39080206-Poli-Law-Rev-Aleitheia-Case-Digests

September 15, 2017 | Author: Katrina Calugay | Category: Identity Document, Search And Seizure, Mandamus, Public Law, Politics
Share Embed Donate


Short Description

Download 39080206-Poli-Law-Rev-Aleitheia-Case-Digests...

Description

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

FR. JOAQUIN BERNAS, S.J.

POLITICAL LAW REVIEWER SUPPLEMENT FOR 4-D ARTICLE II - DECLARATION OF PRINCIPLES AND STATE POLICIES Section 15. The State shall protect and promote the right to health of the people and instill health consciousness among them. Doctrines Some provisions of the Health Sector Reform Agenda are challenged on the ground that they violate 15, 18 of Article II; Section 1 of Article III; Sections 11 and 14 of Article XIII; and Sections 1 and 3(2) of Article XV, all of the 1987 Constitution, which directly or indirectly pertain to the duty of the State to protect and promote the people’s right to health and well-being. However, these provisions are not self-executory. Tondo Medical Center Employees v. CA. G.R. No. 167324, July 17, 2007. TONDO MEDICAL CENTER EMPLOYEES V. CA President Estrada issued Executive Order No. 102, entitled “Redirecting the Functions and Operations of the Department of Health,” which provided for the changes in the roles, functions, and organizational processes of the DOH. Under the assailed executive order, the DOH refocused its mandate from being the sole provider of health services to being a provider of specific health services and technical assistance, as a result of the devolution of basic services to local government units. Issue: WON EO102 is constitutional? Held: YES. Petitioners allege that the HSRA should be declared void, since it runs counter to the aspiration and ideals of the Filipino people as embodied in the Constitution. They claim that the HSRA’s policies of fiscal autonomy, income generation, and revenue enhancement violate Sections 5, 9, 10, 11, 13, 15 and 18 of Article II, Section 1 of Article III; Sections 11 and 14 of Article XIII; and Sections 1 and 3 of Article XV of the 1987 Constitution. Such policies allegedly resulted in making inaccessible free medicine and free medical services. This contention is unfounded. As a general rule, the provisions of the Constitution are considered self-executing, and do not require future legislation for their enforcement. For if they are not treated as selfexecuting, the mandate of the fundamental law can be easily nullified by the inaction of Congress. However, some provisions have already been categorically declared by this Court as non self-executing. In Basco v. Philippine Amusement and Gaming Corporation, this Court declared that Sections 11, 12, and 13 of Article II; Section 13 of Article XIII; and Section 2 of Article XIV of the 1987 Constitution are not self-executing provisions. In Tolentino v. Secretary of Finance, the Court referred to Section 1 of Article XIII and Section 2 of Article XIV of the Constitution as moral incentives to legislation, not as judicially enforceable rights. These provisions, which merely lay down a general principle, are distinguished from other constitutional provisions as non

self-executing and, therefore, cannot give rise to a cause of action in the courts; they do not embody judicially enforceable constitutional rights. Some of the constitutional provisions invoked in the present case were taken from Article II of the Constitution -- specifically, Sections 5, 9, 10, 11, 13, 15 and 18 -- the provisions of which the Court categorically ruled to be non self-executing in the aforecited case of Tañada v. Angara. Moreover, the records are devoid of any explanation of how the HSRA supposedly violated the equal protection and due process clauses that are embodied in Section 1 of Article III of the Constitution. There were no allegations of discrimination or of the lack of due process in connection with the HSRA. Since they failed to substantiate how these constitutional guarantees were breached, petitioners are unsuccessful in establishing the relevance of this provision to the petition, and consequently, in annulling the HSRA. In the remaining provisions, Sections 11 and 14 of Article XIII and Sections 1 and 3 of Article XV, the State accords recognition to the protection of working women and the provision for safe and healthful working conditions; to the adoption of an integrated and comprehensive approach to health; to the Filipino family; and to the right of children to assistance and special protection, including proper care and nutrition. Like the provisions that were declared as non selfexecutory in the cases of Basco v. Philippine Amusement and Gaming Corporation and Tolentino v. Secretary of Finance, they are mere statements of principles and policies. As such, they are mere directives addressed to the executive and the legislative departments. If unheeded, the remedy will not lie with the courts; but rather, the electorate’s displeasure may be manifested in their votes. Section 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. Doctrines The LTFRB and the DOTC cannot order owners of PUV to use CNG as an alternative to gasoline. Mandamus is available only to compel the doing of an act specifically enjoined by law as a duty. Here, there is no law that mandates the respondents LTFRB and the DOTC to order owners of motor vehicles to use CNG. Henares v. LTFRB, GR 158290, October 23, 2006. HENARES V. LTFRB Petitioners challenge this Court to issue a writ of mandamus commanding respondents LTFRB and DOTC to require PUVs to use compressed natural gas (CNG) as alternative fuel. Asserting their right to clean air, petitioners contend that the bases for their petition for a writ of mandamus to order the LTFRB to require PUVs to use CNG as an alternative fuel, lie in Section 16, Article II of the 1987 Constitution, our ruling in

TRUTH. HONOR. EXCELLENCE.

1

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

Oposa v. Factoran, Jr., and Section 4 of Republic Act No. 8749 otherwise known as the "Philippine Clean Air Act of 1999." Issue: WON LTFRB CAN BE COMPELLED TO REQUIRE PUVs TO USE CNG THROUGH A WRIT OF MANDAMUS? Held: NO. Petitioners invoke the provisions of the Constitution and the Clean Air Act in their prayer for issuance of a writ of mandamus commanding the respondents to require PUVs to use CNG as an alternative fuel. Although both are general mandates that do not specifically enjoin the use of any kind of fuel, particularly the use of CNG, there is an executive order implementing a program on the use of CNG by public vehicles. Executive Order No. 290, entitled Implementing the Natural Gas Vehicle Program for Public Transport (NGVPPT), took effect on February 24, 2004. A thorough reading of the executive order assures us that implementation for a cleaner environment is being addressed. To a certain extent, the instant petition had been mooted by the issuance of E.O. No. 290. Regrettably, however, a writ of mandamus is unavailing. Mandamus is available only to compel the doing of an act specifically enjoined by law as a duty. Here, there is no law that mandates the respondents LTFRB and the DOTC to order owners of motor vehicles to use CNG. Further, mandamus will not generally lie from one branch of government to a coordinate branch, for the obvious reason that neither is inferior to the other. The need for future changes in both legislation and its implementation cannot be preempted by orders from this Court, especially when what is prayed for is procedurally infirm. Besides, comity with and courtesy to a coequal branch dictate that we give sufficient time and leeway for the coequal branches to address by themselves the environmental problems raised in this petition. In the same manner that we have associated the fundamental right to a balanced and healthful ecology with the twin concepts of "inter-generational responsibility" and "inter-generational justice" in Oposa, where we upheld the right of future Filipinos to prevent the destruction of the rainforests, so do we recognize, in this petition, the right of petitioners and the future generation to clean air. In Oposa we said that if the right to a balanced and healthful ecology is now explicitly found in the Constitution even if the right is "assumed to exist from the inception of humankind, it is because of the well-founded fear of its framers [of the Constitution] that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not only for the present generation, but also for those to come." It is the firm belief of this Court that in this case, it is timely to reaffirm the premium we have placed on the protection of the environment in the landmark case of Oposa. Yet, as serious as the statistics are on air pollution, with the present fuels deemed toxic as they are to the environment, as fatal as these pollutants are to the health of the citizens, and urgently requiring resort to drastic measures to reduce air pollutants emitted by motor vehicles, we must admit in particular that petitioners are unable to pinpoint the law that imposes an indubitable legal duty on respondents that will justify a grant of the writ of mandamus compelling the use of CNG for public utility vehicles. It appears to us that more properly, the legislature should provide first the

