCRA 753).
As Carlos and Jimmy neither showed conclusive proof of their citizenship nor presented
substantial proof of the same, we have no choice but to sustain the Boards jurisdiction over the
deportation proceedings. This is not to say that we are ruling that they are not Filipinos, for that
is not what we are called upon to do. This Court necessarily has to pass upon the issue of
citizenship only to determine whether the proceedings may be enjoined in order to give way to a
judicial determination of the same. And we are of the opinion that said proceedings should not
be enjoined. (Go, Sr. v. Ramos, G.R. No. 167569, September 4, 2009).
Political Law
BILL OF RIGHTS : DUE PROCESS
Notice sufficient in due process.
Q A person who was subjected to administrative charge requested for a formal
investigation, but the PAGC denied it, hence, he claimed that his right to due process was
violated. Is the contention correct? Explain.
Answer: No. Due process, as a constitutional precept, does not always and in all situations
require a trial-type proceeding. It is satisfied when a person is notified of the charge against him
and given an opportunity to explain or defend himself. In administrative proceedings, the filing
of charges and giving reasonable opportunity for the person so charged to answer the accusations
against him constitute the minimum requirements of due process. More often, this opportunity is
conferred through written pleadings that the parties submit to present their charges and defenses.
(Cabalit v. COA, Region VII, G.R. Nos. 180236, 180341 & 180362, January 17, 2012; Office of
the Ombudsman v. Galicia, G.R. No. 167711, October 10, 2008, 568 SCRA 327). But as long as
a party is given the opportunity to defend his or her interests in due course,said party is not
denied due process. (Cayago v. Lina, G.R. No. 149539, January 19, 2005, 449 SCRA 29).
As this Court held in Medina v. Commission on Audit:
As correctly pointed out by the OSG, the denial of petitioners request for a formal
investigation is not tantamount to a denial of her right to due process. Petitioner was
required to file a counter-affidavit and position paper and later on, was given a chance to file two
motions for reconsideration of the decision of the deputy ombudsman. The essence of due
process in administrative proceedings is the opportunity to explain ones side or seek a
reconsideration of the action or ruling complained of. As long as the parties are given the
opportunity to be heard before judgment is rendered, the demands of due process are
sufficiently met. (G.R. No. 176478, February 4, 2008, 543 SCRA 684 citing Montemayor v.
Bundalian, 453 Phil. 158 (2003)).
Since petitioner was given the opportunity to defend himself from the charges against him, as in
fact he submitted a Counter-Affidavit with the PAGC, though he failed to comply with the order
for the submission of position paper, he cannot complain of denial of due process. (Dr. Fernando
Melendres v. PAGC, et al., G.R. No. 163859, August 15, 2012, Villarama, J).
Q In March 2001, Mayor Roman H. Rosales of Lemery, Batangas, appointed Magnaye as
Utility Worker I at the Office of Economic Enterprise (Operation of Market) (OEE). After
a few days, Mayor Rosales detailed him to the Municipal Planning and Development
Office.
In the May elections of that year, Mayor Rosales was defeated by Raul L.
Bendana, who assumed office on June 30, 2001. Thereafter, Magnaye was returned to his
original assignment at the OEE. On July 11, 2001, Bendana also placed him on detail at the
Municipal Planning and Development Office to assist in the implementation of a Survey on
the Integrated Rural Accessibility Planning Project.
On August 13, 2001, the new mayor served him a notice of termination from
employment effective the following day for unsatisfactory conduct and want of capacity.
Magnaye questioned his termination before the CSC head office on the ground
that Mayor Bendana was not in a position to effectively evaluate his performance because it
was made less than one and one-half months after his (Mayor Bendanas) assumption to
office. He added that his termination was without basis and was politically motivated. Is his
contention correct? Why?
Answer: Yes, because he was deprived of the right to due process. In Tria v. Chairperson
Patricia Sto. Tomas, G.R. No. 85670, July 31, 1991, 199 SCRA 833, the prohibition in Art.
IX(B)(2)(3) of the Constitution against dismissal of a civil service officer or employee "except
for cause provided by law" is a guaranty of both procedural and substantive due
process. Procedural due process requires that the dismissal comes only after notice and hearing,
(Reyes v. Subido, 66 SCRA 2003 (1975), while substantive due process requires that the
dismissal be for cause. (Dario v. Mison, G.R. No. 81954, August 8, 1989, 176 SCRA 84).
He was denied procedural due process when he received his notice of termination only a day
before he was dismissed from the service. Evidently, he was effectively deprived of the
opportunity to defend himself from the charge that he lacked the capacity to do his work and that
his conduct was unsatisfactory. As well, during his appeal to the CSCRO-IV, he was not
furnished with the submissions of Mayor Bendaa that he could have opposed. He was also
denied substantive due process because he was dismissed from the service without a valid cause
for lack of any factual or legal basis for his want of capacity and unsatisfactory conduct. (CSC
v. Magnaye, Jr., G.R. No. 183337, April 23, 2010).
Notice of termination must contain sufficient information to enable employee to prepare
defense.
While unsatisfactory conduct and want of capacity are valid causes that may be invoked for
dismissal from the service, the Memorandum terminating his employment did not specify the
acts constituting his want of capacity and unsatisfactory conduct. It merely stated that the
character investigation conducted during his probationary period showed that his employment
need not be necessary to be permanent in status.
This notice indisputably lacks the details of his unsatisfactory conduct or want of capacity.
Section VI, 2.2(b) of the Omnibus Guidelines on Appointments and other Personnel Actions
(CSC Memorandum Circular No. 38, Series of 1993, as amended by CSC Memorandum Circular
No. 12, Series of 1994), provides that the notice of termination shall contain sufficient
information which shall enable the employee to prepare an explanation.
Besides, Mayor Bendaas own assessment of Magnayes performance could not have served as
a sufficient basis to dismiss him because said mayor was not his immediate superior and did not
have daily contacts with him. Additionally, Mayor Bendaa terminated his employment less than
one and one-half months after his assumption to office. This is clearly a short period within
which to assess his performance. In the case of Miranda v. Carreon, G.R. No. 143540, April 11,
2003, 401 SCRA 303 (2003), it was held that:
The 1987 Constitution provides that no officer or employee of the civil service shall be
removed or suspended except for cause provided by law. Under the Revised Administrative
Code of 1987, a government officer or employee may be removed from the service on two (2)
grounds: (1) unsatisfactory conduct and (2) want of capacity. While the Code does not define
and delineate the concepts of these two grounds, however, the Civil Service Law (Presidential
Decree No. 807, as amended) provides specific grounds for dismissing a government officer or
employee from the service. Among these grounds are inefficiency and incompetence in the
performance of official duties. In the case at bar, respondents were dismissed on the ground
of poor performance. Poor performance falls within the concept of inefficiency and
incompetence in the performance of official duties which, as earlier mentioned, are grounds for
dismissing a government official or employee from the service.
But inefficiency or incompetence can only be determined after the passage of sufficient
time, hence, the probationary period of six (6) months for the respondents. Indeed, to be able to
gauge whether a subordinate is inefficient or incompetent requires enough time on the part of his
immediate superior within which to observe his performance. This condition, however, was not
observed in this case. x x x.
The CSC is the central personnel agency of the government exercising quasi-judicial functions.
(Sec. 1, Rule 43, Rules of Court). In cases filed before administrative or quasi-judicial bodies, a
fact may be deemed established if it is supported by substantial evidence, or that amount of
relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.
(Rule 133, Sec. 5, Rules of Court). The standard of substantial evidence is satisfied when, on the
basis of the evidence on record, there is reasonable ground to believe that the person terminated
was evidently wanting in capacity and had unsatisfactory conduct. In this case, the evidence
against Magnaye was woefully inadequate.
Political Law
BILL OF RIGHTS : PRESUMPTION OF INNOCENCE
Q In a case for violation of the Dangerous Drugs Act, the prosecutors lone witness, SPO4
Mendoza, testified that, from a distance, he saw Zafra and MArcelino holding shabu by
their bare hands, respectively, while Daluz was holding an aluminum foil and a disposable
lighter. Seeing this illegal activity, he single-handedly apprehended them. He grabbed the
shabu from the hands of Zafra and Marcelino, and confiscated the drug paraphernalia
from Daluz.
He was the lone arresting officer, who brought the petitioners to the police station,
who himself marked the confiscated pieces of evidence sans witnesses, photographs, media,
and in the absence of the petitioners. His colleagues were nowhere. And, worse, he was the
same person who took custody of the same pieces of evidence, then, brought them on his
own to the crime laboratory for testing. No inventory was ever done, no inventory was
presented in court. Can he be convicted of the crime? Why?
Answer: No, because of the failure to comply with the claim of custody rule. Prosecutions for
illegal possession of prohibited drugs necessitates that the elemental act of possession of a
prohibited substance be established with moral certainty. The dangerous drug itself constitutes
the very corpus delicti of the offense and the fact of its existence is vital to a judgment of
conviction. Essential therefore in these cases is that the identity of the prohibited drug be
established beyond doubt. Be that as it may, the mere fact of unauthorized possession will not
suffice to create in a reasonable mind the moral certainty required to sustain a finding of
guilt. More than just the fact of possession, the fact that the substance illegally possessed in the
first place is the same substance offered in court as exhibit must also be established with the
same unwavering exactitude as that requisite to make a finding of guilt. The chain of custody
requirement performs this function in that it ensures that unnecessary doubts concerning the
identity of the evidence are removed.
As a method of authenticating evidence, the chain of custody rule requires that the admission of
an exhibit be preceded by evidence sufficient to support a finding that the matter in question is
what the proponent claims it to be. It would include testimony about every link in the chain, from
the moment the item was picked up to the time it is offered into evidence, in such a way that
every person who touched the exhibit would describe how and from whom it was received,
where it was and what happened to it while in the witness possession, the condition in which it
was received and the condition in which it was delivered to the next link in the chain. These
witnesses would then describe the precautions taken to ensure that there had been no change in
the condition of the item and no opportunity for someone not in the chain to have possession of
the same. (Zafra v. People, G.R. No. 190749, April 25, 2012, Perez, J).
In People v. Salonga, G.R. No. 186390, October 2, 2009, 602 SCRA 783, accused was acquitted
for the failure of the police to inventory and photograph the confiscated items. The Court also
reversed a conviction in People v. Gutierrez, G.R. No. 179213, September 3, 2009, 589 SCRA
92, for the failure of the buy-bust team to inventory and photograph the seized items without
justifiable grounds. People v. Cantalejo also resulted in an acquittal because no inventory or
photograph was ever made by the police. (G.R. No. 182790, April 24, 2009, 586 SCRA 777;
People v. Capuno, G.R. No. 185715, January 19, 2011; People v. Lorena, G.R. No. 184954,
January 10, 2011 and People v. Martinez, G.R. No. 191366, December 13, 2011).
Non-compliance with chain of custody rule does not necessarily seizure and custody of
items void.
Lest the chain of custody rule be misunderstood, we reiterate that non-compliance with the
prescribed procedural requirements does not necessarily render the seizure and custody of the
items void and invalid; the seizure may still be held valid, provided that (a) there is a justifiable
ground for the non-compliance, and (b) the integrity and evidentiary value of the seized items are
shown to have been properly preserved. These conditions, however, were not met in the present
case as the prosecution did not even attempt to offer any justification for the failure of SPO4
Mendoza to follow the prescribed procedures in the handling of the seized items. As we held
in People v. De Guzman, the failure to follow the procedure mandated under RA No. 9165 and
its Implementing Rules and Regulations must be adequately explained. The justifiable ground
for the non-compliance must be proven as a fact. The Court cannot presume what these grounds
are or that they even exist.
In our constitutional system, basic and elementary is the presupposition that the burden of
proving the guilt of an accused lies on the prosecution which must rely on the strength of its own
evidence and not on the weakness of the defense. The rule is invariable whatever may be the
reputation of the accused, for the law presumes his innocence unless and until the contrary is
shown. In dubio pro reo. When moral certainty as to culpability hangs in the balance, acquittal
on reasonable doubt inevitably becomes a matter of right.
Note:
While, it is hornbook doctrine that the evaluation of the trial court on the credibility of the
witness and the testimony is entitled to great weight and is generally not disturbed upon
appeal, such rule does not apply when the trial court has overlooked, misapprehended, or
misapplied any fact of weight or substance.
It is noteworthy, however, that presumption of regularity in the performance of official functions
cannot by its lonesome overcome the constitutional presumption of innocence. (Malillin v.
People, G.R. No. 172593, April 30, 2008, 553 SCRA 619). Evidence of guilt beyond reasonable
doubt and nothing else can eclipse the hypothesis of guiltlessness. And this burden is met not by
bestowing distrust on the innocence of the accused but by obliterating all doubts as to his
culpability. (Malillin v. People).
Political Law
BILL OF RIGHTS : RIGHT TO COUNSEL
In investigation in aid of legislation, witness is not entitled to counsel.
Q There was an investigation in aid of legislation. Witnesses were required to appear. Are
they entitled to counsel? Explain.
Answer: No. The Senate or the House of Representatives or any of its respective committees
may conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by such inquiries shall be respected.
The Court explained that such conferral of the legislative power of inquiry upon any
committee of Congress, in this case the respondents Senate Committees, must carry with it all
powers necessary and proper for its effective discharge.
The right to be assisted by counsel can only be invoked by a person under custodial investigation
suspected for the commission of a crime, and therefore attaches only during such custodial
investigation. (People v. Amestuzo, et al., G.R. No. 104383, July 12, 2001, 361 SCRA
184). Since petitioners were invited to the public hearings as resource persons, they cannot
therefore validly invoke their right to counsel. (Philcomsat Holdings Corp., et al. v. Senate of the
Phils., et al., G.R. No. 180308, June 19, 2012).
Political Law
COMMISSION ON ELECTIONS (COMELEC)
Q COMELEC Resolution No. 9266 approved the creation of a committee jointly with the
DOJ which shall conduct preliminary investigation on the alleged election offenses and
anomalies committed during the 2004 & 2007 elections. Petitioners questioned the validity
of the creation of the Committee alleging that it violated the equal protection clause. They
contended that the Committee targeted only the Arroyo Administration. The respondents
contended that the investigation has a wide array of the possible election offenses and
broad spectrum of individuals who may have committed them, not only the officials of the
Arroyo Administration. Rule on the contention. Explain.
Answer: The contention is not correct, because not all the respondents were linked to the Arroyo
Administration. Private individuals were also subjected to the investigation by the Joint
Committee.
The concept of equal protection has been laid down in Biraogo v. Philippine Truth Commission
of 2010 where it was said:
The equal protection of the laws is embraced in the concept of due process, as every unfair
discrimination offends the requirements of justice and fair play. It has been embodied in a
separate clause, however, to provide for a more specific guaranty against any form of undue
favoritism or hostility from the government. Arbitrariness in general may be challenged on the
basis of the due process clause. But if the particular act assailed partakes of an unwarranted
partiality or prejudice, the sharper weapon to cut it down is the equal protection clause. (Biraogo
v. Phil. Truth Commission, G.R. Nos. 192935 & 193036, December 7, 2010, 637 SCRA 78).
Equal protection simply requires that all persons or things similarly situated should be treated
alike, both as to rights conferred and responsibilities imposed. It requires public bodies and
institutions to treat similarly-situated individuals in a similar manner. The purpose of the equal
protection clause is to secure every person within a states jurisdiction against intentional and
arbitrary discrimination, whether occasioned by the express terms of a statute or by its improper
execution through the states duly-constituted authorities. In other words, the concept of equal
justice under the law requires the state to govern impartially, and it may not draw distinctions
between individuals solely on differences that are irrelevant to a legitimate governmental
objective. (Biraogo v. PTC, supra.; Arroyo v. DOJ, et al., G.R. No. 199082 & companion cases,
September 18, 2011).
The equal protection guarantee exists to prevent undue favor or privilege. It is intended to
eliminate discrimination and oppression based on inequality. Recognizing the existence of real
differences among men, it does not demand absolute equality. It merely requires that all persons
under like circumstances and conditions shall be treated alike both as to privileges conferred and
liabilities enforced. (Santos v. People, G.R. No. 173176, April 26, 2008, 563 SCRA 341).
We once held that the Office of the Ombudsman is granted virtually plenary investigatory
powers by the Constitution and by law and thus may, for every particular investigation, whether
commenced by complaint or on its own initiative, decide how best to pursue each investigation.
Since the Office of the Ombudsman is granted such latitude, its varying treatment of similarly
situated investigations cannot by itself be considered a violation of any of the parties rights to
the equal protection of the laws. (Dimayuga v. Office of the Ombudsman, G.R. No. 129099, July
20, 2008). This same doctrine should likewise apply in the present case.
Thus, as the constitutional body granted with the broad power of enforcing and administering all
laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and
recall, and tasked to ensure free, orderly, honest, peaceful, and credible elections, the Comelec
has the authority to determine how best to perform such constitutional mandate. Pursuant to this
authority, the Comelec issues various resolutions prior to every local or national elections setting
forth the guidelines to be observed in the conduct of the elections. This shows that every election
is distinct and requires different guidelines in order to ensure that the rules are updated to
respond to existing circumstances. (Arroyo v. DOJ, et al., G.R. No. 199082 & companion cases,
September 18, 2012).
Q Petitioners claimed that the Joint Panel does not possess the required cold neutrality of
an impartial judge because it is all at once the evidence- gatherer, prosecutor and judge.
They explained that since the Fact-Finding Team has found probable cause to subject
them to preliminary investigation, it is impossible for the Joint Committee to arrive at an
opposite conclusion. Petitioners likewise expressed doubts of any possibility that the Joint
Committee will be fair and impartial to them as Secretary De Lima and Chairman
Brillantes had repeatedly expressed prejudgment against petitioners through their
statements captured by the media.
For their part, respondents contended that assuming that said statements were made, there
was no showing that Secretary De Lima had tried to intervene in the investigation to
influence its outcome nor was it proven that the Joint Committee itself had prejudged the
case. Is the contention correct?
Answer: No. It is settled that the conduct of preliminary investigation is, like court proceedings,
subject to the requirements of both substantive and procedural due process. Preliminary
investigation is considered as a judicial proceeding wherein the prosecutor or investigating
officer, by the nature of his functions, acts as a quasi-judicial officer. The authority of a
prosecutor or investigating officer duly empowered to preside over or to conduct a preliminary
investigation is no less than that of a municipal judge or even an RTC Judge. Thus, as
emphasized by the Court in Ladlad v. Velasco:
x x x We cannot emphasize too strongly that prosecutors should not allow, and should avoid,
giving the impression that their noble office is being used or prostituted, wittingly or unwittingly,
for political ends, or other purposes alien to, or subversive of, the basic and fundamental
objective of serving the interest of justice evenhandedly, without fear or favor to any and all
litigants alike, whether rich or poor, weak or strong, powerless or mighty. Only by strict
adherence to the established procedure may publics perception of the impartiality of the
prosecutor be enhanced.
In this case, as correctly pointed out by respondents, there was no showing that the statements
claimed to have prejudged the case against petitioners were made by Secretary De Lima and
Chairman Brillantes or were in the prejudicial context in which petitioners claimed the
statements were made. A reading of the statements allegedly made by them reveals that they
were just responding to hypothetical questions in the event that probable cause would eventually
be found by the Joint Committee.
More importantly, there was no proof or even an allegation that the Joint Committee itself,
tasked to conduct the requisite preliminary investigation against petitioners, made biased
statements that would convey to the public that the members were favoring a particular party.
Neither did the petitioners show that the President of the Philippines, the Secretary of Justice or
the Chairman of the Comelec intervened in the conduct of the preliminary investigation or
exerted undue pressure on their subordinates to tailor their decision with their public declarations
and adhere to a predetermined result. Moreover, insofar as the Comelec is concerned, it must be
emphasized that the constitutional body is collegial. The act of the head of a collegial body
cannot be considered as that of the entire body itself. In equating the alleged bias of the above-
named officials with that of the Joint Committee, there would be no arm of the government
credible enough to conduct a preliminary investigation. (Santos-Cancio v. DOJ, G.R. No.
175057, January 28, 2008, 543 SCRA 70; Arroyo v. DOJ, et al., G.R. No. 199082 & companion
cases, September 18, 2012).
Q Petitioners claimed that the Joint Panel is a new public office as shown by its
composition, the creation of its own Rules of Procedure, and the source of funding for its
operation. It is their position that the power of the DOJ to investigate the commission of
crimes and the Comelecs constitutional mandate to investigate and prosecute violations of
election laws do not include the power to create a new public office in the guise of a joint
committee. Thus, in creating the Joint Panel, the DOJ and the Comelec encroached upon
the power of the Legislature to create public office.
Respondents contended that the Joint Committee and Fact-Finding Team are not new
public offices, but merely collaborations between two existing government agencies sharing
concurrent jurisdiction. This is shown by the fact that the members of the Joint Panel are
existing officers of the DOJ and the Comelec who exercise duties and functions that are
already vested in them. Whose contention is correct? Why?
Answer: The contention of the petitioners is not correct. The Comelec is granted the power to
investigate, and where appropriate, prosecute cases of election offenses. This is necessary in
ensuring free, orderly, honest, peaceful and credible elections. On the other hand, the DOJ is
mandated to administer the criminal justice system in accordance with the accepted processes
thereof consisting in the investigation of the crimes, prosecution of offenders and administration
of the correctional system. It is specifically empowered to investigate the commission of
crimes, prosecute offenders and administer the probation and correction system.Also, the
provincial or city prosecutors and their assistants, as well as the national and regional state
prosecutors, are specifically named as the officers authorized to conduct preliminary
investigation. Recently, the Comelec, through its duly authorized legal offices, is given the
power, concurrent with the other prosecuting arms of the government such as the DOJ, to
conduct preliminary investigation of all election offenses.
Undoubtedly, it is the Constitution, statutes, and the Rules of Court and not the assailed Joint
Order which give the DOJ and the Comelec the power to conduct preliminary investigation. No
new power is given to them by virtue of the assailed order. As to the members of the Joint
Committee and Fact-Finding Team, they perform such functions that they already perform by
virtue of their current positions as prosecutors of the DOJ and legal officers of the Comelec.
Thus, in no way can we consider the Joint Committee as a new public office. (Arroyo v. DOJ,
et al. & companion cases, G.R. No. 199082, September 18, 2012).
Q Petitioners claimed that in creating the Joint Panel, the Comelec has effectively
abdicated its constitutional mandate to investigate and, where appropriate, to prosecute
cases of violation of election laws including acts or omissions constituting election frauds,
offenses, and malpractices in favor of the Executive Department acting through the DOJ
Secretary. Under the set-up, the Comelec personnel is placed under the supervision and
control of the DOJ. The chairperson is a DOJ official. Thus, the Comelec has willingly
surrendered its independence to the DOJ and has acceded to share its exercise of judgment
and discretion with the Executive Branch. Is the contention correct? Explain.
Answer: No. Section 1, Article IX-A of the 1987 Constitution expressly describes all the
Constitutional Commissions as independent. Although essentially executive in nature, they are
not under the control of the President of the Philippines in the discharge of their respective
functions. The Constitution envisions a truly independent Comelec committed to ensure free,
orderly, honest, peaceful, and credible elections and to serve as the guardian of the peoples
sacred right of suffrage the citizenrys vital weapon in effecting a peaceful change of
government and in achieving and promoting political stability.
Prior to the amendment of Section 265 of the Omnibus Election Code, the Comelec had the
exclusive authority to investigate and prosecute election offenses. In the discharge of this
exclusive power, the Comelec was given the right to avail and, in fact, availed of the assistance
of other prosecuting arms of the government such as the prosecutors of the DOJ. By virtue of this
continuing authority, the state prosecutors and the provincial or city prosecutors were authorized
to receive the complaint for election offense and delegate the conduct of investigation to any of
their assistants. The investigating prosecutor, in turn, would make a recommendation either to
dismiss the complaint or to file the information. This recommendation is subject to the approval
of the state, provincial or city prosecutor, who himself may file the information with the proper
court if he finds sufficient cause to do so, subject, however, to the accuseds right to appeal to the
Comelec. (Arroyo v. DOJ, et al., G.R. No. 199082, September 18, 2012).
Moreover, during the past national and local elections, the Comelec issued Resolutions
requesting the Secretary of Justice to assign prosecutors as members of Special Task Forces to
assist the Comelec in the investigation and prosecution of election offenses. These Special Task
Forces were created because of the need for additional lawyers to handle the investigation and
prosecution of election offenses.
Clearly, the Comelec recognizes the need to delegate to the prosecutors the power to conduct
preliminary investigation. Otherwise, the prompt resolution of alleged election offenses will not
be attained. This delegation of power, otherwise known as deputation, has long been recognized
and, in fact, been utilized as an effective means of disposing of various election offense cases.
Apparently, as mere deputies, the prosecutors played a vital role in the conduct of preliminary
investigation, in the resolution of complaints filed before them, and in the filing of the
informations with the proper court.
As pointed out by the Court in Barangay Association for National Advancement and
Transparency (BANAT) Party-List v. Commission on Elections, the grant of exclusive power to
investigate and prosecute cases of election offenses to the Comelec was not by virtue of the
Constitution but by the Omnibus Election Code which was eventually amended by Section 43 of
R.A. 9369. Thus, the DOJ now conducts preliminary investigation of election offenses
concurrently with the Comelec and no longer as mere deputies. If the prosecutors had been
allowed to conduct preliminary investigation and file the necessary information by virtue only of
a delegated authority, they now have better grounds to perform such function by virtue of the
statutory grant of authority. If deputation was justified because of lack of funds and legal officers
to ensure prompt and fair investigation and prosecution of election offenses, the same
justification should be cited to justify the grant to the other prosecuting arms of the government
of such concurrent jurisdiction.
In view of the foregoing disquisition, we find no impediment for the creation of a Joint
Committee. While the composition of the Joint Committee and Fact-Finding Team is dominated
by DOJ officials, it does not necessarily follow that the Comelec is inferior. Under the Joint
Order, resolutions of the Joint Committee finding probable cause for election offenses shall still
be approved by the Comelec in accordance with the Comelec Rules of Procedure. This shows
that the Comelec, though it acts jointly with the DOJ, remains in control of the proceedings. In
no way can we say that the Comelec has thereby abdicated its independence to the executive
department.
The text and intent of the constitutional provision granting the Comelec the authority to
investigate and prosecute election offenses is to give the Comelec all the necessary and
incidental powers for it to achieve the objective of holding free, orderly, honest, peaceful, and
credible elections. The Comelec should be allowed considerable latitude in devising means and
methods that will insure the accomplishment of the great objective for which it was created. We
may not agree fully with its choice of means, but unless these are clearly illegal or constitute
gross abuse of discretion, this Court should not interfere. Thus, Comelec Resolution No. 9266,
approving the creation of the Joint Committee and Fact-Finding Team, should be viewed not as
an abdication of the constitutional bodys independence but as a means to fulfill its duty of
ensuring the prompt investigation and prosecution of election offenses as an adjunct of its
mandate of ensuring a free, orderly, honest, peaceful and credible elections.
Although it belongs to the executive department, as the agency tasked to investigate crimes,
prosecute offenders, and administer the correctional system, the DOJ is likewise not barred from
acting jointly with the Comelec. It must be emphasized that the DOJ and the Comelec exercise
concurrent jurisdiction in conducting preliminary investigation of election offenses. The doctrine
of concurrent jurisdiction means equal jurisdiction to deal with the same subject matter. Contrary
to the contention of the petitioners, there is no prohibition on simultaneous exercise of power
between two coordinate bodies. What is prohibited is the situation where one files a complaint
against a respondent initially with one office (such as the Comelec) for preliminary investigation
which was immediately acted upon by said officeand the re-filing of substantially the same
complaint with another office (such as the DOJ). The subsequent assumption of jurisdiction by
the second office over the cases filed will not be allowed. Indeed, it is a settled rule that the body
or agency that first takes cognizance of the complaint shall exercise jurisdiction to the exclusion
of the others. As cogently held by the Court in Department of Justice v. Hon. Liwag:
To allow the same complaint to be filed successively before two or more investigative bodies
would promote multiplicity of proceedings. It would also cause undue difficulties to the
respondent who would have to
appear and defend his position before every agency or body where the same complaint was filed.
This would lead hapless litigants at a loss as to where to appear and plead their cause or defense.
There is yet another undesirable consequence. There is the distinct possibility that the two bodies
exercising jurisdiction at the same time would come up with conflicting resolutions regarding the
guilt of the respondents.
Finally, the second investigation would entail an unnecessary expenditure of public funds, and
the use of valuable and limited resources of Government, in a duplication of proceedings already
started with the Ombudsman. (Arroyo v. DOJ, et al., G.R. No. 199082, September 18, 2012).
Political Law
ELECTION/LGU
Candidate convicted of robbery is disqualified to run; petition for cancellation of COC is
the remedy.
Q Dominador Jalosjos, Jr. filed his certificate of candidacy for Mayor of the City of
Dapitan, Zamboanga del Sur for the 2010 elections. His opponent Agapito Cardino filed a
petition to deny due course and cancel his COC due to a false material misrepresentation in
his certificate when he declared under oath that he was eligible when he has been convicted
of the crime of robbery and sentenced to prison mayor by the RTC. Jalosjos contended that
he was granted probation where the COMELEC found out that the certificate of
compliance with the requirement was fraudulently issued. He has not yet served his
sentence. The penalty of prision mayor carries with it perpetual special disqualification to
hold public office. Is the COMELECs ruling correct? Why?
Answer: Yes. The COMELEC properly cancelled Jalosjos certificate of candidacy. A void
certificate of candidacy on the ground of ineligibility that exited at the time of the filing of the
certificate of candidacy can never give rise to a valid candidacy, and much less to valid votes.
Jalosjos certificate of candidacy was cancelled because he was ineligible from the start to run
for Mayor. Whether his certificate of candidacy is cancelled before or after the election is
immaterial because the cancellation on such ground means he was never a valid candidate from
the very beginning, his certificate of candidacy being void ab initio. Jalosjos ineligibility existed
on the day he filed his certificate of candidacy, and the cancellation of his certificate of
candidacy retroacted to the day he filed it. Thus, Cardino ran unopposed. There was only one
qualified candidate for Mayor in the May 2010 elections -- Cardino who received the highest
number of votes.
Section 74 requires the candidate to state under oath in his certificate of candidacy "that he is
eligible for said office." A candidate is eligible if he has a right to run for the public office. If a
candidate is not actually eligible because he is barred by final judgment in a criminal case from
running for public office, and he still states under oath in his certificate of candidacy that he is
eligible to run for public office, then the candidate clearly makes a false material representation
that is a ground for a petition under Section 78. (Jalosjos, Jr. v. COMELEC, et al., G.R. No.
193237; Cardino v. Jalosjos, et al., G.R. No. 193237, October 9, 2012).
Note:
A sentence of prisin mayor by final judgment is a ground for disqualification under Section 40
of the Local Government Code and under Section 12 of the Omnibus Election Code. It is also a
material fact involving the eligibility of a candidate under Sections 74 and 78 of the Omnibus
Election Code. Thus, a person can file a petition under Section 40 of the Local Government Code
or under either Section 12 or Section 78 of the Omnibus Election Code. The pertinent provisions
read:
Section 40, Local Government Code:
Sec. 40. Disqualifications. - The following persons are disqualified from running for any elective
local position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by
one (1) year or more of imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or non-political cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue
to avail of the same right after the effectivity of this Code; and
(g) The insane or feeble-minded.
Section 12, Omnibus Election Code:
Sec. 12. Disqualifications. Any person who has been declared by competent authority insane
or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion
or for any offense for which he was sentenced to a penalty of more than eighteen months or for a
crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office,
unless he has been given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed removed upon the
declaration by competent authority that said insanity or incompetence had been removed or after
the expiration of a period of five years from his service of sentence, unless within the same
period he again becomes disqualified.
Section 68, Omnibus Election Code:
Sec. 68. Disqualifications. Any candidate who, in an action or protest in which he is a party is
declared by final decision by a competent court guilty of, or found by the Commission of having
(a) given money or other material consideration to influence, induce or corrupt the voters or
public officials performing electoral functions; (b) committed acts of terrorism to enhance his
candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code;
(d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and
104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-
paragraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from
holding the office. Any person who is a permanent resident of or an immigrant to a foreign
country shall not be qualified to run for any elective office under this Code, unless said person
has waived his status as permanent resident or immigrant of a foreign country in accordance with
the residence requirement provided for in the election laws.
Revised Penal Code:
Art. 27. Reclusion perpetua. x x x
Prisin mayor and temporary disqualification. The duration of the penalties of prisin mayor
and temporary disqualification shall be from six years and one day to twelve years, except when
the penalty of disqualification is imposed as an accessory penalty, in which case, it shall be that
of the principal penalty.
x x x x
Art. 30. Effects of the penalties of perpetual or temporary absolute disqualification. The
penalties of perpetual or temporary absolute disqualification for public office shall produce the
following effects:
1. The deprivation of the public offices and employments which the offender may have held,
even if conferred by popular election.
2. The deprivation of the right to vote in any election for any popular elective office or to be
elected to such office.
3. The disqualification for the offices or public employments and for the exercise of any of the
rights mentioned.
In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and 3
of this article shall last during the term of the sentence.
4. The loss of all rights to retirement pay or other pension for any office formerly held.
Art. 31. Effects of the penalties of perpetual or temporary special disqualification. The
penalties of perpetual or temporary special disqualification for public office, profession or
calling shall produce the following effects:
1. The deprivation of the office, employment, profession or calling affected.
2. The disqualification for holding similar offices or employments either perpetually or during
the term of the sentence, according to the extent of such disqualification.
Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise
of the right of suffrage. The perpetual or temporary special disqualification for the exercise of
the right of suffrage shall deprive the offender perpetually or during the term of the sentence,
according to the nature of said penalty, of the right to vote in any popular election for any public
office or to be elected to such office. Moreover, the offender shall not be permitted to hold any
public office during the period of his disqualification.