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

specific statutory remedy to the complex environmental problems bared by herein petitioners before any judicial recourse by mandamus is taken.  ARTICLE III - BILL OF RIGHTS Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. Doctrines An EO ordering the closure of bus terminals in the city is an unreasonable exercise of police power. Moreover, even if the E.O. were valid, the MMD is the wrong person to carry it out since this matter has been given by law to DOTC. MMDA v. Executive Secretary, G.R. No. 170657, August 15, 2007; Lucena Grand Central Terminal, Inc. v. JAC Liner, Inc., G.R. No. 148339, February 23, 2005, 452 SCRA 174, 185. The PD that orders discontinuance of a pension of a retired military officer if he becomes a citizen of another country does not violate equal protection. Parreño v. COA, G.R. 162224 June 7, 2007 MMDA V. EXECUTIVE SECRETARY PGMA issued the E.O. “Providing for the Establishment of Greater Manila Mass Transport System.” As the E.O. noted, the primary cause of traffic congestion in Metro Manila has been the numerous buses plying the streets and the inefficient connectivity of the different transport modes; and the MMDA had “recommended a plan to decongest traffic by eliminating the bus terminals now located along major Metro Manila thoroughfares and providing more and convenient access to the mass transport system to the commuting public through the provision of mass transport terminal facilities” which plan is referred to under the E.O. as the Greater Manila Mass Transport System Project. The E.O. thus designated the MMDA as the implementing agency for the Project. Pursuant to the E.O., the Metro Manila Council (MMC), the governing board and policymaking body of the MMDA, issued Resolution No. 03-07 series of 2003 expressing full support of the Project. Recognizing the imperative to integrate the different transport modes via the establishment of common bus parking terminal areas, the MMC cited the need to remove the bus terminals located along major thoroughfares of Metro Manila. Issue: WHETHER OR NOT 179 IS CONSTITUTIONAL? Held: No, the petition fails. EO179 is null and void for being ultra vires. Petitioners submit that the real issue concerns the President’s authority to undertake or to cause the implementation of the Project. They assert that the authority of the President is derived from E.O. No. 125, “Reorganizing the Ministry of Transportation and Communications Defining its Powers and Functions and for Other Purposes,” her residual power and/or E.O. No. 292, otherwise known as the Administrative Code of 1987. They add that the E.O. is also a valid exercise of the police power.

TRUTH. HONOR. EXCELLENCE.

2

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

EO125 mandated the DOTC to be the primary policy, planning, programming, coordinating, implementing, regulating and administrative entity to promote, develop and regulate networks of transportation and communications. The grant of authority to the DOTC includes the power to establish and administer comprehensive and integrated programs for transportation and communications. Further, the Minister (now Secretary) of the DOTC is vested with the authority and responsibility to exercise the mandate given to the department. Accordingly, the DOTC Secretary is authorized to issue such orders, rules, regulations and other issuances as may be necessary to ensure the effective implementation of the law. Since, under the law, the DOTC is authorized to establish and administer programs and projects for transportation, it follows that the President may exercise the same power and authority to order the implementation of the Project, which admittedly is one for transportation. Such authority springs from the President’s power of control over all executive departments as well as the obligation for the faithful execution of the laws under Article VII, Section 17 of the Constitution. This constitutional provision is echoed in Section 1, Book III of the Administrative Code of 1987. The authority of the President to order the implementation of the Project notwithstanding, the designation of the MMDA as the implementing agency for the Project may not be sustained. It is ultra vires, there being no legal basis therefor. By designating the MMDA as the implementing agency of the Project, the President clearly overstepped the limits of the authority conferred by law, rendering E.O. No. 179 ultra vires. In light of the administrative nature of its powers and functions, the MMDA is devoid of authority to implement the Project as envisioned by the E.O; hence, it could not have been validly designated by the President to undertake the Project. It follows that the MMDA cannot validly order the elimination of respondents’ terminals. Even assuming arguendo that police power was delegated to the MMDA, its exercise of such power does not satisfy the two tests of a valid police power measure, viz: (1) the interest of the public generally, as distinguished from that of a particular class, requires its exercise; and (2) the means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. Stated differently, the police power legislation must be firmly grounded on public interest and welfare and a reasonable relation must exist between the purposes and the means. Notably, the parties herein concede that traffic congestion is a public concern that needs to be addressed immediately. But are the means employed appropriate and reasonably necessary for the accomplishment of the purpose. Are they not duly oppressive? This Court fails to see how the prohibition against the existence of respondents’ terminals can be considered a reasonable necessity to ease traffic congestion in the metropolis. On the contrary, the elimination of respondents’ bus terminals brings forth the distinct possibility and the equally harrowing reality of traffic congestion in the common parking areas, a case of transference from one site to another. Less intrusive measures such as curbing the proliferation of “colorum” buses, vans and taxis entering Metro Manila and using the streets for parking and passenger pick-up points, as respondents suggest, might

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

even be more effective in easing the traffic situation. So would the strict enforcement of traffic rules and the removal of obstructions from major thoroughfares. LUCENA TERMINAL, INC. V. JAC LINER, INC. JAC Liner, Inc. assails City Ordinance Nos. 1631 and 1778 as unconstitutional on the ground that, inter alia, the same constituted an invalid exercise of police power, an undue taking of private property, and a violation of the constitutional prohibition against monopolies. These ordinances, by granting an exclusive franchise for twenty five years, renewable for another twenty five years, to one entity for the construction and operation of one common bus and jeepney terminal facility in Lucena City, to be located outside the city proper, were professedly aimed towards alleviating the traffic congestion alleged to have been caused by the existence of various bus and jeepney terminals within the city. Respondent, who had maintained a terminal within the city, was one of those affected by the ordinances. Issue: WHETHER POLICE POWER WAS PROPERLY EXERCISED WHEN THE SUBJECT ORDINANCES WERE ENACTED? Held: NO. The ordinances assailed herein are characterized by overbreadth. They go beyond what is reasonably necessary to solve the traffic problem. Additionally, since the compulsory use of the terminal operated by petitioner would subject the users thereof to fees, rentals and charges, such measure is unduly oppressive, as correctly found by the appellate court. What should have been done was to determine exactly where the problem lies and then to stop it right there. The true role of Constitutional Law is to effect an equilibrium between authority and liberty so that rights are exercised within the framework of the law and the laws are enacted with due deference to rights. A due deference to the rights of the individual thus requires a more careful formulation of solutions to societal problems. As for petitioner’s argument that the challenged ordinances were enacted pursuant to the power of the Sangguniang Panlungsod to "[r]egulate traffic on all streets and bridges; prohibit encroachments or obstacles thereon and, when necessary in the interest of public welfare, authorize the removal of encroachments and illegal constructions in public places": Absent any showing, nay allegation, that the terminals are encroaching upon public roads, they are not obstacles. The buses which indiscriminately load and unload passengers on the city streets are. The power then of the Sangguniang Panlungsod to prohibit encroachments and obstacles does not extend to terminals. Neither are terminals public nuisances as petitioner argues. For their operation is a legitimate business which, by itself, cannot be said to be injurious to the rights of property, health, or comfort of the community. But even assuming that terminals are nuisances due to their alleged indirect effects upon the flow of traffic, at most they are nuisance per accidens, not per se. Unless a thing is nuisance per se, however, it may not be abated via an ordinance, without judicial proceedings, as was done in the case at bar.

TRUTH. HONOR. EXCELLENCE.