Art. 42. Prisin mayor its accessory penalties. The penalty of prisin mayor shall carry
with it that of temporary absolute disqualification and that of perpetual special disqualification
from the right of suffrage which the offender shall suffer although pardoned as to the principal
penalty, unless the same shall have been expressly remitted in the pardon. (Emphasis supplied)
The penalty of prisin mayor automatically carries with it, by operation of law, the accessory
penalties of temporary absolute disqualification and perpetual special disqualification. Under
Article 30 of the Revised Penal Code, temporary absolute disqualification produces the effect of
"deprivation of the right to vote in any election for any popular elective office or to be elected to
such office." The duration of the temporary absolute disqualification is the same as that of the
principal penalty. On the other hand, under Article 32 of the Revised Penal Code perpetual
special disqualification means that "the offender shall not be permitted to hold any public office
during the period of his disqualification," which is perpetually. Both temporary absolute
disqualification and perpetual special disqualification constitute ineligibilities to hold elective
public office. A person suffering from these ineligibilities is ineligible to run for elective public
office, and commits a false material representation if he states in his certificate of candidacy that
he is eligible to so run.
In Lacuna v. Abes, the Court, speaking through Justice J.B.L. Reyes, explained the import of the
accessory penalty of perpetual special disqualification:
On the first defense of respondent-appellee Abes, it must be remembered that appellees
conviction of a crime penalized with prisin mayor which carried the accessory penalties of
temporary absolute disqualification and perpetual special disqualification from the right of
suffrage (Article 42, Revised Penal Code); and Section 99 of the Revised Election Code
disqualifies a person from voting if he had been sentenced by final judgment to suffer one year
or more of imprisonment.
The accessory penalty of temporary absolute disqualification disqualifies the convict for public
office and for the right to vote, such disqualification to last only during the term of the sentence
(Article 27, paragraph 3, & Article 30, Revised Penal Code) that, in the case of Abes, would
have expired on 13 October 1961.
But this does not hold true with respect to the other accessory penalty of perpetual special
disqualification for the exercise of the right of suffrage. This accessory penalty deprives the
convict of the right to vote or to be elected to or hold public office perpetually, as distinguished
from temporary special disqualification, which lasts during the term of the sentence. Article 32,
Revised Penal Code, provides:
Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise
of the right of suffrage. The perpetual or temporary special disqualification for the exercise of
the right of suffrage shall deprive the offender perpetually or during the term of the sentence,
according to the nature of said penalty, of the right to vote in any popular election for any public
office or to be elected to such office. Moreover, the offender shall not be permitted to hold any
public office during the period of disqualification.
The word "perpetually" and the phrase "during the term of the sentence" should be applied
distributively to their respective antecedents; thus, the word "perpetually" refers to the perpetual
kind of special disqualification, while the phrase "during the term of the sentence" refers to the
temporary special disqualification. The duration between the perpetual and the temporary (both
special) are necessarily different because the provision, instead of merging their durations into
one period, states that such duration is "according to the nature of said penalty" which means
according to whether the penalty is the perpetual or the temporary special disqualification.
(Emphasis supplied)
Clearly, Lacuna instructs that the accessory penalty of perpetual special disqualification
"deprives the convict of the right to vote or to be elected to or hold public office perpetually."
Immediate effect of accessory perpetual disqualification.
The accessory penalty of perpetual special disqualification takes effect immediately once the
judgment of conviction becomes final. The effectivity of this accessory penalty does not depend
on the duration of the principal penalty, or on whether the convict serves his jail sentence or not.
The last sentence of Article 32 states that "the offender shall not be permitted to hold any public
office during the period of his perpetual special disqualification." Once the judgment of
conviction becomes final, it is immediately executory. Any public office that the convict may be
holding at the time of his conviction becomes vacant upon finality of the judgment, and the
convict becomes ineligible to run for any elective public office perpetually. In the case of
Jalosjos, he became ineligible perpetually to hold, or to run for, any elective public office from
the time his judgment of conviction became final.
Perpetual special disqualification is a ground for a petition under Section 78 of the Omnibus
Election Code because this accessory penalty is an ineligibility, which means that the convict is
not eligible to run for public office, contrary to the statement that Section 74 requires him to state
under oath. As used in Section 74, the word "eligible" means having the right to run for elective
public office, that is, having all the qualifications and none of the ineligibilities to run for public
office. As this Court held in Fermin v. Commission on Elections,
17
the false material
representation may refer to "qualifications or eligibility." One who suffers from perpetual special
disqualification is ineligible to run for public office. If a person suffering from perpetual special
disqualification files a certificate of candidacy stating under oath that "he is eligible to run for
(public) office," as expressly required under Section 74, then he clearly makes a false material
representation that is a ground for a petition under Section 78. As this Court explained in Fermin:
Lest it be misunderstood, 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 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, the Court has
already likened a proceeding under Section 78 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.
Q Is conviction of the crime of robbery which carries a penalty of prision mayor to which
perpetual special disqualification attaches by operation of law a ground for disqualification
of a candidate under Sec. 68 of the Omnibus Election Code? Explain.
Answer: No. Conviction for robbery by final judgment with the penalty of prisin mayor, to
which perpetual special disqualification attaches by operation of law, is not a ground for a
petition under Section 68 because robbery is not one of the offenses enumerated in Section 68.
Insofar as crimes are concerned, Section 68 refers only to election offenses under the Omnibus
Election Code and not to crimes under the Revised Penal Code.
There is absolutely nothing in the language of Section 68 that will justify including the crime of
robbery as one of the offenses enumerated in this Section. All the offenses enumerated in Section
68 refer to offenses under the Omnibus Election Code.
In Codilla, Sr. v. de Venecia, the Court declared that the jurisdiction of the COMELEC to
disqualify candidates is limited to those enumerated in Section 68 of the Omnibus Election Code.
All other election offenses are beyond the ambit of COMELEC jurisdiction. They are criminal
and not administrative in nature. (442 Phil. 139 (2002); Jalosjos, Jr. v. COMELEC, Cardino v.
Jalosjos, Jr., G.R. No. 193237, October 9, 2012).
A candidate for mayor during the 2010 local elections certifies under oath four statements: (1) a
statement that the candidate is a natural born or naturalized Filipino citizen; (2) a statement that
the candidate is not a permanent resident of, or immigrant to, a foreign country; (3) a statement
that the candidate is eligible for the office he seeks election; and (4) a statement of the
candidates allegiance to the Constitution of the Republic of the Philippines.
Q Despite the cancellation of the certificate of candidacy of Jalosjos, Jr., he obtained the
highest number of votes. Cardino was the second placer. Can Cardino be proclaimed as the
winner? Why?
Answer: Yes. The rule that the second-placer cannot be proclaimed winner if the first-placer is
disqualified or declared ineligible should be limited to situations where the certificate of
candidacy of the first-placer was valid at the time of filing but subsequently had to be cancelled
because of a violation of law that took place, or a legal impediment that took effect, after the
filing of the certificate of candidacy. If the certificate of candidacy is void ab initio, then legally
the person who filed such void certificate of candidacy was never a candidate in the elections at
any time. All votes for such non-candidate are stray votes and should not be counted. Thus, such
non-candidate can never be a first-placer in the elections. If a certificate of candidacy void ab
initio is cancelled on the day, or before the day, of the election, prevailing jurisprudence holds
that all votes for that candidate are stray votes. If a certificate of candidacy void ab initio is
cancelled one day or more after the elections, all votes for such candidate should also be stray
votes because the certificate of candidacy is void from the very beginning. This is the more
equitable and logical approach on the effect of the cancellation of a certificate of candidacy that
is void ab initio. Otherwise, a certificate of candidacy void ab initio can operate to defeat one or
more valid certificates of candidacy for the same position. (Jalosjos, Jr. v. COMELEC, Cardino
v. Jalosjos, Jr., G.R. No. 193237, October 9, 2012).
Duty of COMELEC to cancel COC even without petition.
Even without a petition under either Section 12 or Section 78 of the Omnibus Election Code, or
under Section 40 of the Local Government Code, the COMELEC is under a legal duty to cancel
the certificate of candidacy of anyone suffering from the accessory penalty of perpetual special
disqualification to run for public office by virtue of a final judgment of conviction. The final
judgment of conviction is notice to the COMELEC of the disqualification of the convict from
running for public office. The law itself bars the convict from running for public office, and the
disqualification is part of the final judgment of conviction. The final judgment of the court is
addressed not only to the Executive branch, but also to other government agencies tasked to
implement the final judgment under the law.
Whether or not the COMELEC is expressly mentioned in the judgment to implement the
disqualification, it is assumed that the portion of the final judgment on disqualification to run for
elective public office is addressed to the COMELEC because under the Constitution the
COMELEC is duty bound to "enforce and administer all laws and regulations relative to the
conduct of an election." (Art. IX-C, Sec. 2(1), Constitution)). The disqualification of a convict to
run for public office under the Revised Penal Code, as affirmed by final judgment of a competent
court, is part of the enforcement and administration of "all laws" relating to the conduct of
elections.
To allow the COMELEC to wait for a person to file a petition to cancel the certificate of
candidacy of one suffering from perpetual special disqualification will result in the anomaly that
these cases so grotesquely exemplify. Despite a prior perpetual special disqualification, Jalosjos
was elected and served twice as mayor. The COMELEC will be grossly remiss in its
constitutional duty to "enforce and administer all laws" relating to the conduct of elections if it
does not motu proprio bar from running for public office those suffering from perpetual special
disqualification by virtue of a final judgment. (Jalosjos, Jr. v. COMELEC, Cardino v. Jalosjos,
Jr., G.R. No. 193237, October 9, 2012).
Votes of nuisance candidate is counted for the legitimate candidate.
Q If the name of a nuisance candidate whose certificate of candidacy was still included or
printed in the official ballot on election day, should the votes cast for such nuisance
candidate be considered stray or counted in favor of the bona fide candidate? Explain.
Answer: It is counted in favor of the bona fide candidate because the votes cast could have been
intended only for the legitimate candidate. The possibility of confusion in names of candidates if
the name of the nuisance candidate remained on the ballots on election day, cannot be discounted
or eliminated even under the automated voting system especially considering that voters
mistakenly shaded the oval beside the name of the nuisance candidate instead of the bona fide
candidate they intended to vote for could no longer ask for replacement ballots to correct the
same. (Dela Cruz v. COMELEC, et al., G.R. No. 192221, November 13, 2012, Villarama, J).
Petition for mandamus to compel COMELEC to disqualify a party-list is not the remedy;
petition for disqualification is the remedy.
Q A petition for mandamus was filed with the Court to compel the COMELEC to
disqualify Ang Galing Pinoy Party-List (AGPP) or to cancel AGPPs registration for
failure to comply with Sec. 6 of Res. No. 8807 which requires them to submit documentary
evidence to prove that the nominees truly belong to the marginalized and unrepresented
sectors. It was alleged that they have not complied with the rule, hence, the COMELEC
should disqualify them motu proprio which the COMELEC did not. Will the petition
prosper? Why?
Answer: No, because the appropriate remedy is to file a petition for disqualification against a
party-list nominee who commits any act declared by law to be grounds for disqualification. (Sec.
2, in relation to Sec. 4, Res. No. 8807). It should have been within five (5) days after the last day
of filing of the list of nominees or any day not later than the date of proclamation. Under Sec. 6
of RA 7941 any interested party may file a verified complaint for cancellation of registration of a
party-list organization if it violates or fails to comply with law, rules or regulations relating to
elections. Petitioners failed to comply with the condition that there be no plain, speedy and
adequate remedy in the ordinary course of law. (Sec. 3, Rule 65; Bello, et al. v. COMELEC,
G.R. No. 191998 & companion cases, December 7, 2010).
Q State the effect of the filing of the petition for mandamus despite the aforementioned
remedies that are available? Explain.
Answer: The petitioners violated the rule on the exhaustion of administrative remedies. The rule
on exhaustion of administrative remedies provides that a party must exhaust all administrative
remedies to give the administrative agency an opportunity to decide and thus prevent
unnecessary and premature resort to the courts. While this is not an ironclad rule as it admits of
exceptions, the mandamus petitioner failed to show that any of the exceptions apply. The filing
of a petition for mandamus premature. It bears stressing that mandamus, as an extraordinary
remedy, may be used only in cases of extreme necessity where the ordinary remedy, may be used
only in cases of extreme necessity where the ordinary forms of procedure are powerless to afford
relief. (Bello, et al. v. COMELEC, G.R. No. 191998 & other companion cases, December 7,
2010).
Political Law
EMINENT DOMAIN
RTC-SAC has original jurisdiction to determine just compensation.
Q What court has jurisdiction over all petitions for the determination of just
compensation payable to landowners under the land reform program? Explain.
Answer: The RTC-SAC (sitting as Special Agrarian Court) has original exclusive jurisdiction
(Sec. 57, RA 6657).
The RTC-SAC is not an appellate court that passes upon DARAB decisions determining just
compensation under the land reform program. As held in Republic v. Court of Appeals, 331
Phil. 1070 (1996), in the terminology of Section 57 [of RA 6657], the RTC, sitting as a Special
Agrarian Court, has original and exclusive jurisdiction over all petitions for the determination of
just compensation to landowners. It would subvert this original and exclusive jurisdiction of
the RTC for the DAR to vest original jurisdiction in compensation cases in administrative
officials and make the RTC an appellate court for the review of administrative decisions.
In Philippine Veterans Bank v. Court of Appeals, the Court where we likewise had the occasion
to outline the procedure for cases involving the determination of just compensation of lands
acquired under the CARP:
Under RA 6657, the Land Bank of the Philippines is charged with the preliminary determination
of the value of lands placed under land reform program and the compensation to be paid for their
taking. It initiates the acquisition of agricultural lands by notifying the landowner of the
governments intention to acquire his land and the valuation of the same as determined by the
Land Bank. Within 30 days from receipt of notice, the landowner shall inform the DAR of his
acceptance or rejection of the offer. In the event the landowner rejects the offer, a summary
administrative proceeding is held by the provincial (PARAD), the regional (RARAD) or the
central (DARAB) adjudicator, as the case may be, depending on the value of the land, for the
purpose of determining the compensation of the land. The landowner, the Land Bank, and other
interested parties are then required to submit evidence as to the just compensation for the land.
The DAR adjudicator decides the case within 30 days after it is submitted for decision. If the
landowner finds the price unsatisfactory, he may bring the matter directly to the appropriate
Regional Trial Court.
x x x
The jurisdiction of the Regional Courts is not any less original and exclusive because the
question is first passed upon by the DAR, as the judicial proceedings are not a continuation of
the administrative determination. For that matter, the law may provide that the decision of the
DAR is final and unappealable. Nevertheless, resort to courts cannot be foreclosed on the theory
that courts are the guarantors of the legality of administrative action. (Phil. Veterans Bank v. CA,
379 Phil. 141 (2000)).
Consequently, although the new rules speak of directly appealing the decision of adjudicators to
the RTC-SACs, the jurisdiction of these designated courts to determine just compensation under
Section 57 of RA 6657 is original and exclusive. Any effort to transfer this original jurisdiction
to the adjudicators and to confer appellate jurisdiction on the RTC-SACs would be contrary to
Section 57 and would result in void rulings. What adjudicators are empowered to do is only to
determine in a preliminary manner the reasonable compensation to be paid to landowners,
leaving to the courts the ultimate power to decide this question on the merits. (LBP v. Agustin C.
Dizon, G.R. No. 160394, November 27, 2009, Brion, J).
Compensation to be paid; basis.
Q In 1970, Napocor constructed high-tension transmission lines to implement the Davao-
Manat 138 KV Transmission Line Project traversing over a parcel of land belonging to the
respondents. When they demanded for payment, as they were not compensated for the
value of the land, Napocor contended that their claim for just compensation has already
prescribed pursuant to Sec. 3(i) of RA 6395 as amended by PD 380, 395, 758, 938, 1360 &
1443 prescribing a 5-year period to file any action. Is the contention correct? Why?
Answer: No. 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 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).
Q NAPOCOR contended that it should pay for only ten percent (10%) of the fair market
value of the landowners property because, under its Charter, it is only authorized to
acquire easements of right-of-way over agricultural lands. Is the contention correct? Why?
Answer: No. When Napocor takes private property to construct transmission lines, it is liable to
pay the full market value upon proper determination by the courts. (NPC v. Ong Co, G.R. No.
166973, February 10, 2009, 578 SCRA 234).
In National Power Corporation v. Gutierrez, 271 Phil. (1991), it was likewise argued that it
should only be made to pay easement fees instead of the full market value of the land traversed
by its transmission lines. In striking down its argument and ruling that the property owners were
entitled to the full market value of the land in question, it was ruled that:
x x x While it is true that plaintiff [is] only after a right-of-way easement, it nevertheless
perpetually deprives defendants of their proprietary rights as manifested by the imposition by the
plaintiff upon defendants that below said transmission lines no plant higher than three (3) meters
is allowed. Furthermore, because of the high-tension current conveyed through said transmission
lines, danger to life and limbs that may be caused beneath said wires cannot altogether be
discounted, and to cap it all, plaintiff only pays the fee to defendants once, while the latter shall
continually pay the taxes due on said affected portion of their property. (NPC v. Sps. Saludares,
G.R. No. 189127, April 25, 2012).
Similarly, while respondent spouses could still utilize the area beneath NAPOCORs
transmission lines provided that the plants to be introduced underneath would not exceed three
meters, danger is posed to the lives and limbs of respondents farm workers, such that the
property is no longer suitable for agricultural production. Considering the nature and effect of the
Davao-Manat 138 KV transmission lines, the limitation imposed by NAPOCOR perpetually
deprives respondents of the ordinary use of their land.
Moreover, it has been ruled that Section 3A of R.A. No. 6395, as amended, is not binding upon
the Court. (NPC v. Tuazon, G.R. No. 193023, June 29, 2011, 653 SCRA 84). The determination
of just compensation in eminent domain cases is a judicial function and . . . any valuation for just
compensation laid down in the statutes may serve only as a guiding principle or one of the
factors in determining just compensation but it may not substitute the courts own judgment as to
what amount should be awarded and how to arrive at such amount. (NPC v. Bagui, G.R. No.
164964, October 17, 2008, 569 SCRA 401, hence, NAPOCOR is liable to pay respondents the
full market value of the affected property as determined by the court a quo. (NPC v. Sps.
Saludares, G.R. No. 189127, April 25, 2012).
Q Petitioner contended that the amount of just compensation fixed by the trial court is
unjust, unlawful and contrary to existing jurisprudence, because just compensation in
expropriation cases must be determined from the time of the filing of the complaint or the
time of taking of the subject property, whichever came first. It therefore posited that since
the taking of the property happened in the 1970s, the trial court erred in fixing the amount
of just compensation with reference to real property market values in the year 2000. Is the
contention correct? Explain.
Answer: No. In National Power Corporation v. Heirs of Macabangkit Sangkay, G.R. No.
165828, August 24, 2011, it was held that the reckoning value of just compensation is that
prevailing at the time of the filing of the inverse condemnation proceedings for the reason that
compensation that is reckoned on the market value prevailing at the time either when NPC
entered x x x would not be just, for it would compound the gross unfairness already caused to the
owners by NPCs entering without the intention of formally expropriating the land x x x. NPCs
entry denied elementary due process of law to the owners since then until the owners
commenced the inverse condemnation proceedings. The Court is more concerned with the
necessity to prevent NPC from unjustly profiting from its deliberate acts of denying due process
of law to the owners. As a measure of simple justice and ordinary fairness to them, therefore,
reckoning just compensation on the value at the time the owners commenced these inverse
condemnation proceedings is entirely warranted.
The owners would be deprived of their right to just compensation if the value of the property is
pegged back to its value in the 1970s. To reiterate, NAPOCOR should have instituted eminent
domain proceedings before it occupied respondent spouses property. Because it failed to comply
with this duty, respondent spouses were constrained to file the Complaint for just compensation
before the trial court. From the 1970s until the present, they were deprived of just compensation,
while NAPOCOR continuously burdened their property with its transmission lines. This Court
cannot allow petitioner to profit from its failure to comply with the mandate of the law. To
adequately compensate respondent spouses from the decades of burden on their property,
NAPOCOR should be made to pay the value of the property at the time of the filing of the
Complaint when respondent spouses made a judicial demand for just compensation. (NPC v.
Sps. Saludares, G.R. No. 189127, April 25, 2012).
Factors to consider in determining the value of the land under RA 6657.
Q What are the factors that should be taken into consideration in the computation of just
compensation under RA 6657? Explain.
Answer: In determining the just compensation, the RTC is required to consider the following
factors enumerated in Section 17 of RA 6657: (1) the acquisition cost of the land; (2) the current
value of the properties; (3) its nature, actual use, and income; (4) the sworn valuation by the
owner; (5) the tax declarations; (6) the assessment made by government assessors; (7) the social
and economic benefits contributed by the farmers and the farmworkers, and by the government
to the property; and (8) the non-payment of taxes or loans secured from any government
financing institution on the said land, if any.
In Land Bank v. Banal, 478 Phil. 701 (2004); LBP v. Rivera, G.R. No. 182431, November 17,
2010, 635 SCRA 285, it was said that these factors and formula are mandatory and not mere
guides that the SAC may disregard. While the determination of just compensation is essentially
a judicial function vested in the RTC acting as a [SAC], the judge cannot abuse his discretion by
not taking into full consideration the factors specifically identified by law and implementing
rules. [SACs] are not at liberty to disregard the formula laid down [by the DAR], because unless
an administrative order is declared invalid, courts have no option but to apply it. The [SAC]
cannot ignore, without violating the agrarian law, the formula provided by the DAR for the
determination of just compensation. (LBP v. Heirs of Encinas, G.R. No. 167735, April 18,
2012, Brion, J).
Note:
Instead of taking into account the condition of the subject land at the time of taking on December
5, 1997 when the title was transferred to the Republic of the Philippines, the RTC considered the
respondents evidence on the condition of the subject land at the time of rendition of the
judgment, as well the updated schedule of fair market value of real properties in the Province of
Sorsogon (Sanggunian Panlalawigan Resolution No. 73-99). The RTC made use of no
computation or formula to arrive at the P4,470,554.00 figure. In fact, it simply enumerated the
respondents evidence and plucked out of thin air the amount ofP4,470,554.00.
Taking; when.
The taking of private lands under the agrarian reform program partakes of the nature
of an expropriation proceeding. In computing the just compensation for expropriation
proceedings, the RTC should take into consideration the value of the land at the time of the
taking, not at the time of the rendition of judgment. The time of taking is the time when the
landowner was deprived of the use and benefit of his property, such as when title is transferred to
the Republic.
Note:
The agrarian reform process is still incomplete if the just compensation to be paid has not yet
been settled. (LBP vs. Natividad, 497 Phil. 738 (2005) and that the land shall be considered taken
only upon payment of just compensation because it would complete the agrarian reform process
(LBP vs. Ferrer, G.R. No. 172230, February 2, 2011, 641 SCRA 414).
Political Law
FRANCHISE
Sec. 2, Article XII, Constitution
Q Section 11, Article XII (National Economy and Patrimony) of the 1987 Constitution
mandates the Filipinization of public utilities, where it provides that no franchise,
certificate, or any other form of authorization for the operation of a public utility shall be
granted except 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. What is the meaning of the term capital? Explain.
Answer: The term capital refers only to shares of stock entitled to vote in the election of
directors. Hence, it refers to common shares and not to the total outstanding capital stock
comprising both common and non-voting preferred shares. This interpretation is consistent with
the intent of the framers of the Constitution to place in the hands of Filipino citizens the control
and management of public utilities. As revealed in the deliberations of the Constitutional
Commission, capital refers to the voting stock or controlling interest of a corporation.
(Wilson Gamboa v. Sec. of Finance Teves, et al., G.R. No. 176579, June 28, 2011).
Indisputably, one of the rights of a stockholder is the right to participate in the control or
management of the corporation. This is exercised through his vote in the election of directors
because it is the board of directors that controls or manages the corporation. In the absence of
provisions in the articles of incorporation denying voting rights to preferred shares, preferred
shares have the same voting rights as common shares. However, preferred shareholders are often
excluded from any control, that is, deprived of the right to vote in the election of directors and on
other matters, on the theory that the preferred shareholders are merely investors in the
corporation for income in the same manner as bondholders. In fact, under the Corporation Code
only preferred or redeemable shares can be deprived of the right to vote. (Sec. 6, BP 68, or the
Corporation Code). Common shares cannot be deprived of the right to vote in any corporate
meeting, and any provision in the articles of incorporation restricting the right of common
shareholders to vote is invalid.
Considering that common shares have voting rights which translate to control, as opposed to
preferred shares which usually have no voting rights, the term capital in Section 11, Article
XII of the Constitution refers only to common shares. 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. (Wilson Gamboa v. Sec. of Finance Teves, et al., G.R. No. 176579, June
28, 2011, Carpio, J).
Meaning and effect of the 60 percent of the capital of a corporation.
The 60 percent of the capital assumes, or should result in, controlling interest in the
corporation. Reinforcing this interpretation of the term capital, as referring to controlling
interest or shares entitled to vote, is the definition of a Philippine national in the Foreign
Investments Act of 1991, to wit:
SEC. 3. Definitions. - As used in this Act:
a. The term Philippine national shall mean a citizen of the Philippines; or a domestic
partnership or association wholly owned by citizens of the Philippines; or a corporation
organized under the laws of the Philippines of which at least sixty percent (60%) of the
capital stock outstanding and entitled to vote is owned and held by citizens of the
Philippines; or a corporation organized abroad and registered as doing business in the
Philippines under the Corporation Code of which one hundred percent (100%) of the capital
stock outstanding and entitled to vote is wholly owned by Filipinos or a trustee of funds for
pension or other employee retirement or separation benefits, where the trustee is a Philippine
national and at least sixty percent (60%) of the fund will accrue to the benefit of Philippine
nationals: Provided, That where a corporation and its non-Filipino stockholders own stocks in a
Securities and Exchange Commission (SEC) registered enterprise, at least sixty percent (60%) of
the capital stock outstanding and entitled to vote of each of both corporations must be owned and
held by citizens of the Philippines and at least sixty percent (60%) of the members of the Board
of Directors of each of both corporations must be citizens of the Philippines, in order that the
corporation, shall be considered a Philippine national. (Emphasis supplied)
In explaining the definition of a Philippine national, the Implementing Rules and Regulations
of the Foreign Investments Act of 1991 provide:
b. Philippine national shall mean a citizen of the Philippines or a domestic partnership or
association wholly owned by the citizens of the Philippines; or a corporation organized under
the laws of the Philippines of which at least sixty percent [60%] of the capital stock
outstanding and entitled to vote is owned and held by citizens of the Philippines; or a trustee
of funds for pension or other employee retirement or separation benefits, where the trustee is a
Philippine national and at least sixty percent [60%] of the fund will accrue to the benefit of the
Philippine nationals;Provided, that where a corporation its non-Filipino stockholders own stocks
in a Securities and Exchange Commission [SEC] registered enterprise, at least sixty percent
[60%] of the capital stock outstanding and entitled to vote of both corporations must be owned
and held by citizens of the Philippines and at least sixty percent [60%] of the members of the
Board of Directors of each of both corporation must be citizens of the Philippines, in order that
the corporation shall be considered a Philippine national. The control test shall be applied for this
purpose.
Compliance with the required Filipino ownership of a corporation shall be determined on
the basis of outstanding capital stock whether fully paid or not, but only such stocks which
are generally entitled to vote are considered.
For stocks to be deemed owned and held by Philippine citizens or Philippine nationals,
mere legal title is not enough to meet the required Filipino equity. Full beneficial ownership
of the stocks, coupled with appropriate voting rights is essential. Thus, stocks, the voting
rights of which have been assigned or transferred to aliens cannot be considered held by
Philippine citizens or Philippine nationals.
Individuals or juridical entities not meeting the aforementioned qualifications are
considered as non-Philippine nationals. (Emphasis supplied)
Mere legal title is insufficient to meet the 60 percent Filipino-owned capital required in the
Constitution. Full beneficial ownership of 60 percent of the outstanding capital stock, coupled
with 60 percent of the voting rights, is required. The legal and beneficial ownership of 60 percent
of the outstanding capital stock must rest in the hands of Filipino nationals in accordance with
the constitutional mandate. Otherwise, the corporation is considered as non-Philippine
national[s].
Capital does not mean total outstanding capital including common and non-voting
preferred shares.
Q What is the effect if we construe capital as including common and non-voting preferred
shares? In the case of PLDT, (1) foreigners own 64.27% of the common shares of PLDT,
which class of shares exercises the sole right to vote in the election of 35.73% of PLDTs
common shares, constituting a minority of the voting stock, and thus do not exercise
control over PLDT; (3) preferred shares, 99.44% owned by Filipinos, have no voting
rights; (4) preferred shares earn only 1/70 of the dividends that common shares earn; (5)
preferred shares have twice the par value of common shares; and (6) preferred shares
constitute 77.85% of the authorized capital stock of PLDT and common shares only
22.15%.
PLDT common shares with a par value of P5.00 have a current stock market value
of P2,328.00per share, while PLDT preferred shares with a par value of P10.00 per share
have a current stock market value ranging from only P10.92 to P11.06 per share. Explain
the effect of such kind of ownership of the shares of stock of PLDT, a public utility
company.
Answer: This kind of ownership and control of a public utility is a mockery of the Constitution.
Construing the term capital in Section 11, Article XII of the Constitution to include both
voting and non-voting shares will result in the abject surrender of our telecommunications
industry to foreigners, amounting to a clear abdication of the States constitutional duty to limit
control of public utilities to Filipino citizens. Such an interpretation certainly runs counter to the
constitutional provision reserving certain areas of investment to Filipino citizens, such as the
exploitation of natural resources well as the ownership of land, educational institutions and
advertising businesses. The Court should never open to foreign control what the Constitution has
expressly reserved to Filipinos for that would be a betrayal of the Constitution and of the national
interest. The Court must perform its solemn duty to defend and uphold the intent and letter of the
Constitution to ensure, in the words of the Constitution, a self-reliant and independent national
economy effectively controlled by Filipinos. (Gamboa v. Teves, et al., G.R. No. 176579, June
28, 2011).
Reservation by the Constitution of certain areas of Investment; self-executory.
Section 11, Article XII of the Constitution, like other provisions of the Constitution expressly
reserving to Filipinos specific areas of investment, such as the development of natural resources
and ownership of land, educational institutions and advertising business, is self-executing. There
is no need for legislation to implement these self-executing provisions of the Constitution. The
rationale why these constitutional provisions are self-executing was explained in Manila Prince
Hotel v. GSIS, 335 Phil 82 (1997) thus:
x x x Hence, unless it is expressly provided that a legislative act is necessary to enforce a
constitutional mandate, the presumption now is that all provisions of the constitution are self-
executing. If the constitutional provisions are treated as requiring legislation instead of self-
executing, the legislature would have the power to ignore and practically nullify the mandate of
the fundamental law. This can be cataclysmic. That is why the prevailing view is, as it has
always been, that
. . . in case of doubt, the Constitution should be considered self-executing rather than non-self-
executing. . . . Unless the contrary is clearly intended, the provisions of the Constitution
should be considered self-executing, as a contrary rule would give the legislature discretion
to determine when, or whether, they shall be effective. These provisions would be
subordinated to the will of the lawmaking body, which could make them entirely meaningless by
simply refusing to pass the needed implementing statute. (Emphasis supplied)
Thus, in numerous cases, Krivenko v. Register of Deeds, 79 Phil. 461
(1947); Rellosa v. Gaw Chee Hun, 93 Phil. 827 (1953); Vasquez v. Li Seng Giap, 96 Phil. 447
(1955); Soriano v. Ong Hoo, 103 Phil. 829 (1958); Philippine Banking Corporation v. LuiShe,
128 Phil. 53 (1967); Frenzel v. Catito, 453 Phil. 885 (2003), the Court, even in the absence of
implementing legislation, applied directly the provisions of the 1935, 1973 and 1987
Constitutions limiting land ownership to Filipinos. In Soriano v. Ong Hoo, the Court ruled:
x x x As the Constitution is silent as to the effects or consequences of a sale by a citizen of his
land to an alien, and as both the citizen and the alien have violated the law, none of them should
have a recourse against the other, and it should only be the State that should be allowed to
intervene and determine what is to be done with the property subject of the violation. We have
said that what the State should do or could do in such matters is a matter of public policy,
entirely beyond the scope of judicial authority. (Dinglasan, et al. vs. Lee Bun Ting, et al., 6 G. R.
No. L-5996, June 27, 1956.)While the legislature has not definitely decided what policy
should be followed in cases of violations against the constitutional prohibition, courts of
justice cannot go beyond by declaring the disposition to be null and void as violative of the
Constitution. x x x (Emphasis supplied)
To treat Section 11, Article XII of the Constitution as not self-executing would mean that since
the 1935 Constitution, or over the last 75 years, not one of the constitutional provisions expressly
reserving specific areas of investments to corporations, at least 60 percent of the capital of
which is owned by Filipinos, was enforceable. In short, the framers of the 1935, 1973 and 1987
Constitutions miserably failed to effectively reserve to Filipinos specific areas of investment, like
the operation by corporations of public utilities, the exploitation by corporations of mineral
resources, the ownership by corporations of real estate, and the ownership of educational
institutions. All the legislatures that convened since 1935 also miserably failed to enact
legislations to implement these vital constitutional provisions that determine who will effectively
control the national economy, Filipinos or foreigners. This Court cannot allow such an absurd
interpretation of the Constitution. (Gamboa v. Teves, et al., G.R. No. 176549, June 28, 2011).
Legal & beneficial ownership of 60% of outstanding capital stock must be owned by
Filipinos.
The legal and beneficial ownership of 60 percent of the outstanding capital stock must rest in the
hands of Filipinos in accordance with the constitutional mandate. Full beneficial ownership of 60
percent of the outstanding capital stock, coupled with 60 percent of the voting rights, is
constitutionally required for the States grant of authority to operate a public utility. The
undisputed fact that the PLDT preferred shares, 99.44% owned by Filipinos, are non-voting and
earn only 1/70 of the dividends that PLDT common shares earn, grossly violates the
constitutional requirement of 60 percent Filipino control and Filipino beneficial ownership of a
public utility.
In short, Filipinos hold less than 60 percent of the voting stock, and earn less than 60 percent of
the dividends, of PLDT. This directly contravenes the express command in Section 11, Article
XII of the Constitution that [n]o franchise, certificate, or any other form of authorization for the
operation of a public utility shall be granted except to x x x corporations x x x organized under
the laws of the Philippines, at least sixty per centum of whose capital is owned by such citizens
x x x.
Filipinization provision of the Constitution; meaning and purpose.
Q What is the meaning and purpose of the Filipinization of public utilities? Explain.
Answer: 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).
Political Law
IMMUNITY OF THE STATE FROM SUIT
UPs fraud, being government funds, are not subject to garnishment.