3

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

PARREÑO V. COA Salvador Parreño served in the AFP for 32 years. In 1982, petitioner retired, availed, and received payment, of a lump sum pension equivalent to three years pay. In 1985, he started receiving his monthly pension. He migrated to Hawaii and became a naturalized American citizen. In January 2001, the AFP stopped petitioner’s monthly pension in accordance with Section 27 of PD1638, providing that a retiree who loses his Filipino citizenship shall be removed from the retired list and his retirement benefits terminated upon loss of Filipino citizenship. Parreno then requested for reconsideration but the Judge Advocate General of the AFP denied the request. He then filed a claim before the COA for the continuance of his monthly pension. COA denied petitioner’s claim for lack of jurisdiction. Petitioner filed a motion for reconsideration. Petitioner alleged that the COA has the power and authority to incidentally rule on the constitutionality of Section 27 of PD 1638, as amended. Petitioner alleged that a direct recourse to the court would be dismissed for failure to exhaust administrative remedies. Petitioner further alleged that since his monthly pension involves government funds, the reason for the termination of the pension is subject to COA’s authority and jurisdiction. COA denied the motion. It ruled that the doctrine of exhaustion of administrative remedies does not apply if the administrative body has, in the first place, no jurisdiction over the case. COA also ruled that assuming it has jurisdiction over the claim, petitioner’s entitlement to the retirement benefits he was previously receiving must necessarily cease upon the loss of his Filipino citizenship in accordance with Section 27 of PD 1638, as amended. Issue: Whether COA has constitutionality of PD 1638?

jurisdiction

to

rule

on

the

Held: NO. Under Commonwealth Act No. 327, as amended by Presidential Decree No. 1445, money claims against the government shall be filed before the COA. The jurisdiction of the COA over money claims against the government does not include the power to rule on the constitutionality or validity of laws. The 1987 Constitution vests the power of judicial review or the power to declare unconstitutional a law, treaty, international or executive agreement, presidential decree, order, instruction, ordinance, or regulation in this Court and in all Regional Trial Courts. Petitioner’s money claim essentially involved the constitutionality of Section 27 of PD 1638, as amended. Hence, COA did not commit grave abuse of discretion in dismissing petitioner’s money claim. Petitioner submits that the COA has the authority to order the restoration of his pension even without ruling on the constitutionality of Section 27 of PD 1638, as amended. However, COA effectively denied petitioner’s claim because of the loss of his Filipino citizenship. Petitioner failed to overcome the presumption of constitutionality of Section 27 of PD 1638, as amended. Unless the provision is amended or repealed in the future, the AFP has to apply Section 27 of PD 1638, as amended.

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. Doctrines Q. EO 420 orders all government agencies and government owned and controlled corporations to streamline and harmonize their ID systems. The EO is challenged on the ground that (1) it requires legislation and (2) it violates the right to privacy. A. (1) EO 420 applies only to executive entities that issue ID cards as part of their functions under existing laws. These government entities have already been issuing ID cards even prior to EO 420. (2) EO 420 does not establish a national ID card system. EO 420 does not compel all citizens to have an ID card. EO 420 applies only to government entities that under existing laws are already collecting data and issuing ID cards as part of their governmental functions. KMU v. Director General, G.R. No. 167798, April 19, 2006. NOTE: A private entity may be held liable for illegal search under Article 32 of the Civil Code. Silahis Internatinal v. Soluta, G.R. 163087, February 20, 2006. KMU V. DIRECTOR GENERAL Under EO 420, the President directs all government agencies and government-owned and controlled corporations to adopt a uniform data collection and format for their existing identification (ID) systems. Petitioners allege that EO 420 is unconstitutional because it constitutes usurpation of legislative functions by the executive branch of the government. Furthermore, they allege that EO 420 infringes on the citizen’s right to privacy. Issues/Held: 1. WON EO 420 IS A USURPATION OF LEGISLATIVE POWER BY THE PRESIDENT. NO. The President may by executive or administrative order direct the government entities under the Executive department to adopt a uniform ID data collection and format. Under her constitutional power of control, the President can direct all government entities, in the exercise of their functions under existing laws, to adopt a uniform ID data collection and ID format to achieve savings, efficiency, reliability, compatibility, and convenience to the public. Of course, the President’s power of control is limited to the Executive branch of government and does not extend to the Judiciary or to the independent constitutional commissions. Thus, EO 420 does not apply to the Judiciary, or to the COMELEC which under existing laws is also authorized to issue voter’s ID cards. This only shows that EO 420 does not establish a national ID system because legislation is needed to establish a single ID system that is compulsory for all branches of government.

TRUTH. HONOR. EXCELLENCE.

4

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

Clearly, EO 420 is well within the constitutional power of the President to promulgate. The President has not usurped legislative power in issuing EO 420. EO 420 is an exercise of Executive power - the President’s constitutional power of control over the Executive department. EO 420 is also compliance by the President of the constitutional duty to ensure that the laws are faithfully executed. Legislative power is the authority to make laws and to alter or repeal them. In issuing EO 420, the President did not make, alter or repeal any law but merely implemented and executed existing laws. EO 420 reduces costs, as well as insures efficiency, reliability, compatibility and user-friendliness in the implementation of current ID systems of government entities under existing laws. Thus, EO 420 is simply an executive issuance and not an act of legislation. The act of issuing ID cards and collecting the necessary personal data for imprinting on the ID card does not require legislation. Private employers routinely issue ID cards to their employees. Private and public schools also routinely issue ID cards to their students. Even private clubs and associations issue ID cards to their members. The purpose of all these ID cards is simply to insure the proper identification of a person as an employee, student, or member of a club. These ID cards, although imposed as a condition for exercising a privilege, are voluntary because a person is not compelled to be an employee, student or member of a club. What require legislation are three aspects of a government maintained ID card system. First, when the implementation of an ID card system requires a special appropriation because there is no existing appropriation for such purpose. Second, when the ID card system is compulsory on all branches of government, including the independent constitutional commissions, as well as compulsory on all citizens whether they have a use for the ID card or not. Third, when the ID card system requires the collection and recording of personal data beyond what is routinely or usually required for such purpose, such that the citizen’s right to privacy is infringed. In the present case, EO 420 does not require any special appropriation because the existing ID card systems of government entities covered by EO 420 have the proper appropriation or funding. EO 420 is not compulsory on all branches of government and is not compulsory on all citizens. EO 420 requires a very narrow and focused collection and recording of personal data while safeguarding the confidentiality of such data. In fact, the data collected and recorded under EO 420 are far less than the data collected and recorded under the ID systems existing prior to EO 420. EO 420 does not establish a national ID card system. EO 420 does not compel all citizens to have an ID card. EO 420 applies only to government entities that under existing laws are already collecting data and issuing ID cards as part of their governmental functions. Every government entity that presently issues an ID card will still issue its own ID card under its own name. The only difference is that the ID card will contain only the five data specified in Section 3 of EO 420, plus the fingerprint, the agency ID number, and the common reference number which is needed for cross-verification to ensure integrity and reliability of identification. There is nothing legislative about unifying existing ID systems of all courts within the Judiciary. The same is true for government

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

entities under the Executive department. If government entities under the Executive department decide to unify their existing ID data collection and ID card issuance systems to achieve savings, efficiency, compatibility and convenience, such act does not involve the exercise of any legislative power. Thus, the issuance of EO 420 does not constitute usurpation of legislative power. 2. WON EO 420 INFRINGES ON RIGHT TO PRIVACY? NO. On its face, EO 420 shows no constitutional infirmity because it even narrowly limits the data that can be collected, recorded and shown compared to the existing ID systems of government entities. EO 420 further provides strict safeguards to protect the confidentiality of the data collected, in contrast to the prior ID systems which are bereft of strict administrative safeguards. The right to privacy does not bar the adoption of reasonable ID systems by government entities. Some one hundred countries have compulsory national ID systems, including democracies such as Spain, France, Germany, Belgium, Greece, Luxembourg, and Portugal. Other countries which do not have national ID systems, like the United States, Canada, Australia, New Zealand, Ireland, the Nordic Countries and Sweden, have sectoral cards for health, social or other public services. Even with EO 420, the Philippines will still fall under the countries that do not have compulsory national ID systems but allow only sectoral cards for social security, health services, and other specific purposes. Petitioners have not shown how EO 420 will violate their right to privacy. Petitioners cannot show such violation by a mere facial examination of EO 420 because EO 420 narrowly draws the data collection, recording and exhibition while prescribing comprehensive safeguards. Ople v. Torres is not authority to hold that EO 420 violates the right to privacy because in that case the assailed executive issuance, broadly drawn and devoid of safeguards, was annulled solely on the ground that the subject matter required legislation. As then Associate Justice, now Chief Justice Artemio V. Panganiban noted in his concurring opinion in Ople v. Torres, "The voting is decisive only on the need for appropriate legislation, and it is only on this ground that the petition is granted by this Court." EO 420 applies only to government entities that already maintain ID systems and issue ID cards pursuant to their regular functions under existing laws. EO 420 does not grant such government entities any power that they do not already possess under existing laws. In contrast, the assailed executive issuance in Ople v. Torres sought to establish a "National Computerized Identification Reference System," a national ID system that did not exist prior to the assailed executive issuance. Obviously, a national ID card system requires legislation because it creates a new national data collection and card issuance system where none existed before. In the present case, EO 420 does not establish a national ID system but makes the existing sectoral card systems of government entities like GSIS, SSS, Philhealth and LTO less costly, more efficient, reliable and user-friendly to the public. Hence, EO 420 is a proper subject of executive issuance under the President’s constitutional power of control over government entities in the Executive department, as well as under the

TRUTH. HONOR. EXCELLENCE.