Q UP through its President entered into a contract for the construction of the extension
building and renovation of the College of Arts & Sciences Building. It however did not pay
a billing from the contractor. After trial, judgment was rendered ordering UP to pay,
hence, it appealed from the judgment. The RTC denied due course to the appeal, hence,
upon motion of the plaintiff, a writ of execution was issued. It assailed the denial of due
course to its appeal at the Court of Appeals which dismissed the petition for certiorari
upon finding that the notice of appeal had been filed late. In the meantime, monies of UP
were garnished. A motion to release the garnished funds was filed which was granted but
UP filed a motion for reconsideration, hence, the court issued an order holding in abeyance
the enforcement of the writs of execution and all ensuing garnishment citing Section 4, Rule
52 of the Rules of Court which provides that the pendency of a timely motion for
reconsideration stays the execution of the judgment. However, the RTC later on authorized
the release of the garnished funds of UP, but the bank refused to release the funds. In the
meantime, UP challenged the garnishment of the funds, citing Department of Agriculture
v. National Labor Relations Commission, G.R. No. 104269, November 11, 1993, 227 SCRA
693 and Section 84 of Presidential Decree No. 1445 to the effect that revenue funds shall
not be paid out of any public treasury or depository except in pursuance of an
appropriation law or other specific statutory authority; and that the order of garnishment
clashed with the ruling in University of the Philippines Board of Regents v. Ligot-Telan,
G.R. No. 110280, October 21, 1993, 227 SCRA 342 to the effect that the funds belonging to
the UP were public funds. Is the contention correct? Explain.
Answer: Yes. The UP was founded to provide advanced instruction in literature, philosophy, the
sciences, and arts, and to give professional and technical training to deserving students. Despite
its establishment as a body corporate, the UP remains to be a chartered institution performing a
legitimate government function. It is an institution of higher learning, not a corporation
established for profit and declaring any dividends. In enacting Republic Act No. 9500 (The
University of the Philippines Charter of 2008), Congress has declared the UP as the national
university dedicated to the search for truth and knowledge as well as the development of future
leaders. (UP v. CIR, 107 Phil. 848 (1960)).
Irrefragably, the UP is a government instrumentality, performing the States constitutional
mandate of promoting quality and accessible education. (Sec. 1, Art. XIV, Constitution). As a
government instrumentality, the UP administers special funds sourced from the fees and income
enumerated under Act No. 1870 and Section 1 of Executive Order No. 714, and from the yearly
appropriations, to achieve the purposes laid down by Section 2 of Act 1870, as expanded in
Republic Act No. 9500. All the funds going into the possession of the UP, including any interest
accruing from the deposit of such funds in any banking institution, constitute a special trust
fund, the disbursement of which should always be aligned with the UPs mission and purpose,
and should always be subject to auditing by the COA.
The funds of the UP are government funds that are public in character. They include the income
accruing from the use of real property ceded to the UP that may be spent only for the attainment
of its institutional objectives. Hence, the funds subject of this action could not be validly made
the subject of the RTCs writ of execution or garnishment. The adverse judgment rendered
against the UP in a suit to which it had impliedly consented was not immediately enforceable by
execution against the UP, because suability of the State did not necessarily mean its liability.
(UP, et al. v. Hon. Agustin Dizon, et al., G.R. No. 171182, August 23, 2012, Bersamin, J).
Distinction between immunity and suability.
A marked distinction exists between suability of the State and its liability. In Municipality of San
Fernando, La Union v. Firme, G.R. No. L-52179, April 8, 1991, 195 SCRA 692, the SC ruled:
A distinction should first be made between suability and liability. Suability depends on the
consent of the state to be sued, liability on the applicable law and the established facts. The
circumstance that a state is suable does not necessarily mean that it is liable; on the other hand, it
can never be held liable if it does not first consent to be sued. Liability is not conceded by the
mere fact that the state has allowed itself to be sued. When the state does waive its sovereign
immunity, it is only giving the plaintiff the chance to prove, if it can, that the defendant is liable.
Also, in Republic v. Villasor, G.R. No. L-30671, November 28, 1973, 54 SCRA 83, where the
issuance of an alias writ of execution directed against the funds of the Armed Forces of the
Philippines to satisfy a final and executory judgment was nullified, the Court said:
xxx The universal rule that where the State gives its consent to be sued by private parties either
by general or special law, it may limit claimants action only up to the completion of
proceedings anterior to the stage of execution and that the power of the Courts ends when the
judgment is rendered, since government funds and properties may not be seized under writs of
execution or garnishment to satisfy such judgments, is based on obvious considerations of public
policy. Disbursements of public funds must be covered by the corresponding appropriation as
required by law. The functions and public services rendered by the State cannot be allowed to be
paralyzed or disrupted by the diversion of public funds from their legitimate and specific objects,
as appropriated by law.
UP correctly contended that the garnishment of its funds to satisfy the judgment awards of actual
and moral damages (including attorneys fees) was not validly made if there was no special
appropriation by Congress to cover the liability. It was, therefore, legally unwarranted for the
lower courts to hold that no appropriation by Congress to allocate and set aside the payment of
the judgment awards was necessary because there was already an appropriation earmarked for
the said project. The lower courts unjustifiably ignored the legal restriction imposed on the trust
funds of the Government and its agencies and instrumentalities to be used exclusively to fulfill
the purposes for which the trusts were created or for which the funds were received except upon
express authorization by Congress or by the head of a government agency in control of the funds,
and subject to pertinent budgetary laws, rules and regulations. (Sec. 84(2), P.D. No. 1445).
An appropriation by Congress was required before the judgment that rendered the UP liable for
moral and actual damages (including attorneys fees) would be satisfied considering that such
monetary liabilities were not covered by the appropriations earmarked for the said project. The
Constitution strictly mandated that (n)o money shall be paid out of the Treasury except in
pursuance of an appropriation made by law. (Art. VI, Sec. 29(1), Constitution).
COA must adjudicate private respondents claim before execution should proceed.
The execution of the monetary judgment against the UP was within the primary jurisdiction of
the COA. (Section 26 of Presidential Decree No. 1445).
It was of no moment that a final and executory decision already validated the claim against the
UP. The settlement of the monetary claim was still subject to the primary jurisdiction of the
COA despite the final decision of the RTC having already validated the claim. (National Home
Mortgage Finance Corporation v. Abayari, G.R. No. 166508, October 2, 2009, 602 SCRA 242,
256). As such, plaintiffs as the claimants had no alternative except to first seek the approval of
the COA of their monetary claim.
The RTC should have exercised utmost caution, prudence and judiciousness in dealing
with the motions for execution against the UP and the garnishment of the UPs funds. It had no
authority to direct the immediate withdrawal of any portion of the garnished funds from the
depository banks of the UP. By eschewing utmost caution, prudence and judiciousness in dealing
with the execution and garnishment, and by authorizing the withdrawal of the garnished funds of
the UP, the RTC acted beyond its jurisdiction, and all its orders and issuances thereon were void
and of no legal effect.
Corporations use of the term State Corporation merely descriptive of its nature;
performing propriety functions.
Q North Luzon Railways Corp. (North-rail) and China National Machinery &
Equipment Corp. entered into a Memorandum of Agreement for the construction of the
Railway System from Caloocan City to Malolos, Bulacan. Eximbank and the Department
of Finance entered into a loan agreement to finance the project as the Chinese government
designated the bank as the lender. Atty. Harry Roque, et al. filed a petition seeking to
nullify the contract alleging that it violated the Constitution and RA 9184, otherwise known
as the Government Procurement Act. CNMEC contended that it cannot be sued since it
was an agent of the Peoples Republic of China, performing a governmental function. Is the
contention correct? Why?
Answer: No, it is performing proprietary activity.
The desire of CNMEG to secure the Northrail Project was in the ordinary or regular course of its
business as a global construction company. The implementation of the Northrail Project was
intended to generate profit for CNMEG.The use of the term state corporation to refer to
CNMEG was only descriptive of its nature as a government-owned and/or -controlled
corporation, and its assignment as the Primary Contractor did not imply that it was acting on
behalf of China in the performance of the latters sovereign functions. To imply otherwise would
result in an absurd situation, in which all Chinese corporations owned by the state would be
automatically considered as performing governmental activities, even if they are clearly engaged
in commercial or proprietary pursuits. (China National Machinery & Equipment Corp. v. Hon.
Sta. Maria, et al., G.R. No. 185572, February 7, 2012).
Q When it was sued, it offered a Certification executed by the Economic & Commercial
Office of the Peoples Republic of China, stating that the Northrail Projectr was in pursuit
of a sovereign activity. Such Certification was endorsed by the OSG and the OGCC. Is the
certification endorsed by the OGCC and the OSG sufficient? Why?
Answer: No. The determination by the OSG and OGCC does not inspire the same degree of
confidence as a DFA certification which can even be inquired as to its intrinsic correctness.
The DFAs function includes, among its other mandates, the determination of persons and
institutions covered by diplomatic immunities, a determination which, when challenged entitles
it to seek relief from the court so as not to seriously impair the conduct of the countrys foreign
relations. The DFA must be allowed to plead its case whenever necessary or advisable to enable
it to help keep the credibility of the Philippine government before the international
community. When international agreements are concluded, the parties thereto are deemed to
have likewise accepted the responsibility of seeing to it that their agreements are duly regarded.
In our country, this task falls principally on the DFA as being the highest executive department
with the competence and authority to so act in this aspect of the international arena. (China
National Machinery & Equipment Corp. v. Hon. Sta. Maria, et al., G.R. No. 185572, February 7,
2012 citing Deutsche Gesellschaft Fur Technishe Zusammenarbeit v. CA, G.R. No. 152318,
April 16, 2009, 585 SCRA 150).
Doctrine of sovereign immunity; its concept.
The Court explained the doctrine of sovereign immunity in Holy See v. Rosario, G.R. No.
101949, December 1, 1994, 238 SCRA 524, to wit:
There are two conflicting concepts of sovereign immunity, each widely held and firmly
established. According to the classical or absolute theory, a sovereign cannot, without its
consent, be made a respondent in the courts of another sovereign. According to the newer or
restrictive theory, the immunity of the sovereign is recognized only with regard to public acts or
acts jure imperii of a state, but not with regard to private acts or acts jure gestionis. (Emphasis
supplied; citations omitted.)
xxx xxx xxx
The restrictive theory came about because of the entry of sovereign states into purely commercial
activities remotely connected with the discharge of governmental functions. This is particularly
true with respect to the Communist states which took control of nationalized business activities
and international trading.
In JUSMAG v. National Labor Relations Commission, G.R. No. 108813, December 15, 1994,
239 SCRA 224, the Court affirmed the Philippines adherence to the restrictive theory as
follows:
The doctrine of state immunity from suit has undergone further metamorphosis. The view
evolved that the existence of a contract does not, per se, mean that sovereign states may, at all
times, be sued in local courts. The complexity of relationships between sovereign states, brought
about by their increasing commercial activities, mothered a more restrictive application of the
doctrine.
xxx xxx xxx
As it stands now, the application of the doctrine of immunity from suit has
been restricted to sovereign or governmental activities (jure imperii). The mantle of state
immunity cannot be extended to commercial, private and proprietary acts (jure gestionis).
Since the Philippines adheres to the restrictive theory,

it is crucial to ascertain the legal nature of
the act involved whether the entity claiming immunity performs governmental, as opposed to
proprietary, functions. As held in United States of America v. Ruiz, 221 Phil. 179 (1985):
The restrictive application of State immunity is proper only when the proceedings arise out of
commercial transactions of the foreign sovereign, its commercial activities or economic affairs.
Stated differently, a State may be said to have descended to the level of an individual and can
thus be deemed to have tacitly given its consent to be sued only when it enters into business
contracts. It does not apply where the contract relates to the exercise of its sovereign functions.
(UP, et al. v. Hon. Agustin Dizon, et al., G.R. No. 171182, August 23, 2012, Bersamin, J).
Political Law
LOCAL GOVERNMENT UNIT (LGU)
3-term limit; Mayor did not serve the 3-term limit when he was deprived of the right to
occupy position although finally proclaimed winners.
Q Mayor Abundo was elected Mayor in the local elections of Viga, Catanduanes in 2011,
2004, 2007 and served as Mayor. However, in the 2004 elections, Torres was proclaimed as
the winner, but after the protest was decided Abundo was finally proclaimed as the winner,
hence, he served as Mayor starting May 9, 2006 until the end of the 2004-2007 term on
June 30, 2007 or for a period of one year and one month. In the 2010 local elections, he
again filed his certificate of candidacy. The opponent filed a petition for disqualification
because he was running for a fourth term, violating of the 3-term limit rule. Is the
contention correct? Why?
Answer: No, because he did not serve the full term in the 2004-2007 elections, when he was
initially deprived of title to, and was veritably disallowed to serve and occupy an office to which
he, after due proceedings, was eventually declared to have been the rightful choice of the
electorate. Article X, Sec. 8 of the Constitution and Sec. 43(b) of RA 7160, or the Local
Government Code provide that no local elective official shall serve for more than three (3)
consecutive terms in the same position. The 3-term limit has two (2) basic requirements, thus:
(1) That the official concerned has been elected for three consecutive terms in the same local government
post; and
(2) That he has fully served three consecutive terms. (Lonzanida v. COMELEC, G.R. No. 135150, July 28,
1999, 311 SCRA 602).
Abundo could not have served for a full term in 2004-2007 because the opponent was
proclaimed as the winner, hence, Abundo was termporarily unable to discharge his functions as
mayor during the pendency of the election protest. The declaration of being the winner in an
election protest grants the local elected official the right to serve the unexpired portion of the
term but while was declared the winner for the 2004-2007 term, his full term has been
substantially reduced by the actual service by his opponent. Hence, there was involuntary
interruption in the term of Abundo and cannot be considered to have served the full 2004-2007
term. (Mayor Abelardo Abundo, Jr. v. COMELEC, et al., G.R. No. 201716, January 8, 2013).
Note:
Summary of prevailing jurisprudence on issues affecting consecutiveness of terms and/or
involuntary interruption:
When a permanent vacancy occurs in an elective position and the official merely assumed the
position pursuant to the rules on succession under the LGC, then his service for the unexpired
portion of the term of the replaced official cannot be treated as one full term as contemplated
under the subject constitutional and statutory provision that service cannot be counted in the
application of any term limit (Borja, Jr. v. COMELEC, et al., G.R. No. 133495, September 3, 1998,
295 SCRA 157). If the official runs again for the same position he held prior to his assumption of
the higher office, then his succession to said position is by operation of law and is considered an
involuntary severance or interruption (Montebon v. COMELEC, G.R. No. 180444, April 8, 2008,
551 SCRA 50).
An elective official, who has served for three consecutive terms and who did not seek the
elective position for what could be his fourth term, but later won in a recall election, had an
interruption in the continuity of the officials service. For, he had become in the interim, i.e.,
from the end of the 3rd term up to the recall election, a private citizen (Adormeo v. COMELEC,
G.R. No. 147927, February 4, 2002, 376 SCRA 90; Socrates v. COMELEC, G.R. No. 154512,
November 12, 2002, 391 SCRA 457).
The abolition of an elective local office due to the conversion of a municipality to a city does not,
by itself, work to interrupt the incumbent officials continuity of service (Latasa v. COMELEC,
G.R. No. 154829, December 10, 2003, 417 SCRA 601).
Preventive suspension is not a term-interrupting event as the elective officers continued stay
and entitlement to the office remain unaffected during the period of suspension, although he is
barred from exercising the functions of his office during this period (Aldovino, Jr. v. COMELEC,
G.R. No. 184836. December 23, 2009, 609 SCRA 234).
When a candidate is proclaimed as winner for an elective position and assumes office, his term
is interrupted when he loses in an election protest and is ousted from office, thus disenabling
him from serving what would otherwise be the unexpired portion of his term of office had the
protest been dismissed (Lonzanida and Dizon). The break or interruption need not be for a full
term of three years or for the major part of the 3-year term; an interruption for any length of
time, provided the cause is involuntary, is sufficient to break the continuity of service (Lonzanida
v. COMELEC, G.R. No. 135150, July 28, 1999, 311 SCRA 602).
When an official is defeated in an election protest and said decision becomes final after said
official had served the full term for said office, then his loss in the election contest does not
constitute an interruption since he has managed to serve the term from start to finish. His full
service, despite the defeat, should be counted in the application of term limits because the
nullification of his proclamation came after the expiration of the term (Ong v. Alegre, G.R. No.
163295 & 163354, January 23, 2006, 479 SCRA 473; Rivera v. COMELEC, G.R. No. 167571 &
170577, May 9, 2007, 523 SCRA 41; Abundo, Jr. v. COMELEC, et al., G.R. No. 201716, January 8,
2013).
3-term limit; preventive suspension is not interruption of term.
Q Wilfredo Asilo was elected councilor in Lucena City for three (3) terms, but he was
suspended for 90 days by the SB on his third term. In the 2007 elections, he filed his
certificate of candidacy for councilor but there ws a petition to deny due course to his
certificate of candidacy alleging that he was running for a fourth term. The COMELEC
ruled in favor of Asilo and denied the petition to deny due course holding that the
preventive suspension was an effective interruption of his term because it rendered him
unable to provide complete service for the full term, hence, such term should not be
counted for the purpose for the three-term limit rule. Is the ruling correct? Explain.