5

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

President’s constitutional duty to ensure that laws are faithfully executed. SILAHIS INTERNATIONAL V. SOLUTA Marijuana was allegedly found in the Union Office by officers of the Corporation. As a result of the discovery of marijuana, and after the police conducted an investigation of the incident, a complaint against the 13 union officers for violation of Republic Act (R.A.) No. 6425 or the Dangerous Drugs Act. Soluta and his fellow union officers, together with the union, thereafter filed before the Manila RTC a Complaint for malicious prosecution and violation of their constitutional right against illegal search. Lower court adjudged that there was an illegal search and that the officers of the Corporation were civilly liable under Article 32 of the Civil Code which provides civil liability for private individuals who violate the right to be secure against unreasonable searches and seizures. Issue: WON THERE WAS AN ILLEGAL SEARCH? Held: YES, hence the petitioners are civilly liable. Petitioners had, by their own claim, already received reports in late 1987 of illegal activities allegedly undertaken in the union office and Maniego conducted surveillance of the union officers. Yet, petitioners and their companions barged into and searched the union office without a search warrant, despite ample time for them to obtain one, and notwithstanding the objection of Babay. As for petitioners’ contention that property rights justified the search of the union office, the same does not lie. For respondents, being the lawful occupants of the office, had the right to raise the question of validity of the search and seizure. While it is doctrinal that the right against unreasonable searches and seizures is a personal right which may be waived expressly or impliedly, a waiver by implication cannot be presumed. There must be clear and convincing evidence of an actual intention to relinquish it to constitute a waiver thereof.28 There must be proof of the following: (a) that the right exists; (b) that the person involved had knowledge, either actual or constructive, of the existence of such right; and, (c) that the said person had an actual intention to relinquish the right. In other words, the waiver must be voluntarily, knowingly and intelligently made. The evidence shows otherwise, however. Article 32 speaks of an officer or employee or person "directly or indirectly" responsible for the violation of the constitutional rights and liberties of another. Hence, it is not the actor alone who must answer for damages under Article 32; the person indirectly responsible has also to answer for the damages or injury caused to the aggrieved party.30 Such being the case, petitioners, together with Maniego and Villanueva, the ones who orchestrated the illegal search, are jointly and severally liable for actual, moral and exemplary damages to herein individual respondents in accordance with Article 32, in relation to Article 2219(6) and (10) of the Civil Code. Petitioners cite People v. Marti31 to support their thesis that the determinants in the validity of the constitutional right against searches and seizure cannot be invoked against private individuals. But the ruling of this Court in Marti, a criminal case, bears on the issue of whether "an act of a private individual, allegedly in violation of [one’s] constitutional rights, [may] be invoked against the State." In other words, the issue in that case was whether the evidence obtained by a private person, acting

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

in a private capacity without the participation of the State, is admissible. The issue in the present civil case, however, is whether respondent individual can recover damages for violation of constitutional rights. As reflected above, Article 32, in relation to Arts. 2219(6) and (10) of the Civil Code, allows so. Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. Doctrines Q. Petitioners assail B.P. No. 880, “The Public Assembly Act of 1985,” either in toto or in some parts, as being violative of the right of assembly and petition. They also assail the policy of “calibrated preemptive response.” A. Calibrated preemptive response has been denied by Ermita. At any rate, it has no place in the constitutional firmament. As to BP 880, it codifies the JBL Reyes case. But BP’s order to set up freedom parks must be followed and implemented within 30 days, otherwise all public parks in the local unit concerned will be considered freedom parks. Bayan v Ermita, G.R. No. 169838, April 25, 2006. Q. GMA Network aired a telecast by Rey Vidal reporting the case filed by members of the Medical Board Exams reporting alleged anomalies in the Medical Board exams. The report was based on the court pleadings but it was accompanied by an old file video of doctors in black armbands parading in front of PGH. Was the video report libelous? A. The report based on the content of the complaint was privileged. The file video did not constitute malice. Malice means the offender is prompted by ill-will or spite with intent to injure. GMA Network v. Bustos, G.R. 146848, October 17, 2006. BAYAN V. ERMITA Petitioners assail Batas Pambansa No. 880, some of them in toto and others only Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the policy of CPR. They seek to stop violent dispersals of rallies under the "no permit, no rally" policy and the CPR policy recently announced. B.P. No. 880, "The Public Assembly Act of 1985," provides: Sec. 4. Permit when required and when not required. A written permit shall be required for any person or persons to organize and hold a public assembly in a public place. However, no permit shall be required if the public assembly shall be done or made in a freedom park duly established by law or ordinance or in private property, in which case only the consent of the owner or the one entitled to its legal possession is required, or in the campus of a government-owned and operated educational institution which shall be subject to the rules and regulations of said educational institution. Political meetings or rallies held during any election campaign period as provided for by law are not covered by this Act. Sec. 5. Application requirements. All applications for a permit shall comply with the following guidelines: (a) The applications shall be in writing and shall include the names of the leaders or organizers; the purpose of such public assembly; the date, time and duration thereof, and place or streets to be used for the intended activity; and the probable number of persons participating, the transport and the public address systems to be used. (b) The application shall incorporate the duty and responsibility of the applicant under Section 8 hereof.

TRUTH. HONOR. EXCELLENCE.

6

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

(c) The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction the intended activity is to be held, at least five (5) working days before the scheduled public assembly. (d) Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or municipal mayor shall cause the same to immediately be posted at a conspicuous place in the city or municipal building. Sec. 6. Action to be taken on the application. (a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health. (b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the application was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any official acting in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant on the premises of the office of the mayor and shall be deemed to have been filed. (c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit, he shall immediately inform the applicant who must be heard on the matter. (d) The action on the permit shall be in writing and served on the applica[nt] within twenty-four hours. (e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the applicant may contest the decision in an appropriate court of law. (f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate court, its decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt of the same. No appeal bond and record on appeal shall be required. A decision granting such permit or modifying it in terms satisfactory to the applicant shall be immediately executory. (g) All cases filed in court under this section shall be decided within twenty-four (24) hours from date of filing. Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank. (h) In all cases, any decision may be appealed to the Supreme Court. (i) Telegraphic appeals to be followed by formal appeals are hereby allowed. Sec. 11. Dispersal of public assembly with permit. No public assembly with a permit shall be dispersed. However, when an assembly becomes violent, the police may disperse such public assembly as follows: (a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the attention of the leaders of the public assembly and ask the latter to prevent any possible disturbance; (b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the police or at the non-participants, or at any property causing damage to such property, the ranking officer of the law enforcement contingent shall audibly warn the participants that if the disturbance persists, the public assembly will be dispersed; (c) If the violence or disturbance prevailing as stated in the preceding subparagraph should not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a warning to the participants of the public assembly, and after allowing a reasonable period of time to lapse, shall immediately order it to forthwith disperse; (d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he violates during the assembly a law, statute, ordinance or any provision of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as amended; (e) Isolated acts or incidents of disorder or breach of the peace during the public assembly shall not constitute a ground for dispersal. Sec. 12. Dispersal of public assembly without permit. When the public assembly is held without a permit where a permit is required, the said public assembly may be peacefully dispersed. Sec. 13. Prohibited acts. The following shall constitute violations of the Act: (a) The holding of any public assembly as defined in this Act by any leader or organizer without having first secured that written permit where a permit is required from the office concerned, or the use of such permit for such purposes in any place other than those set out in said permit: Provided, however, That no person can be punished or held criminally liable for participating in or attending an otherwise peaceful assembly;

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

(b) Arbitrary and unjustified denial or modification of a permit in violation of the provisions of this Act by the mayor or any other official acting in his behalf; (c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application for a permit by the mayor or any official acting in his behalf; (d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly; (e) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public assembly; (f) Acts in violation of Section 10 hereof; (g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public assembly or on the occasion thereof: 1. the carrying of a deadly or offensive weapon or device such as firearm, pillbox, bomb, and the like; 2. the carrying of a bladed weapon and the like; 3. the malicious burning of any object in the streets or thoroughfares; 4. the carrying of firearms by members of the law enforcement unit; 5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor vehicle, its horns and loud sound systems.

STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA – “The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance. The authorities will not stand aside while those with ill intent are herding a witting or unwitting mass of people and inciting them into actions that are inimical to public order, and the peace of mind of the national community.” Petitioners contend that Batas Pambansa No. 880 is clearly a violation of the Constitution and the International Covenant on Civil and Political Rights and other human rights treaties of which the Philippines is a signatory. Issue: WON BP 880 IS CONSTITUTIONAL? Held: YES. B.P. No. 880 was enacted after this Court rendered its decision in Reyes. The provisions of B.P. No. 880 practically codify the ruling in Reyes. It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time, place and manner of the assemblies. This was adverted to in Osmeña v. Comelec where the Court referred to it as a "content-neutral" regulation of the time, place, and manner of holding public assemblies. A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies that would use public places. The reference to "lawful cause" does not make it content-based because assemblies really have to be for lawful causes, otherwise they would not be "peaceable" and entitled to protection. Neither are the words "opinion," "protesting" and "influencing" in the definition of public assembly content based, since they can refer to any subject. The words "petitioning the government for redress of grievances" come from the wording of the Constitution, so its use cannot be avoided. Finally, maximum tolerance is for the protection and benefit of all rallyists and is independent of the content of the expressions in the rally. Furthermore, the permit can only be denied on the ground of clear and present danger to public order, public safety, public convenience, public morals or public health. This is a recognized exception to the exercise of the right even under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Not every expression of opinion is a public assembly. The law refers to "rally, demonstration, march, parade, procession or any other form of mass or concerted action held in a public place." So it does not cover any and all kinds of gatherings.

TRUTH. HONOR. EXCELLENCE.

7

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition only to the extent needed to avoid a clear and present danger of the substantive evils Congress has the right to prevent. There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation. As to the delegation of powers to the mayor, the law provides a precise and sufficient standard - the clear and present danger test stated in Sec. 6(a). The reference to "imminent and grave danger of a substantive evil" in Sec. 6(c) substantially means the same thing and is not an inconsistent standard. As to whether respondent Mayor has the same power independently under Republic Act No. 7160 is thus not necessary to resolve in these proceedings, and was not pursued by the parties in their arguments. Finally, for those who cannot wait, Section 15 of the law provides for an alternative forum through the creation of freedom parks where no prior permit is needed for peaceful assembly and petition at any time. Considering that the existence of such freedom parks is an essential part of the law’s system of regulation of the people’s exercise of their right to peacefully assemble and petition, the Court is constrained to rule that after thirty (30) days from the finality of this Decision, no prior permit may be required for the exercise of such right in any public park or plaza of a city or municipality until that city or municipality shall have complied with Section 15 of the law. For without such alternative forum, to deny the permit would in effect be to deny the right. Advance notices should, however, be given to the authorities to ensure proper coordination and orderly proceedings. The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General has conceded that the use of the term should now be discontinued, since it does not mean anything other than the maximum tolerance policy set forth in B.P. No. 880. At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880, CPR serves no valid purpose if it means the same thing as maximum tolerance and is illegal if it means something else. Accordingly, what is to be followed is and should be that mandated by the law itself, namely, maximum tolerance, meaning “the highest degree of restraint that the military, police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same.” The so-called calibrated preemptive response policy has no place in our legal firmament and must be struck down as a darkness that shrouds freedom. It merely confuses our people and is used by some police agents to justify abuses. On the other hand, B.P. No. 880 cannot be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates the use of public places as to the time, place and manner of assemblies. Far from being insidious, "maximum tolerance" is for the benefit of rallyists, not the government. The delegation to the mayors of the power to issue rally "permits" is valid because it is subject to the constitutionally-sound "clear and present danger" standard. In this Decision, the Court goes even one step further in safeguarding liberty by giving local governments a deadline of 30 days within which to designate specific freedom parks as

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

provided under B.P. No. 880. If, after that period, no such parks are so identified in accordance with Section 15 of the law, all public parks and plazas of the municipality or city concerned shall in effect be deemed freedom parks; no prior permit of whatever kind shall be required to hold an assembly therein. The only requirement will be written notices to the police and the mayor’s office to allow proper coordination and orderly activities.

GMA NETWORK V. BUSTOS The Board of Medicine of the Professional Regulation Commission (PRC) conducted the physicians’ licensure examinations. Out of the total 2,835 examinees who took the examinations, 941 failed. A certain Abello and over 200 other unsuccessful examinees filed a Petition for Mandamus before the RTC of Manila to compel the PRC and the board of medical examiners to re-check and reevaluate the test papers. As news writer and reporter of petitioner GMA Network, Inc. assigned to gather news from courts, among other beats, Rey Vidal covered the filing of the mandamus petition. After securing a copy of the petition, Vidal composed and narrated the news coverage for the evening news edition of GMA’s Channel 7 Headline News. Stung by what they claim to be a false, malicious and one-sided report filed and narrated by a remorseless reporter, the herein respondents instituted a damage suit against Vidal and GMA Network, Inc., then known as the Republic Broadcasting System, Inc. They added that, as a measure to make a forceful impact on their audience, the defendants made use of an unrelated and old footage (showing physicians wearing black armbands) to make it appear that other doctors were supporting and sympathizing with the complaining unsuccessful examinees. According to the plaintiffs, the video footage in question actually related to a 1982 demonstration staged by doctors and personnel of the Philippine General Hospital (PGH) regarding wage and economic dispute with hospital management. Lower court dismissed the action, but the CA reversed and ordered respondents to pay damages. Issues/Held: (1) WON THE TELEVISED NEWS REPORT IN QUESTION ON THE FILING OF THE PETITION FOR MANDAMUS AGAINST THE RESPONDENTS IS LIBELOUS? NO. An award of damages under the premises presupposes the commission of an act amounting to defamatory imputation or libel, which, in turn, presupposes malice. Libel is the public and malicious imputation to another of a discreditable act or condition tending to cause the dishonor, discredit, or contempt of a natural or juridical person. Liability for libel attaches present the following elements: (a) an allegation or imputation of a discreditable act or condition concerning another; (b) publication of the imputation; (c) identity of the person defamed; and (d) existence of malice. Malice or ill-will in libel must either be proven (malice in fact) or may be taken for granted in view of the grossness of the imputation (malice in law). Malice is a term used to indicate the fact that the offender is prompted by personal ill-will or spite and speaks not in response to duty, but merely to injure the reputation of the person defamed. Malice implies an intention to do ulterior and unjustifiable harm. It is present when it is shown

TRUTH. HONOR. EXCELLENCE.