Answer: No, because he has already served three (3) terms as councilor.
Section 8, Article X of the Constitution states:
Section 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than
three consecutive terms. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full term for which he was
elected.
The constitutional provision fixes the term of a local elective office and limits an elective
officials stay in office to no more than three consecutive terms. This is the first branch of the
rule embodied in Section 8, Article X. (Sec. 43(b) of RA 7160).
Significantly, this provision refers to a term as a period of time three years during which
an official has title to office and can serve. In Appari v. Court of Appeals, it was ruled that:
The word term in a legal sense means a fixed and definite period of time which the law
describes that an officer may hold an office. According to Mechem, the term of office is the
period during which an office may be held. Upon expiration of the officers term, unless he is
authorized by law to holdover, his rights, duties and authority as a public officer must ipso
facto cease. In the law of public officers, the most and natural frequent method by which a public
officer ceases to be such is by the expiration of the terms for which he was elected or appointed.
(G.R. No. L-30057, January 31, 1984, 127 SCRA 231; Simon Aldovino, Jr., et al. v. COMELEC,
et al., G.R. No. 184836, December 23, 2009, Brion, J).
Note:
In Gaminde v. Commission on Audit, 401 Phil. 77 (2000) it was likewise held that the term
means the time during which the officer may claim to hold office as of right, and fixes the
interval after which the several incumbents shall succeed one another.
The limitation under this first branch of the provision is expressed in the negative no such
official shall serve for more than three consecutive terms. This formulation no more than
three consecutive terms is a clear command suggesting the existence of an inflexible
rule. While it gives no exact indication of what to serve. . . three consecutive terms exactly
connotes, the meaning is clear reference is to the term, not to the service that a public official
may render. In other words, the limitation refers to the term.
The second branch relates to the provisions express initiative to prevent any circumvention of
the limitation through voluntary severance of ties with the public office; it expressly states
that voluntary renunciation of office shall not be considered as an interruption in the continuity
of his service for the full term for which he was elected. This declaration complements
the term limitation mandated by the first branch.
A notable feature of the second branch is that it does not textually state that voluntary
renunciation is the only actual interruption of service that does not affect continuity of service
for a full term for purposes of the three-term limit rule. It is a pure declaratory statement of
what does not serve as an interruption of service for a full term, but the phrase voluntary
renunciation, by itself, is not without significance in determining constitutional intent.
The word renunciation carries the meaning of abandonment. To renounce is to give up,
abandon, decline, or resign. (Websters Third New International Dictionary (1993), p. 1922). It is
an act that emanates from its author, as contrasted to an act that operates from the outside. Read
with the definition of a term, renunciation, as mentioned under the second branch of the
constitutional provision, cannot but mean an act that results in cutting short the term, i.e., the loss
of title to office. The descriptive word voluntary linked together with renunciation signifies
an act of surrender based on the surenderees own freely exercised will; in other words, a loss of
title to office by conscious choice. In the context of the three-term limit rule, such loss of title is
not considered an interruption because it is presumed to be purposely sought to avoid the
application of the term limitation.
During the deliberations of the Constitutional Commission, it was expressed that abandonment is
voluntary. In other words, the incumbent cannot circumvent the restriction by merely resigning
at any given time on the second term. It was also expressed that voluntary renunciation is more
general or embracing than abandonment and resignation. The interpretation of the term voluntary
renunciation is that, the framers intended to close all gaps that an elective official may seize to
defeat the three-term limit rule, in the way that voluntary renunciation has been rendered
unavailable as a mode of defeating the three-term limit rule.
This examination of the wording of the constitutional provision and of the circumstances
surrounding its formulation impresses upon us the clear intent to make term limitation a high
priority constitutional objective whose terms must be strictly construed and which cannot be
defeated by, nor sacrificed for, values of less than equal constitutional worth. (Simon Aldovino,
Jr., et al. v. COMELEC, et al., G.R. No. 184836, December 23, 2009, Brion, J).
Relevant Jurisprudence on theThree-term Limit Rule
Other than the above-cited materials, jurisprudence best gives us a lead into the concepts within
the provisions contemplation, particularly on the interruption in the continuity of service for
the full term that it speaks of.
Lonzanida v. Commission on Elections, G.R. No. 135150, July 28, 1999, 311 SCRA
602, presented the question of whether the disqualification on the basis of the three-term limit
applies if the election of the public official (to be strictly accurate, the proclamation as winner of
the public official) for his supposedly third term had been declared invalid in a final and
executory judgment. It was ruled that the two requisites for the application of the disqualification
(viz., 1. that the official concerned has been elected for three consecutive terms in the same local
government post; and 2. that he has fully served three consecutive terms) were not present. In so
ruling, it was said that:
The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term
limit by a voluntary renunciation of office and at the same time respect the peoples choice and
grant their elected official full service of a term is evident in this provision. Voluntary
renunciation of a term does not cancel the renounced term in the computation of the three term
limit; conversely, involuntary severance from office for any length of time short of the full
term provided by law amounts to an interruption of continuity of service. The petitioner vacated
his post a few months before the next mayoral elections, not by voluntary renunciation but in
compliance with the legal process of writ of execution issued by the COMELEC to that
effect. Such involuntary severance from office is an interruption of continuity of service and
thus, the petitioner did not fully serve the 1995-1998 mayoral term. [Emphasis supplied]
The intended meaning under this ruling is clear: it is severance from office, or to be exact, loss of
title, that renders the three-term limit rule inapplicable.
Ong v. Alegre, 479 SCRA 473 (January 23, 2006) and Rivera v. COMELEC, G.R. No. 167591,
May 9, 2007, 523 SCRA 41, like Lonzanida, also involved the issue of whether there had been a
completed term for purposes of the three-term limit disqualification. These cases, however,
presented an interesting twist, as their final judgments in the electoral contest came after the term
of the contested office had expired so that the elective officials in these cases were never
effectively unseated.
Despite the ruling that Ong was never entitled to the office (and thus was never validly elected),
the Court concluded that there was nevertheless an election and service for a full term in
contemplation of the three-term rule based on the following premises: (1) the final decision that
the third-termer lost the election was without practical and legal use and value, having been
promulgated after the term of the contested office had expired; and (2) the official assumed and
continuously exercised the functions of the office from the start to the end of the term. The
Court noted in Ong the absurdity and the deleterious effect of a contrary view that the official
(referring to the winner in the election protest) would, under the three-term rule, be considered to
have served a term by virtue of a veritably meaningless electoral protest ruling, when another
actually served the term pursuant to a proclamation made in due course after an election. This
factual variation led the Court to rule differently from Lonzanida.
In the same vein, the Court in Rivera rejected the theory that the official who finally lost the
election contest was merely a caretaker of the office or a mere de facto officer. The Court
obeserved that Section 8, Article X of the Constitution is violated and its purpose defeated when
an official fully served in the same position for three consecutive terms. Whether as caretaker
or de facto officer, he exercised the powers and enjoyed the perquisites of the office that
enabled him to stay on indefinitely.
Ong and Rivera are important rulings for purposes of the three-term limitation because of what
they directly imply. Although the election requisite was not actually present, the Court still gave
full effect to the three-term limitation because of the constitutional intent to strictly limit elective
officials to service for three terms. By so ruling, the Court signalled how zealously it guards the
three-term limit rule. Effectively, these cases teach us to strictly interpret the term limitation rule
in favor of limitation rather than its exception.
Adormeo v. Commission on Elections, 426 Phil. 472 (2002) dealt with the effect of recall on the
three-term limit disqualification. The case presented the question of whether the disqualification
applies if the official lost in the regular election for the supposed third term, but was elected in a
recall election covering that term. The Court upheld the COMELECs ruling that the official
was not elected for three (3) consecutive terms. The Court reasoned out that for nearly two
years, the official was a private citizen; hence, the continuity of his mayorship was disrupted by
his defeat in the election for the third term.
Socrates v. Commission on Elections, 440 Phil. 106 (2002) also tackled recall vis--vis the three-
term limit disqualification. Edward Hagedorn served three full terms as mayor. As he was
disqualified to run for a fourth term, he did not participate in the election that immediately
followed his third term. In this election, the petitioner Victorino Dennis M. Socrates was elected
mayor. Less than 1 years after Mayor Socrates assumed the functions of the office, recall
proceedings were initiated against him, leading to the call for a recall election. Hagedorn filed
his certificate of candidacy for mayor in the recall election, but Socrates sought his
disqualification on the ground that he (Hagedorn) had fully served three terms prior to the recall
election and was therefore disqualified to run because of the three-term limit rule. We decided in
Hagedorns favor, ruling that:
After three consecutive terms, an elective local official cannot seek immediate reelection for a
fourth term. The prohibited election refers to the next regular election for the same office
following the end of the third consecutive term. Any subsequent election, like a recall election,
is no longer covered by the prohibition for two reasons. First, a subsequent election like a
recall election is no longer an immediate reelection after three consecutive terms. Second,
the intervening period constitutes an involuntary interruption in the continuity of service.
When the framers of the Constitution debated on the term limit of elective local officials, the
question asked was whether there would be no further election after three terms, or whether there
would be no immediate reelection after three terms.
x x x x
Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following
three consecutive terms. The Constitution, however, does not prohibit a subsequent reelection
for a fourth term as long as the reelection is not immediately after the end of the third
consecutive term. A recall election mid-way in the term following the third consecutive term is a
subsequent election but not an immediate reelection after the third term.
Neither does the Constitution prohibit one barred from seeking immediate reelection to run in
any other subsequent election involving the same term of office. What the Constitution prohibits
is a consecutive fourth term.
Latasa v. Commission on Elections, G.R. No. 154829, December 10, 2003, 417 SCRA
601, presented the novel question of whether a municipal mayor who had fully served for three
consecutive terms could run as city mayor in light of the intervening conversion of the
municipality into a city. During the third term, the municipality was converted into a city; the
cityhood charter provided that the elective officials of the municipality shall, in a holdover
capacity, continue to exercise their powers and functions until elections were held for the new
city officials. The Court ruled that the conversion of the municipality into a city did not convert
the office of the municipal mayor into a local government post different from the office of the
city mayor the territorial jurisdiction of the city was the same as that of the municipality; the
inhabitants were the same group of voters who elected the municipal mayor for 3 consecutive
terms; and they were the same inhabitants over whom the municipal mayor held power and
authority as their chief executive for nine years. The Court said:
This Court reiterates that the framers of the Constitution specifically included an exception
to the peoples 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
Constitution, if not abhorred by it.
Latasa instructively highlights, after a review of Lonzanida, Adormeo and Socrates, that no
three-term limit violation results if a rest period or break in the service between terms or tenure
in a given elective post intervened. In Lonzanida, the petitioner was a private citizen with no
title to any elective office for a few months before the next mayoral elections. Similarly,
in Adormeo and Socrates, the private respondents lived as private citizens for two years and
fifteen months, respectively. Thus, these cases establish that the law contemplates a complete
break from office during which the local elective official steps down and ceases to exercise
power or authority over the inhabitants of the territorial jurisdiction of a particular local
government unit.
Seemingly differing from these results is the case of Montebon v. Commission on Elections,
G.R. No. 180444, April 9, 2008, 551 SCRA 50, where the highest-ranking municipal councilor
succeeded to the position of vice-mayor by operation of law. The question posed when he
subsequently ran for councilor was whether his assumption as vice-mayor was an interruption of
his term as councilor that would place him outside the operation of the three-term limit rule. We
ruled that an interruption had intervened so that he could again run as councilor. This result
seemingly deviates from the results in the cases heretofore discussed since the elective official
continued to hold public office and did not become a private citizen during the interim. The
common thread that identifies Montebon with the rest, however, is that the elective
official vacated the office of councilor and assumed the higher post of vice-mayor by operation
of law. Thus, for a time he ceased to be councilor an interruption that effectively placed him
outside the ambit of the three-term limit rule.
Conclusion Based on Law and Jurisprudence
From all the above, we conclude that the interruption of a term exempting an elective official
from the three-term limit rule is one that involves no less than the involuntary loss of title to
office. The elective official must have involuntarily left his office for a length of time, however
short, for an effective interruption to occur. This has to be the case if the thrust of Section 8,
Article X and its strict intent are to be faithfully served, i.e., to limit an elective officials
continuous stay in office to no more than three consecutive terms, using voluntary renunciation
as an example and standard of what does not constitute an interruption.
Thus, based on this standard, loss of office by operation of law, being involuntary, is an effective
interruption of service within a term, as held in Montebon. On the other hand, temporary
inability or disqualification to exercise the functions of an elective post, even if involuntary,
should not be considered an effective interruption of a term because it does not involve the loss
of title to office or at least an effective break from holding office; the office holder, while
retaining title, is simply barred from exercising the functions of his office for a reason provided
by law.
An interruption occurs when the term is broken because the office holder lost the right to hold on
to his office, and cannot be equated with the failure to render service. The latter occurs during an
office holders term when he retains title to the office but cannot exercise his functions for
reasons established by law. Of course, the term failure to serve cannot be used once the right
to office is lost; without the right to hold office or to serve, then no service can be rendered so
that none is really lost.
To put it differently although at the risk of repetition, Section 8, Article X fixes an elective
officials term of office and limits his stay in office to three consecutive terms as an inflexible
rule that is stressed, no less, by citing voluntary renunciation as an example of a
circumvention. The provision should be read in the context of interruption of term, not in the
context of interrupting the full continuity of the exercise of the powers of the elective position.
The voluntary renunciation it speaks of refers only to the elective officials voluntary
relinquishment of office and loss of title to this office. It does not speak of the temporary
cessation of the exercise of power or authority that may occur for various reasons, with
preventive suspension being only one of them. To quote Latasa v. Comelec:
Indeed, [T]he law contemplates a rest period during which the local elective official steps down
from office and ceases to exercise power or authority over the inhabitants of the territorial
jurisdiction of a particular local government unit. [Emphasis supplied].
Preventive Suspension and the Three-Term Limit Rule
a. Nature of Preventive Suspension
Preventive suspension whether under the Local Government Code, the Anti-Graft and Corrupt
Practices Act, or the Ombudsman Act is aninterim remedial measure to address the situation of
an official who have been charged administratively or criminally, where the evidence
preliminarily indicates the likelihood of or potential for eventual guilt or liability.
Preventive suspension is imposed under the Local Government Code when the evidence of guilt
is strong and given the gravity of the offense, there is a possibility that the continuance in office
of the respondent could influence the witnesses or pose a threat to the safety and integrity of the
records and other evidence. Under the Anti-Graft and Corrupt Practices Act, it is imposed after
a valid information (that requires a finding of probable cause) has been filed in court, while
under the Ombudsman Act, it is imposed when, in the judgment of the Ombudsman, the
evidence of guilt is strong; and (a) the charge involves dishonesty, oppression or grave
misconduct or neglect in the performance of duty; or (b) the charges would warrant removal
from the service; or (c) the respondents continued stay in office may prejudice the case filed
against him.
Notably in all cases of preventive suspension, the suspended official is barred from performing
the functions of his office and does not receive salary in the meanwhile, but does not vacate and
lose title to his office; loss of office is a consequence that only results upon an eventual finding
of guilt or liability.
Preventive suspension is a remedial measure that operates under closely-controlled conditions
and gives a premium to the protection of the service rather than to the interests of the individual
office holder. Even then, protection of the service goes only as far as a temporary prohibition on
the exercise of the functions of the officials office; the official is reinstated to the exercise of his
position as soon as the preventive suspension is lifted. Thus, while a temporary incapacity in the
exercise of power results, no position is vacated when a public official is preventively
suspended. This was what exactly happened to Asilo.
That the imposition of preventive suspension can be abused is a reality that is true in the exercise
of all powers and prerogative under the Constitution and the laws. The imposition of preventive
suspension, however, is not an unlimited power; there are limitations built into the laws
themselves that the courts can enforce when these limitations are transgressed, particularly when
grave abuse of discretion is present. In light of this well-defined parameters in the imposition of
preventive suspension, we should not view preventive suspension from the extreme situation
that it can totally deprive an elective office holder of the prerogative to serve and is thus an
effective interruption of an election officials term.
Term limitation and preventive suspension are two vastly different aspects of an elective
officials service in office and they do not overlap. As already mentioned above, preventive
suspension involves protection of the service and of the people being served, and prevents the
office holder from temporarily exercising the power of his office. Term limitation, on the other
hand, is triggered after an elective official has served his three terms in office without any break.
Its companion concept interruption of a term on the other hand, requires loss of title to
office. If preventive suspension and term limitation or interruption have any commonality at all,
this common point may be with respect to the discontinuity of service that may occur in
both. But even on this point, they merely run parallel to each other and never
intersect; preventive suspension, by its nature, is a temporary incapacity to render
service during an unbroken term; in the context of term limitation, interruption of service
occurs after there has been a break in the term.
Preventive Suspension and the Intent of the Three-Term Limit Rule
Strict adherence to the intent of the three-term limit rule demands that preventive suspension
should not be considered an interruption that allows an elective officials stay in office beyond
three terms. A preventive suspension cannot simply be a term interruption because the
suspended official continues to stay in office although he is barred from exercising the functions
and prerogatives of the office within the suspension period. The best indicator of the suspended
officials continuity in office is the absence of a permanent replacement and the lack of the
authority to appoint one since no vacancy exists.
Q State the reason why a preventively suspended elective public officer cannot run for a
fourth term. Explain.
Answer: 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).
Preventive Suspension and Voluntary Renunciation
Preventive suspension, because it is imposed by operation of law, does not involve a voluntary
act on the part of the suspended official, except in the indirect sense that he may have voluntarily
committed the act that became the basis of the charge against him. From this perspective,
preventive suspension does not have the element of voluntariness that voluntary renunciation
embodies. Neither does it contain the element of renunciation or loss of title to office as it merely
involves the temporary incapacity to perform the service that an elective office demands. Thus
viewed, preventive suspension is by its very nature the exact opposite of voluntary
renunciation; it is involuntary and temporary, and involves only the actual delivery of service,
not the title to the office. The easy conclusion therefore is that they are, by nature, different and
non-comparable.
But beyond the obvious comparison of their respective natures is the more important
consideration of how they affect the three-term limit rule.
Voluntary renunciation, while involving loss of office and the total incapacity to render service,
is disallowed by the Constitution as an effective interruption of a term. It is therefore not
allowed as a mode of circumventing the three-term limit rule.
Preventive suspension, by its nature, does not involve an effective interruption of a term and
should therefore not be a reason to avoid the three-term limitation. It can pose as a threat,
however, if we shall disregard its nature and consider it an effective interruption of a term. Let it
be noted that a preventive suspension is easier to undertake than voluntary renunciation, as it
does not require relinquishment or loss of office even for the briefest time. It merely requires an
easily fabricated administrative charge that can be dismissed soon after a preventive suspension
has been imposed. In this sense, recognizing preventive suspension as an effective interruption of
a term can serve as a circumvention more potent than the voluntary renunciation that the
Constitution expressly disallows as an interruption.
Renunciation of Filipino citizenship must be under oath.
Q Teodora Sobejana-Condon, a Filipino citizenship acquired Australian citizenship. In
2006, she filed a renunciation of Australian citizenship but it was not under oath contrary
to the mandate of Section 5(2) of RA 9225. Then, she filed her certificate of candidacy and
was elected. Is she qualified to run for public office? Explain.
Answer: No. The requirement that the renunciation of her foreign citizenship must be under oath
is mandatory.
The language of Section 5(2) is free from any ambiguity. In Lopez v. COMELEC, we declared
its categorical and single meaning: a Filipino American or any dual citizen cannot run for any
elective public position in the Philippines unless he or she personally swears to a renunciation of
all foreign citizenship at the time of filing the certificate of candidacy. We also expounded on the
form of the renunciation and held that to be valid, the renunciation must be contained in an
affidavit duly executed before an officer of the law who is authorized to administer an oath
stating in clear and unequivocal terms that affiant is renouncing all foreign citizenship.
The foreign citizenship must be formally rejected through an affidavit duly sworn before an
officer authorized to administer oath. (Teodora Sobejana-Condon v. COMELEC, et al., G.R. No.
198742, August 10, 2012, Reyes, J, citing De Guzman v. COMELEC, G.R. No. 180048, June
19, 2009, 590 SCRA 149).
In Jacot v. Dal, when we held that Filipinos re-acquiring or retaining their Philippine citizenship
under R.A. No. 9225 must explicitly renounce their foreign citizenship if they wish to run for
elective posts in the Philippines, thus:
The law categorically requires persons seeking elective public office, who either retained their
Philippine citizenship or those who reacquired it, to make a personal and sworn renunciation of
any and all foreign citizenship before a public officer authorized to administer an oath
simultaneous with or before the filing of the certificate of candidacy.
Hence, Section 5(2) of Republic Act No. 9225 compels naturalborn
Filipinos, who have been naturalized as citizens of a foreign country, but who reacquired or
retained their Philippine citizenship (1) to take the oath of allegiance under Section 3 of Republic
Act No. 9225, and (2) for those seeking elective public offices in the Philippines, to additionally
execute a personal and sworn renunciation of any and all foreign citizenship before an authorized
public officer prior or simultaneous to the filing of their certificates of candidacy, to qualify as
candidates in Philippine elections.
T]he intent of the legislators was not only for Filipinos reacquiring or retaining their Philippine
citizenship under Republic Act No. 9225 to take their oath of allegiance to the Republic of the
Philippines, but also to explicitly renounce their foreign citizenship if they wish to run for
elective posts in the Philippines. To qualify as a candidate in Philippine elections, Filipinos must
only have one citizenship, namely, Philippine citizenship.
Q She contended that the requirement that the renunciation must be under oath is a mere
formal requirement. Is the contention correct? Explain.
Answer: No, it is a mandatory requirement.
The sworn renunciation of foreign citizenship must be deemed a formal requirement only with
respect to the re-acquisition of ones status as a natural-born Filipino so as to override the effect
of the principle that natural-born citizens need not perform any act to perfect their citizenship.
Never was it intended that those who re-acquire their Filipino citizenship and thereafter run for
public office has the option of executing an unsworn affidavit of renunciation.
To hold the oath to be a mere pro forma requirement is to say that it is only for ceremonial
purposes; it would also accommodate a mere qualified or temporary allegiance from government
officers when the Constitution and the legislature clearly demand otherwise. (Teodora Sobejan-
Condon v. COMELEC, et al., supra.).
Section 5 was intended complement Section 18, Article XI of the Constitution on public officers
primary accountability of allegiance and loyalty, which provides:
Sec. 18. Public officers and employees owe the State and this Constitution allegiance at all
times and any public officer or employee who seeks to change his citizenship or acquire the
status of an immigrant of another country during his tenure shall be dealt with by law.
An oath is a solemn declaration, accompanied by a swearing to God or a revered person or thing,
that ones statement is true or that one will be bound to a promise. The person making the oath
implicitly invites punishment if the statement is untrue or the promise is broken. The legal effect
of an oath is to subject the person to penalties for perjury if the testimony is false. (Blacks Law
Dictionary, 8
th
Edition, p. 1101).
Indeed, the solemn promise, and the risk of punishment attached to an oath ensures truthfulness
to the prospective public officers abandonment of his adopted state and promise of absolute
allegiance and loyalty to the Republic of the Philippines.
Q Petitioner contended that the Australian Citizenship Act of 1948, under which she is
already deemed to have lost her citizenship, is entitled to judicial notice. Is the contention
correct? Why?
Answer: No. Foreign laws are not a matter of judicial notice. Like any other fact, they must be
alleged and proven. (Manufacturers Hanover Trust Co. v. Guerrero, 445 Phil. 770 (2003)). To
prove a foreign law, the party invoking it must present a copy thereof and comply with Sections
24 and 25 of Rule 132 of the Revised Rules of Court which reads:
Sec. 24. Proof of official record. The record of public documents referred to in paragraph (a) of
Section 19, when admissible for anypurpose, may be evidenced by an official publication thereof
or by a copyattested by the officer having the legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the Philippines, with a certificate that such officer has
the custody. If the office in which the record is kept is in a foreign country, the certificate
may be made by asecretary of the embassy or legation, consul general, consul, viceconsul,
or consular agent or by any officer in the foreign service of the Philippines stationed in the
foreign country in which the record is kept, and authenticated by the seal of his office.
(Emphasis ours)
Sec. 25. What attestation of copy must state. Whenever a copy of a document or record is
attested for the purpose of the evidence, the attestation must state, in substance, that the copy is a
correct copy of the original, or a specific part thereof, as the case may be. The attestation must be
under the official seal of the attesting officer, if there be any, or if he be the clerk of a court
having a seal, under the seal of such court.
The Court has admitted certain exceptions to the above rules and held that the existence of a
foreign law may also be established through: (1) a testimony under oath of an expert witness
such as an attorney-at-law in the country where the foreign law operates wherein he quotes
verbatim a section of the law and states that the same was in force at the time material to the
facts at hand; and (2) likewise, in several naturalization cases, it was held by the Court that
evidence of the law of a foreign country on reciprocity regarding the acquisition of citizenship,
although not meeting the prescribed rule of practice, may be allowed and used as basis for
favorable action, if, in the light of all the circumstances, the Court is satisfied of the authenticity
of the written proof offered. Thus, in a number of decisions, mere authentication of the Chinese
Naturalization Law by the Chinese Consulate General of Manila was held to be a competent
proof of that law. (Teodora Sobejana-Condon v. COMELEC, et al., supra.; citing Asiavest Ltd.
v. CA, 357 Phil. 536 (1998)).
Q Is not the act of running for public office an effective act of renunciation of foreign
citizenship, thus, a person can run for public office? Explain.
Answer: No. Her act of running for public office does not suffice to serve as an effective
renunciation of her Australian citizenship. While the Court has previously declared that the filing
by a person with dual citizenship of a certificate of candidacy is already considered a
renunciation of foreign citizenship, (Valles v. COMELEC, 392 Phil. 327 (2000); Mercado v.
Manzano, 367 Phil. 132 (1999) such ruling was already adjudged superseded by the enactment of
R.A. No. 9225 on August 29, 2003 which provides for the additional condition of a personal and
sworn renunciation of foreign citizenship. (Jacot v. Dal, supra.).
Q What is the effect of her winning in the election? Explain.
Answer: The fact that she won the elections can not cure the defect of her candidacy. Garnering
the most number of votes does not validate the election of a disqualified candidate because the
application of the constitutional and statutory provisions on disqualification is not a matter of
popularity. (Lopez v. COMELEC, G.R. No. 182701, July 23, 2008, 559 SCRA 696; Teodora
Sobejana-Condon v. COMELEC, et al., supra.).
Note:
In fine, R.A. No. 9225 categorically demands natural-born Filipinos who re-acquire their
citizenship and seek elective office, to execute a personal and sworn renunciation of any and all
foreign citizenships before an authorized public officer prior to or simultaneous to the filing of
their certificates of candidacy, to qualify as candidates in Philippine elections. The rule applies to
all those who have re-acquired their Filipino citizenship, like petitioner, without regard as to
whether they are still dual citizens or not. It is a pre-requisite imposed for the exercise of the
right to run for public office.
Stated differently, it is an additional qualification for elective office specific only to Filipino
citizens who re-acquire their citizenship under Section 3 of R.A. No. 9225. It is the operative act
that restores their right to run for public office. The petitioners failure to comply therewith in
accordance with the exact tenor of the law, rendered ineffectual the Declaration of Renunciation
of Australian Citizenship she executed on September 18, 2006. As such, she is yet to regain her
political right to seek elective office. Unless she executes a sworn renunciation of her Australian
citizenship, she is ineligible to run for and hold any elective office in the Philippines.
Q RA 10147, otherwise known as the General Appropriations Act (GAA) allocated P21B
for the Conditional Cash Transfer Program (CCTP) headed by the DSWD. Such project
provides cash grants to extreme poor households to allow the members of the families to
meet certain human development goals. While admitting the wisdom of the CCTP,
petitioners took exception to the manner of its implementation thru the DSWD instead of
the LGUs to which the responsibility and functions of delivering social welfare have been
developed to the LGU under RA 7160. They contended that direct budgeting should be
made in favor of the LGUs that would enhance the delivery of basic services. The practice
would result in the recentralization of basic government functions which is contrary to the
precepts of local autonomy and the avowed policy of descentralization. Rule on the
contention.
Answer: The contention is not correct. It is true that the essence of this express reservation of
power by the national government is that, unless an LGU is particularly designated as the
implementing agency, it has no power over a program for which funding has been provided by
the national government under the annual general appropriations act, even if the program
involves the delivery of basic services within the jurisdiction of the LGU.
As held in Ganzon v. Court of Appeals, G.R. Nos. 93252 & 95245, August 5, 1991, 200 SCRA
271 that while it is through a system of decentralization that the State shall promote a more
responsive and accountable local government structure, the concept of local autonomy does not
imply the conversion of local government units into mini-states. With local autonomy, the
Constitution did nothing more than to break up the monopoly of the national government over
the affairs of the local government and, thus, did not intend to sever the relation of partnership
and interdependence between the central administration and local government units. In
Pimentel v. Aguirre, the Court defined the extent of the local governments autonomy in terms of
its partnership with the national government in the pursuit of common national goals, referring to
such key concepts as integration and coordination. Thus:
Under the Philippine concept of local autonomy, the national government has not completely
relinquished all its powers over local governments, including autonomous regions. Only
administrative powers over local affairs are delegated to political subdivisions. The purpose of
the delegation is to make governance more directly responsive and effective at the local
levels. In turn, economic, political and social development at the smaller political units are
expected to propel social and economic growth and development. But to enable the country to
develop as a whole, the programs and policies effected locally must be integrated and
coordinated towards a common national goal. Thus, policy-setting for the entire country still lies
in the President and Congress. (Pimentel, Jr., et al. v. Ochoa, et al., G.R. No. 185770, July 17,
2012).
Certainly, to yield unreserved power of governance to the local government unit as to preclude
any and all involvement by the national government in programs implemented in the local level
would be to shift the tide of monopolistic power to the other extreme, which would amount to a
decentralization of power explicated in Limbona v. Mangelin, as beyond our constitutional
concept of autonomy, thus:
Now, autonomy is either decentralization of administration or decentralization of power. There
is decentralization of administration when the central government delegates administrative
powers to political subdivisions in order to broaden the base of government power and in the
process to make local governments more responsive and accountable and ensure their fullest
development as self-reliant communities and make them more effective partners in the pursuit of
national development and social progress. At the same time, it relieves the central government
of the burden of managing local affairs and enables it to concentrate on national concerns. The
President exercises general supervision over them, but only to ensure that local affairs are
administered according to law. He has no control over their acts in the sense that he can
substitute their judgments with his own.
Decentralization of power, on the other hand, involves an abdication of political power in the
[sic] favor of local governments [sic] units declared to be autonomous. In that case, the
autonomous government is free to chart its own destiny and shape its future with minimum
intervention from central authorities. According to a constitutional
author, decentralization of power amounts to selfimmolation, since in that event, the a
utonomous government becomes accountable not to the central authorities but to its
constituency.
Indeed, a complete relinquishment of central government powers on the matter of providing
basic facilities and services cannot be implied as the Local Government Code itself weighs
against it. The national government is,
thus, not precluded from taking a direct hand in the formulation and implementation of
national development programs especially where it is implemented locally in coordination
with the LGUs concerned.
Every law has in its favor the presumption of constitutionality, and to justify
its nullification, there must be a clear and unequivocal breach of the Constitution, not a
doubtful and argumentative one. Petitioners have failed to discharge the burden of proving the
invalidity of the provisions under the GAA of 2011. The allocation of
a P21 billion budget for an intervention
program formulated by the national government itself but implemented in partnership
with the local government units to achieve the common national goal development and
social progress can by no means be an encroachment upon the autonomy of local
governments. (Pimentel, Jr., et al. v. Ochoa, et al., G.R. No. 195770, July 17, 2012).
Vice-Mayor is included in computing the quorum.
Q Petitioners alleged that Atty. Rex Rojos appointment as Sangguniang Panlungsod
Secretary is void. They maintained that respondents irrevocable resignation as
aSangguniang Panlungsod member was not deemed accepted during the regular session of
the Sangguniang Panlungsodof La Carlota City, Negros Occidental for lack of quorum.
Consequently, respondent was still an incumbent
regular Sangguniang Panlungsod member when then Vice Mayor Jalandoon appointed
him as Sangguniang Panlungsod Secretary on 18 March 2004, which contravenes Section 7,
Article IX-B of the Constitution.
They contended that the vice-mayor, as presiding officer of the Sangguniang Panlungsod,
should not be counted in determining whether a quorum exists. Excluding the vice-mayor,
there were only six (6) out of the twelve (12) members of the Sangguniang Panlungsod who
were present on 17 March 2004. Since the required majority of seven (7) was not reached
to constitute a quorum, then no business could have validly been transacted on that day
including the acceptance of respondents irrevocable resignation.
On the other hand, Atty. Rojo maintained that the Sangguniang Panlungsod consists of the
presiding officer, ten (10) regular members, and two (2) ex-officio members, or a total of
thirteen (13) members, hence there was a quorum as the Vice-Mayor should be included in
the computation of the quorum. Whose contention is correct? Explain.
Answer: The contention of Atty. Rojo is correct. The Vice-Mayor is a member of the
Sanggunian, hence, he should be included in the computation of the quorum.
RA 7160 clearly states that the Sangguniang Panlungsod 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. Blacks 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. (La Carlota City,
Negros Occidental, etc. v. Atty. Rex Rojo, G.R. No. 181367, April 24, 2012, Carpio, J).
Note:
In the 2004 case of Zamora v. Governor Caballero, 464 Phil. 471 (2004) the Court interpreted
Section 53 of RA 7160 to mean that the entire membership must be taken into account in
computing the quorum of the sangguniang panlalawigan. The Court held:
Quorum is defined as that number of members of a body which, when legally assembled in
their proper places, will enable the body to transact its proper business or that number which
makes a lawful body and gives it power to pass upon a law or ordinance or do any valid
act. Majority, when required to constitute a quorum, means the number greater than half or
more than half of any total. In fine, the entire membership must be taken into account in
computing the quorum of the sangguniang panlalawigan, for while the constitution merely states
that majority of each House shall constitute a quorum, Section 53 of the LGC is more exacting
as it requires that the majority of all members of the sanggunian . . . elected and qualified shall
constitute a quorum.