8

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

that the author of the libelous or defamatory remarks made the same with knowledge that it was false or with reckless disregard as to the truth or falsity thereof. Conceding hypothetically that some failing specifically against the respondents had been ascribed in that news telecast, it bears to stress that not all imputations of some discreditable act or omission, if there be any, are considered malicious thus supplying the ground for actionable libel. For, although every defamatory imputation is presumed to be malicious, the presumption does not exist in matters considered privileged. In fine, the privilege destroys the presumption. Privileged matters may be absolute or qualified. Absolutely privileged matters are not actionable regardless of the existence of malice in fact. In absolutely privileged communications, the mala or bona fides of the author is of no moment as the occasion provides an absolute bar to the action. Examples of these are speeches or debates made by Congressmen or Senators in the Congress or in any of its committees. On the other hand, in qualifiedly or conditionally privileged communications, the freedom from liability for an otherwise defamatory utterance is conditioned on the absence of express malice or malice in fact. The second kind of privilege, in fine, renders the writer or author susceptible to a suit or finding of libel provided the prosecution established the presence of bad faith or malice in fact. To this genre belongs "private communications" and "fair and true report without any comments or remarks" falling under and described as exceptions in Article 354 of the Revised Penal Code. To be sure, the enumeration under the aforecited Article 354 is not an exclusive list of conditional privilege communications as the constitutional guarantee of freedom of the speech and of the press has expanded the privilege to include fair commentaries on matters of public interest. In the case at bench, the news telecast in question clearly falls under the second kind of privileged matter, the same being the product of a simple narration of the allegations set forth in the mandamus petition of examinees Abello, et al., devoid of any comment or remark. Both the CA and the trial court in fact found the narration to be without accompanying distortive or defamatory comments or remarks. What at bottom petitioners Vidal and GMA Network, Inc., then did was simply to inform the public of the mandamus petition filed against the respondent doctors who were admittedly the then chairman and members of the Board of Medicine. It was clearly within petitioner Vidal’s job as news writer and reporter assigned to cover government institutions to keep the public abreast of recent developments therein. It must be reiterated that the courts a quo had determined the news report in question to be qualifiedly privileged communication protected under the 1987 Constitution. (2)

WON INSERTION OF OLD FILM FOOTAGE CONSTITUTES MALICE TO WARRANT DAMAGES?

NO. Contrary to the CA’s findings, the identifying charactergenerated words "file video" appeared to have been superimposed on screen, doubtless to disabuse the minds of televiewers of the idea that a particular footage is current. In the words of the trial court, the phrase "file video" was "indicated on screen purposely to prevent misrepresentation so as not to confuse the viewing public." The trial court added the

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

observation that "the use of file footage in TV news reporting is a standard practice." At any rate, the absence of the accompanying character-generated words "file video" would not change the legal situation insofar as the privileged nature of the audio-video publication complained of is concerned. For, with the view we take of the state of things, the video footage was not libel in disguise; standing without accompanying sounds or voices, it was meaningless, or, at least, conveyed nothing derogatory in nature. In all, the Court holds and so rules that the subject news report was clearly a fair and true report, a simple narration of the allegations contained in and circumstances surrounding the filing by the unsuccessful examinees of the petition for mandamus before the court, and made without malice. Thus, we find the petitioners entitled to the protection and immunity of the rule on privileged matters under Article 354 (2) of the Revised Penal Code. It follows that they too cannot be held liable for damages sought by the respondents, who, during the period material, were holding public office. Section 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. Doctrines Q. Petitioners’ counsel requested public respondent to allow Atty. Paredes to personally check the records of the intestate case. Acting on the request, the Officer-InCharge/Legal Researcher of the court advised petitioners’ counsel in writing that “per instruction of the Hon. Presiding Judge, only parties or those with authority from the parties are allowed to inquire or verify the status of a case pending in this Court,” and that they may be “allowed to go over the records of the above-entitled case upon presentation of written authority from the administratrix.” Correct? A. Decisions and opinions of a court are, of course, matters of public concern or interest. Unlike court orders and decisions, however, pleadings and other documents filed by parties to a case need not be matters of public concern or interest. They are filed for the purpose of establishing the basis upon which the court may issue an order or a judgment affecting their rights and interests. In fine, access to court records may be permitted at the discretion and subject to the supervisory and protective powers of the court, after considering the actual use or purpose for which the request for access is based and the obvious prejudice to any of the parties. Hilado et al vs. Judge Reyes, G.R. No. 163155, July 21, 2006. The refusal of the Comelec to reveal the names of the nominees for party-list seats violates the right of the people to information on maters of public concern. It also violate the rule on transparency in II,27. Ba-Ra 7941 v. Comelec, GR 177271, May 4, 2007.

TRUTH. HONOR. EXCELLENCE.

9

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

HILADO ET AL VS. JUDGE REYES Julita Campos Benedicto, the surviving spouse of the deceased Roberto S. Benedicto, was appointed Administratrix of the estate of Benedicto, and letters of administration were thereafter issued in her favor. Herein petitioners had, during the lifetime of Benedicto, filed two complaints for damages or collection of sums of money, against Roberto Benedicto et al. In the initial inventory of the estate which private respondent submitted in the case before the Manila RTC, she listed, among other liabilities of the estate, the claims of petitioners subject of the above-said Bacolod RTC cases. From January 2002 until November 2003, the Branch Clerk of Court of Branch 21 of the Manila RTC allowed petitioners through counsel Sedigo and Associates to regularly and periodically examine the records of the case and to secure certified true copies thereof. By December 2003, however, Atty. Grace Carmel Paredes, an associate of petitioners’ counsel, was denied access to the last folder-record of the case which, according to the court’s clerical staff, could not be located and was probably inside the chambers of public respondent for safekeeping. In their petition, petitioners contend that the records of the case are public records to which the public has the right to access, inspect and obtain official copies thereof, recognition of which right is enjoined under Section 7, Article III of the Constitution and Section 2, Rule 135 and Section 11, Rule 136 of the Rules of Court. Issue: WON the petitioner’s right to information was violated? Held: Insofar as the right to information relates to judicial records, the term "judicial record" or "court record" does not only refer to the orders, judgment or verdict of the courts. It comprises the official collection of all papers, exhibits and pleadings filed by the parties, all processes issued and returns made thereon, appearances, and word-for-word testimony which took place during the trial and which are in the possession, custody, or control of the judiciary or of the courts for purposes of rendering court decisions. It has also been described to include any paper, letter, map, book, other document, tape, photograph, film, audio or video recording, court reporter’s notes, transcript, data compilation, or other materials, whether in physical or electronic form, made or received pursuant to law or in connection with the transaction of any official business by the court, and includes all evidence it has received in a case. It bears emphasis that the interest of the public hinges on its right to transparency in the administration of justice, to the end that it will serve to enhance the basic fairness of the judicial proceedings, safeguard the integrity of the fact-finding process, and foster an informed public discussion of governmental affairs. Decisions and opinions of a court are of course matters of public concern or interest for these are the authorized expositions and interpretations of the laws, binding upon all citizens, of which every citizen is charged with knowledge. Justice thus requires that all should have free access to the opinions of judges and justices, and it would be against sound public policy to prevent, suppress or keep the earliest knowledge of these from the public. Unlike court orders and decisions, however, pleadings and other documents filed by parties to a case need not be matters of

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

public concern or interest. For they are filed for the purpose of establishing the basis upon which the court may issue an order or a judgment affecting their rights and interests. In thus determining which part or all of the records of a case may be accessed to, the purpose for which the parties filed them is to be considered. In intestate proceedings, the heirs file pleadings and documents for the purpose of establishing their right to a share of the estate. As for the creditors, their purpose is to establish their claim to the estate and be paid therefor before the disposition of the estate. Information regarding the financial standing of a person at the time of his death and the manner by which his private estate may ultimately be settled is not a matter of general, public concern or one in which a citizen or the public has an interest by which its legal rights or liabilities maybe affected. Granting unrestricted public access and publicity to personal financial information may constitute an unwarranted invasion of privacy to which an individual may have an interest in limiting its disclosure or dissemination. If the information sought then is not a matter of public concern or interest, denial of access thereto does not violate a citizen’s constitutional right to information. The accessory right to access public records may, however, be restricted on a showing of good cause. How "good cause" can be determined, the Supreme Judicial Court of Massachusetts in Republican Company v. Appeals Court teaches: “The public’s right of access to judicial records, including transcripts, evidence, memoranda, and court orders, maybe restricted, but only on a showing of "good cause." "To determine whether good cause is shown, a judge must balance the rights of the parties based on the particular facts of each case." In so doing, the judge "must take into account all relevant factors, including, but not limited to, the nature of the parties and the controversy, the type of information and the privacy interests involved, the extent of community interest, and the reason for the request.” And even then, the right is subject to inherent supervisory and protective powers of every court over its own records and files. In fine, this Court finds the petition for mandamus meritorious, petitioners being "interested persons" who have a legitimate reason or purpose for accessing the records of the case.