In the same manner, a quorum of the Sangguniang Panlungsod should be computed based on the
total composition of the Sangguniang Panlungsod. In this case, theSangguniang Panlungsod of
La Carlota City, Negros Occidental is composed of the presiding officer, ten (10) regular
members, and two (2) ex-officio members, or a total of thirteen (13) members. A majority of the
13 members of the Sangguniang Panlungsod, or at least seven (7) members, is needed to
constitute a quorum to transact official business. Since seven (7) members (including the
presiding officer) were present on the 17 March 2004 regular session of
the Sangguniang Panlungsod, clearly there was a quorum such that the irrevocable resignation of
respondent was validly accepted. (La Carlota City, etc. v. Atty. Rex Rojo, G.R. No. 181367,
April 24, 2012, Carpio, J).
Political Law
NATIONAL PATRIMONY
Q A foreigner and a Filipino got married. They acquired real properties, but when their
marriage was annulled resulting in the dissolution of their conjugal partnership, the
foreigner contended that he is entitled to a share of the real properties emphasizing that the
money used in the acquisition of the same came from his own funds but registered under
the name of his wife because of the constitutional prohibition against foreign ownership. Is
the contention correct? Explain.
Answer: No. 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 t 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).
Q He contended that he is entitled to reimbursement of the value of the parcels of land. Is
his contention correct? Why?
Answer: No. He cannot seek reimbursement on the ground of equity where it is clear that he
willingly and knowingly bought the properties despite the prohibition against foreign ownership
of land in the Philippines. In In Re: Petition for Separation of Property Elena Buenaventura
Muller vs. Helmut Muller, G.R. 149615, August, 29, 2006, 500 SCRA 65, it was held that the
time-honored principle is that he who seeks equity must do equity, and he who comes into equity
must come with clean hands. Conversely stated, he who has done inequity shall not be accorded
equity. Thus, a litigant may be denied relief by a court of equity on the ground that his conduct
has been inequitable, unfair and dishonest, or fraudulent, or deceitful. (UP v. Catungal, J., 338
Phil. 728 (1997); Beumer v. Amores, G.R. No. 195670, December 3, 2012).
Even on grounds of equity, he is not entitled to reimbursement.
In any event, the Court cannot, even on the grounds of equity, grant reimbursement to petitioner
given that he acquired no righty whatsoever over the subject properties by virtue of its
unconstitutional purchase. It is well-established that equity as a rule will follow the law and will
not permit that to be done indirectly which, because of public policy, cannot be done directly.
(Frenzel v. Catito, G.R. No. 143958, July 11, 2003, 406 SCRA 55). Surely, a contract that
violates the Constitution and the law is null and void, vests no rights, creates no obligations and
produces no legal effect at all. Corollary thereto, under Article 1412 of the Civil Code, petitioner
cannot have the subject properties deeded to him or allow him to recover the money he had spent
for the purchase thereof. The law will not aid either party to an illegal contract or agreement; it
leaves the parties where it finds them. Indeed, one cannot salvage any rights from an
unconstitutional transaction knowingly entered into.
Neither can the Court grant petitioners claim for reimbursement on the basis of unjust
enrichment. As held in Frenzel v. Catito, a case also involving a foreigner seeking monetary
reimbursement for money spent on
purchase of Philippine land, the provision on unjust enrichment does not apply if the action is
proscribed by the Constitution, to wit:
Futile, too, is petitioners reliance on Article 22 of the New Civil Code which reads:
Art. 22. Every person who through an act of performance by another, or any other means,
acquires or comes into possession of something at the expense of the latter without just or legal
ground, shall return the same to him.
The provision is expressed in the maxim: "MEMO CUM ALTERIUS DETER DETREMENTO
PROTEST" (No person should unjustly enrich himself at the expense of another). An action for
recovery of what has been paid without just cause has been designated as an accion in rem verso.
This provision does not apply if, as in this case, the action is proscribed by the Constitution or by
the application of the pari delicto doctrine. It may be unfair and unjust to bar the petitioner from
filing an accion in rem verso over the subject properties, or from recovering the money he paid
for the said properties, but, as Lord Mansfield stated in the early case of Holman v. Johnson:
"The objection that a contract is immoral or illegal as between the plaintiff and the defendant,
sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the
objection is ever allowed; but it is founded in general principles of policy, which the defendant
has the advantage of, contrary to the real justice, as between him and the plaintiff." (Marissey v.
Bolonga, 123 2d 537 (1960)).
Nor would the denial of his claim amount to an injustice based on his foreign citizenship.35
Precisely, it is the Constitution itself which demarcates the rights of citizens and non-citizens in
owning Philippine land. To be sure, the constitutional ban against foreigners applies only to
ownership of Philippine land and not to the improvements built thereon. Needles to state, the
purpose of the prohibition is to conserve the national patrimony. (Krivenko v. Register of Deeds,
79 Phil. 461 (1947)) and it is this policy which the Court is duty0bound to protect.
Political Law
PARTY-LIST
Party list organization that advocates violence cannot be accredited.
Q MAGDALO sought registration and accreditation as a Party-List Organization but it
was denied by the COMELEC due to its advocacy of the use of force or violence. The
COMELEC took into consideration the circumstances surrounding the Oakwood standoff.
MAGDALO claimed that it did not resort to violence when it took over Oakwood because
(a) no one, either civilian or military, was held hostage; (b) its members evacuated the
guests and staff of the hotel; and (c) not a single shot was fired during the incident. Is the
contention of MAGDALO correct? Why?
Answer: No. Under Article IX-C, Section 2(5) of the 1987 Constitution, parties, organizations
and coalitions that seek to achieve their goals through violence or unlawful means shall be
denied registration. This disqualification is reiterated in Section 61 of B.P. 881, which provides
that no political party which seeks to achieve its goal through violence shall be entitled to
accreditation.
The assertions of MAGDALO that no one was held hostage or that no shot was fired do not
mask its use of impelling force to take over and sustain the occupation of Oakwood. Neither does
its express renunciation of the use of force, violence and other unlawful means in its Petition for
Registration and Program of Government obscure the actual circumstances surrounding the
encounter. The deliberate brandishing of military power, which included the show of force, use
of full battle gear, display of ammunitions, and use of explosive devices, engendered an alarming
security risk to the public. At the very least, the totality of these brazen acts fomented a threat of
violence that preyed on the vulnerability of civilians. Hence, the COMELEC did not err in
denying accreditation. (Magdalo Para sa Pagbabago v. COMELEC, G.R. No. 190793, June 19,
2012, Sereno, J).
Effect of subsequent grants of amnesty.
Q After the resolution denying the accreditation of MAGDALO as a party-list
organization, the members were granted amnesty. State the effect of such grant of amnesty.
Explain.
Answer: It has no effect on the accreditation because the amnesty was a mere supervening fact
which could not change the resolution. This is despite the fact that the Court took judicial notice
of the grant of amnesty.
In People v. Patriarca, 395 Phil. 690 (2000), citing People v. Casido, 336 Phil. 344 (1997), the
concept of amnesty was once again explained, thus:
Amnesty commonly denotes a general pardon to rebels for their treason or other high political
offenses, or the forgiveness which one sovereign grants to the subjects of another, who have
offended, by some breach, the law of nations. Amnesty looks backward, and abolishes and
puts into oblivion, the offense itself; it so overlooks and obliterates the offense with which
he is charged, that the person released by amnesty stands before the law precisely as
though he had committed no offense.
x x x x x x x x x
In the case of People vs. Casido, the difference between pardon and amnesty is given:
Pardon is granted by the Chief Executive and as such it is a private act which must be pleaded
and proved by the person pardoned, because the courts take no notice thereof; while amnesty by
Proclamation of the Chief Executive with the concurrence of Congress, is a public act of
which the courts should take judicial notice. x x x
Political Law
POLICE POWER
Q Philippine Association of Service Exporters, Inc. (PASEI) filed a petition for
declaratory relief and prohibition with prayer for issuance of TRO and writ of preliminary
injunction before the RTC of Manila, seeking to annul Section 6,7, and 9 of R.A. 8042,
(otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995, as
amended) for being unconstitutional .The RTC of Manila declared Section 6
unconstitutional on the ground that its definition of illegal recruitment is vague as it fails
to distinguish between licensed and non-licensed recruiters and for that reason gives undue
advantage to the non-licensed recruiters in violation of the right to equal protection of
those that operate with government licenses or authorities. It also ruled that due to its
sweeping application of penalties, it is unconstitutional. Is the ruling of the court correct?
Why?
Answer: No. Illegal recruitment as defined in Section 6 is clear and unambiguous and,
contrary to the RTCs finding, actually makes a distinction between licensed and non-licensed
recruiters. By its terms, persons who engage in canvassing, enlisting, contracting, transporting,
utilizing, hiring, or procuring workers without the appropriate government license or authority
are guilty of illegal recruitment whether or not they commit the wrongful acts enumerated in that
section. On the other hand, recruiters who engage in the canvassing, enlisting, etc. of OFWs,
although with the appropriate government license or authority, are guilty of illegal recruitment
only if they commit any of the wrongful acts enumerated in Section 6.
In fixing uniform penalties for each of the enumerated acts under Section 6, Congress was within
its prerogative to determine what individual acts are equally reprehensible, consistent with the
State policy of according full protection to labor, and deserving of the same penalties. It is not
within the power of the Court to question the wisdom of this kind of choice. Notably, this
legislative policy has been further stressed in July 2010 with the enactment of R.A. 1002212
which increased even more the duration of the penalties of imprisonment and the amounts of fine
for the commission of the acts listed under Section 7.
Obviously, in fixing such tough penalties, the law considered the unsettling fact that OFWs must
work outside the countrys borders and beyond its immediate protection. The law must,
therefore, make an effort to somehow protect them from conscienceless individuals within its
jurisdiction who, fueled by greed, are willing to ship them out without clear assurance that their
contracted principals would treat such OFWs fairly and humanely.
As held in People v. Ventura, 114 Phil. 162 (1962) the State under its police power may
prescribe such regulations as in its judgment will secure or tend to secure the general welfare of
the people, to protect them against the consequence of ignorance and incapacity as well as of
deception and fraud. Police power is that inherent and plenary power of the State which
enables it to prohibit all things hurtful to the comfort, safety, and welfare of society. (Hon.
Patricia Sto. Tomas, et al. v. Salac, et al., G.R. No. 152642, & companion cases).
Political Law
PUBLIC OFFICERS
Q In a case, it was contended that the Ombudsman in dismissing him from service
disregarded Section 13, subparagraph 3, Article XI of the Constitution as well as Section
15(3) of RA No. 6770, which only vests in the Ombudsman the power to recommend the
removal of a public official or employee. Is the contention correct? Why?
Answer: No. 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 Ombudsmans 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).
Probationary employee is entitled to security of tenure.
Q Under Civil Service rules, the first six months of service following a permanent
appointment shall be probationary in nature, and the probationer may be dropped from
the service for unsatisfactory conduct or want of capacity anytime before the expiration of
the probationary period.
In case, the CSC was of the position that a civil service employee does not enjoy
security of tenure during his 6-month probationary period. It submitted that an employees
security of tenure starts only after the probationary period. Specifically, it argued that an
appointee under an original appointment cannot lawfully invoke right to security of tenure
until after the expiration of such period and provided that the appointee has not been
notified of the termination of service or found unsatisfactory conduct before the expiration
of the same. Is the contention correct? Why?
Answer: No. The CSC position is contrary to the Constitution and the Civil Service Law
itself. Section 3 (2) Article 13 of the Constitution guarantees the rights of all workers not just in
terms of self-organization, collective bargaining, peaceful concerted activities, the right to strike
with qualifications, humane conditions of work and a living wage but also to security of tenure,
and Section 2(3), Article IX-B is emphatic in saying that, "no officer or employee of the civil
service shall be removed or suspended except for cause as provided by law."
Consistently, Section 46 (a) of the Civil Service Law provides that no officer or employee in
the Civil Service shall be suspended or dismissed except for cause as provided by law after
due process.
Our Constitution, in using the expressions all workers and no officer or employee, puts no
distinction between a probationary and a permanent or regular employee which means that both
probationary and permanent employees enjoy security of tenure. Probationary employees enjoy
security of tenure in the sense that during their probationary employment, they cannot be
dismissed except for cause or for failure to qualify as regular employees. (CSC v. Magnaye, Jr.,
G.R. No. 183337, April 23, 2010). This was clearly stressed in the case ofLand Bank of the
Philippines v. Rowena Paden, G.R. No. 157607, July 7, 2009, it was said:
To put the case in its proper perspective, we begin with a discussion on the respondents right to
security of tenure. Article IX (B), Section
2(3) of the 1987 Constitution expressly provides that:
"[n]o officer or employee of the civil service shall be removed or suspended except for cause
provided by law." At the outset, we emphasize that the aforementionedconstitutional
provision does not distinguish between a regular employee and a probationary employee. In
the recent case of Daza v. Lugo, it was ruled that:
The Constitution provides that "[N]o officer or employee of the civil service shall be removed or
suspended except for cause provided by law." Sec. 26, par. 1, Chapter 5, Book V, Title I-A of the
Revised Administrative Code of 1987 states:
All such persons (appointees who meet all the requirements of the position) must serve a
probationary period of six months following their original appointment and shall undergo a
thorough character investigation in order to acquire permanent civil service status. A probationer
may be dropped from the service for unsatisfactory conduct or want of capacity any time before
the expiration of the probationary period; Provided, That such action is appealable to the
Commission.
Thus, the services of respondent as a probationary employee may only be terminated for a
just cause, that is, unsatisfactory conduct or want of capacity.
x x x.
X x x the only difference between regular and probationary employees from the perspective of
due process is that the latters termination can be based on the wider ground of failure to comply
with standards made known to them when they became probationary employees. (G.R. No.
168999, April 30, 2008, 553 SCRA 532).
The constitutional and statutory guarantee of security of tenure is extended to both those in the
career and non-career service positions, and the cause under which an employee may be removed
or suspended must naturally have some relation to the character or fitness of the officer or
employee, for the discharge of the functions of his office, or expiration of the project for which
the employment was extended. (Jocom v. Regalado, G.R. No. 77373, August 22, 1991, 201
SCRA 73). Further, well-entrenched is the rule on security of tenure that such an appointment is
issued and the moment the appointee assumes a position in the civil service under a completed
appointment, he acquires a legal, not merely equitable right (to the position), which is protected
not only by statute, but also by the Constitution [Article IX-B, Section 2, paragraph (3)] and
cannot be taken away from him either by revocation of the appointment, or by removal, except
for cause, and with previous notice and hearing. (Aquino v. CSC, G.R. No. 92403, April 22,
1992, 208 SCRA 240).
While the CSC contends that a probationary employee does not enjoy security of tenure, its
Omnibus Rules recognizes that such an employee cannot be terminated except for cause. Note
that in the Omnibus Rules it cited, a decision or order dropping a probationer from the service for
unsatisfactory conduct or want of capacity anytime before the expiration of the probationary
period is appealable to the Commission. This can only mean that a probationary employee
cannot be fired at will. (CSC v. Magnaye, Jr., G.R. No. 183337, April 23, 2010).
Note:
In support of its position that an appointee cannot lawfully invoke the right to a security of tenure
during the probationary period, petitioner CSC banked on the case of Lucero v. Court of Appeals
and Philippine National Bank. (G.R. No. 170093, April 29, 2009). This case is, however, not
applicable because it refers to a private entity where the rules of employment are not exactly
similar to those in the government service.
Political Law
WRIT OF AMPARO
The writ of amparo is an independent and summary remedy that provides rapid judicial relief to
protect the peoples right to life, liberty and security. (Sec. 1, Rule on the Writ of Amparo;
Rodriguez v. Arroyo, G.R. Nos. 191805 & 193160, November 15, 2011). Having been originally
intended as a response to the alarming cases of extrajudicial killings and enforced disappearances
in the country, it serves both preventive and curative roles to address the said human rights
violations. It is preventive in that it breaks the expectation of impunity in the commission of
these offenses, and it is curative in that it facilitates the subsequent punishment of perpetrators by
inevitably leading to subsequent investigation and action. (Sec. of National Defense v. Manalo,
G.R. No. 180906, October 7, 2005, 568 SCRA 1).
The writ of amparo is confined only to cases of extrajudicial killings and enforced
disappearances, or to threats thereof. (Reyes v. CA, G.R. No. 182161, December 3, 2009, 606
SCRA 580). Considering that this remedy is aimed at addressing these serious violations of or
threats to the right to life, liberty and security, it cannot be issued on amorphous and uncertain
grounds, or in cases where the alleged threat has ceased and is no longer imminent or
continuing. (Tapaz v. Del Rosario, G.R. No. 182484, June 17, 2008, 554 SCRA 768). Instead, it
must be granted judiciously so as not to dilute the extraordinary and remedial character of the
writ, thus:
The privilege of the writ of amparo is envisioned basically to protect and guarantee the rights to
life, liberty, and security of persons, free from fears and threats that vitiate the quality of this
life. It is an extraordinary writ conceptualized and adopted in light of and in response to the
prevalence of extra-legal killings and enforced disappearances. Accordingly, the remedy ought
to be resorted to and granted judiciously, lest the ideal sought by the Amparo Rule be
diluted and undermined by the indiscriminate filing of amparo petitions for purposes less
than the desire to secure amparo reliefs and protection and/or on the basis of
unsubstantiated allegations. (Lozada, Jr., et al. v. Macapagal-Arroyo, G.R. Nos. 184379-80,
April 24, 2012).