BA-RA 7941 VS. COMELEC Atty. Emilio Capulong, Jr. and ex-Senator Jovito R. Salonga, in their own behalves and as counsels of petitioner Rosales, forwarded a letter to the Comelec formally requesting action and definitive decision on Rosales’ earlier plea for information regarding the names of several party-list nominees. Invoking their constitutionally-guaranteed right to information, Messrs. Capulong and Salonga at the same time drew attention to the banner headline adverted to earlier, with a request for the Comelec, “collectively or individually, to issue a formal clarification, either confirming or denying … the banner headline and the alleged statement of Chairman Benjamin Abalos, Sr. xxx” Evidently unbeknownst then to Ms. Rosales, et al., was the issuance of Comelec en banc Resolution 07-0724 under date April 3, 2007 virtually declaring the nominees’ names confidential and in net effect denying petitioner Rosales’ basic disclosure request. In its relevant part, Resolution 07-0724 reads as follows: “RESOLVED, moreover, that the Commission will disclose/publicize the names of party-list nominees in connection with the May 14, 2007 Elections only after 3:00 p.m.

TRUTH. HONOR. EXCELLENCE.

10

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

on election day.“ Petitioners commonly seek to compel the Comelec to disclose or publish the names of the nominees of the various party-list groups named in the petitions. ISSUE: WON COMELEC, BY REFUSING TO REVEAL THE NAMES OF THE NOMINEES OF THE VARIOUS PARTYLIST GROUPS, HAS VIOLATED THE RIGHT TO INFORMATION AND FREE ACCESS TO DOCUMENTS? Held: YES. Complementing and going hand in hand with the right to information is another constitutional provision enunciating the policy of full disclosure and transparency in Government. We refer to Section 28, Article II of the Constitution reading: “Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.” The right to information is a public right where the real parties in interest are the public, or the citizens to be precise. And for every right of the people recognized as fundamental lies a corresponding duty on the part of those who govern to respect and protect that right. This is the essence of the Bill of Rights in a constitutional regime. Without a government’s acceptance of the limitations upon it by the Constitution in order to uphold individual liberties, without an acknowledgment on its part of those duties exacted by the rights pertaining to the citizens, the Bill of Rights becomes a sophistry. Like all constitutional guarantees, however, the right to information and its companion right of access to official records are not absolute. As articulated in Legaspi, the people’s right to know is limited to “matters of public concern” and is further subject to such limitation as may be provided by law. Similarly, the policy of full disclosure is confined to transactions involving “public interest” and is subject to reasonable conditions prescribed by law. Too, there is also the need of preserving a measure of confidentiality on some matters, such as military, trade, banking and diplomatic secrets or those affecting national security. If, as in Legaspi, it was the legitimate concern of a citizen to know if certain persons employed as sanitarians of a health department of a city are civil service eligibles, surely the identity of candidates for a lofty elective public office should be a matter of highest public concern and interest. As may be noted, no national security or like concerns is involved in the disclosure of the names of the nominees of the party-list groups in question. Doubtless, the Comelec committed grave abuse of discretion in refusing the legitimate demands of the petitioners for a list of the nominees of the party-list groups subject of their respective petitions. Mandamus, therefore, lies. Section 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. Doctrine A rehabilitation plan approved by statute which merely suspends the actions for claims does not violate the contract clause. Metrobank v ASB Holdings, GR 166197, February 27, 2007.

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

METROBANK V. ASB HOLDINGS Metrobank is a creditor bank of respondent corporations, collectively known as the ASB Group of Companies, owner and developer of condominium and real estate projects. The loans were secured by real estate mortgages. ASB Group of Companies filed with the SEC a Petition For Rehabilitation With Prayer For Suspension Of Actions And Proceedings Against Petitioners, pursuant to Presidential Decree (P.D.) No. 902-A, as amended. ASB Group of Companies submitted to the SEC for its approval a Rehabilitation Plan, to which Metrobank objected, specifically as to the arrangement concerning the mode of payment by respondents ASB Realty Corporation and ASB Development Corporation of their loan obligations. The SEC Hearing Panel, finding petitioner bank’s objections unreasonable, approved the Rehabilitation Plan. Metrobank then filed with the SEC En Banc a Petition for Certiorari, alleging that the SEC Hearing Panel, in approving the Rehabilitation Plan, committed grave abuse of discretion amounting to lack or excess of jurisdiction; and praying for the issuance of a temporary restraining order and/or a writ of preliminary injunction to enjoin its implementation. Subsequently, the ASB Group of Companies filed their Opposition to the petition, to which petitioner bank filed its Reply. SEC En Banc denied petitioner bank’s Petition for Certiorari and affirmed the SEC Hearing Panel’s approval of the plan. Metrobank assails the respondent’s personality to sue as a legal entity. Issue: WON ASB Group of Companies may sue? Held: Petitioner bank also argues that "ASB Group of Companies" is merely a generic name used to describe collectively various companies and as such, it is not a legal entity with juridical personality and cannot be a party to a suit. True, "ASB Group of Companies" is merely used in this case as a generic name, for brevity, to collectively describe the various companies/corporations that filed a Petition For Rehabilitation with the SEC. However, in their petition, all the respondent corporations are individually named as petitioners, not "ASB Group of Companies." Section 9. Private property shall not be taken for public use without just compensation. Doctrines Where the lots taken were not included in the expropriation proceeding, the lots should be returned to the rightful owner. Where lots were taken under a compromise agreement but the government did not perform its part, the agreement is abrogated and there is obligation on the part of the government to return the property to its owner. For the unauthorized use of a lot after the Lahug Airport was abandoned and after plaintiff tendered her repurchase price, and for the illegal encroachment and occupation of another by the government, the government must pay rental. Since land acquisition under either Presidential Decree No. 27 and the Comprehensive Agrarian Reform Law govern the extraordinary method of expropriating private property, the law

TRUTH. HONOR. EXCELLENCE.

11

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

must be strictly construed. Faithful compliance with legal provisions, especially those which relate to the procedure for acquisition of expropriated lands should therefore be observed. Jugalbot v. CA, GR 170346, March 12, 2007. When the right of way enforced by the state results in making adjoining property unusable, just compensation is due. Republic v. Andaya, G.R. No. 160656, June 15, 2007. The general rule in determining “just compensation” in eminent domain is the value of the property as of the date of the filing of the complaint. Normally, the time of the taking coincides with the filing of the complaint for expropriation. The general rule, however, admits of an exception. Simply stated, the exception finds the application where the owner would be given undue incremental advantages arising from the use to which the government devotes the property expropriated -- as for instance, the extension of a main thoroughfare which increased the value of the property after it was taken but before expropriation petition was filed. NPC v. Lucman Ibrahim, G.R. No. 168732, June 29, 2007. Q.

A.

The city authorized the taking of private property to be converted into a sports facility for the benefit of a small community which seeks to have its own sports and recreational facility, notwithstanding that there is such a recreational facility only a short distance away. Is such taking public use? No. The purpose is not clearly and categorically public. Masikip v. Pasig, G.R. No. 136349, January 23, 2006.

Q. MIA occupied a piece of private land for the extension of its runway but without expropriating it. After lapse of many years the owner seeks compensation and rental. How much is due? A. For purposes of compensation the value of the land should be based on what it was worth at the time of entry and not its value after many years. Beyond the payment for the value of the land the owner is entitled to legal interest, not rental. MIAA v. Rodriguez, G.R. No. 161836, February 28, 2006. Q. Section 75 of R.A. 7942 reads: Easement Rights. - When mining areas are so situated that for purposes of more convenient mining operations it is necessary to build, construct or install on the mining areas or lands owned, occupied or leased by other persons, such infrastructure as roads, railroads, mills, waste dump sites, tailing ponds, warehouses, staging or storage areas and port facilities, tramways, runways, airports, electric transmission, telephone or telegraph lines, dams and their normal flood and catchment areas, sites for water wells, ditches, canals, new river beds, pipelines, flumes, cuts, shafts, tunnels, or mills, the contractor, upon payment of just compensation, shall be entitled to enter and occupy said mining areas or lands. Section 76 provides: Entry into private lands and concession areas – Subject to prior notification, holders of mining rights shall not be prevented from entry into private lands and concession areas by surface owners, occupants, or concessionaires when conducting mining operations therein.

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

The CAMC FTAA grants in favor of CAMC the right of possession of the Exploration Contract Area, the full right of ingress and egress and the right to occupy the same. It also bestows CAMC the right not to be prevented from entry into private lands by surface owners or occupants thereof when prospecting, exploring and exploiting minerals therein. Is this compensable taking for public use? A. Yes. The entry referred to in Section 76 is not just a simple right-of-way which is ordinarily allowed under the provisions of the Civil Code. Here, the holders of mining rights enter private lands for purposes of conducting mining activities such as exploration, extraction and processing of minerals. All these will definitely oust the owners or occupants of the affected areas the beneficial ownership of their lands. Without a doubt, taking occurs once mining operations commence. And the mining industry is of great public interest. Didipio Earth Savers v. DENR, G.R. No. 157882, March 30, 2006 Q. Can the establishment of an easement be equivalent to a taking, even if title does not pass, and therefore require compensation? A. Yes, as in this case Here the easement of right-of-way is definitely a taking under the power of eminent domain. Considering the nature and effect of the installation of the 230 KV Mexico-Limay transmission lines, the limitation imposed by NPC against the use of the land for an indefinite period deprives private respondents of its ordinary use. NPC v. San Pedro, G.R. No. 170945, September 26, 2006. NOTE: the exercise of the power of eminent domain by a local government unit is now governed by Section 19 of Republic Act 7160. For properties under expropriation, the law now requires the deposit of an amount equivalent to fifteen percent (15%) of the fair market value of the property based on its current tax declaration. Knecht v. Municipality of Cainta, G.R. No. 145254, July 20, 2006. JUGALBOT V. CA An Emancipation Patent was issued to Nicolas Jugalbot based on the latter’s claim that he was the tenant of Lot 2180-C. On a Certification issued by DAR, the subject property was declared to be tenanted as of 1972 and primarily devoted to rice and corn. In 1988, the Emancipation Patent was registered and Nicolas Jugalbot was issued TCT. Heirs of Virginia A. Roa, herein private respondents, filed before the DARAB a Complaint for Cancellation of Title, Recovery of Possession and Damages against Nicolas Jugalbot. DARAB Provincial Adjudicator dismissed, MR was denied. Petition for review before the CA was filed and granted. The appellate court reversed the DARAB Central Office on four grounds: (1) the absence of a tenancy relationship; (2) lack of notice to Virginia Roa by the DAR; (3) the area of the property which was less than one hectare and deemed swampy, rainfed and kangkong-producing; and (4) the classification of the subject property as residential, outside the coverage of PD27. ISSUE: Whether a tenancy relationship exists between petitioners Heirs of Nicolas Jugalbot, and private respondents,

TRUTH. HONOR. EXCELLENCE.

12

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

Heirs of Virginia A. Roa, under PD27. Simply stated, are petitioners de jure tenants of private respondents? HELD: NO. The petitioners are not de jure tenants of private respondents under Presidential Decree No. 27 due to the absence of the essential requisites that establish a tenancy relationship between them. Firstly, the taking of subject property was done in violation of constitutional due process. Virginia A. Roa was denied due process because the DAR failed to send notice of the impending land reform coverage to the proper party. The records show that notices were erroneously addressed and sent in the name of Pedro N. Roa who was not the owner, hence, not the proper party in the instant case. The ownership of the property, as can be gleaned from the records, pertains to Virginia A. Roa. Notice should have been therefore served on her, and not Pedro N. Roa. Secondly, there is no concrete evidence on record sufficient to establish that Nicolas Jugalbot or the petitioners personally cultivated the property under question or that there was sharing of harvests, except for their self-serving statements. Neither was there any evidence that the landowner, Virginia A. Roa, freely gave her consent, whether expressly or impliedly, to establish a tenancy relationship over her paraphernal property. Thirdly, the fact of sharing alone is not sufficient to establish a tenancy relationship. All the requisites must concur in order to create a tenancy relationship between the parties and the absence of one or more requisites does not make the alleged tenant a de facto tenant as contradistinguished from a de jure tenant. This is so because unless a person has established his status as a de jure tenant he is not entitled to security of tenure nor is he covered by the Land Reform Program of the Government under existing tenancy laws. The security of tenure guaranteed by our tenancy laws may be invoked only by tenants de jure, not by those who are not true and lawful tenants. Finally, it is readily apparent in this case that the property under dispute is residential property and not agricultural property. Zoning Certification clearly shows that the subject property is located within the Residential 2 District in accordance with paragraph (b), Section 9, Article IV of Zoning Ordinance No. 880, Series of 1979 issued by the City Planning and Development Office of Cagayan de Oro City.

REPUBLIC V. ANDAYA Respondent Ismael Andaya is the registered owner of two parcels of land in Bading, Butuan City. These properties are subject to a 60-meter wide perpetual easement for public highways, irrigation ditches, aqueducts, and other similar works of the government or public enterprise, at no cost to the government, except only the value of the improvements existing thereon that may be affected. Petitioner Republic negotiated with Andaya to enforce the 60meter easement of right-of-way. The negotiations failed so Republic instituted an action to enforce the easement of right-ofway or eminent domain. RTC issued a writ of possession and constituted a Board of Commissioners to determine the just compensation.

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

The Board then reported that the project would affect a total of 10k sqm of Andaya’s properties, 4k sqm of which will be for the 60-meter easement. The Board also reported that the easement would diminish the value of the remaining 6k sqms. As a result, it recommended the payment of consequential damages amounting to P2.8M for the remaining area. ISSUE: Is the Republic liable for just compensation if in enforcing the legal easement of right-of-way on a property, the remaining area would be rendered unusable and uninhabitable? HELD: It is undisputed that there is a legal easement of right-ofway in favor of the Republic. Section 112 of the Public Land Act provides that lands granted by patent shall be subject to a rightof-way not exceeding 60 meters in width for public highways, irrigation ditches, aqueducts, and other similar works of the government or any public enterprise, free of charge, except only for the value of the improvements existing thereon that may be affected. We are, however, unable to sustain the Republic’s argument that it is not liable to pay consequential damages if in enforcing the legal easement on Andaya’s property, the remaining area would be rendered unusable and uninhabitable. “Taking,” in the exercise of the power of eminent domain, occurs not only when the government actually deprives or dispossesses the property owner of his property or of its ordinary use, but also when there is a practical destruction or material impairment of the value of his property. Using this standard, there was undoubtedly a taking of the remaining area of Andaya’s property. True, no burden was imposed thereon and Andaya still retained title and possession of the property. But, as correctly observed by the Board and affirmed by the courts a quo, the nature and the effect of the floodwalls would deprive Andaya of the normal use of the remaining areas. It would prevent ingress and egress to the property and turn it into a catch basin for the floodwaters coming from the Agusan River. For this reason, in our view, Andaya is entitled to payment of just compensation, which must be neither more nor less than the monetary equivalent of the land. Finally, we affirm the findings of the Court of Appeals and the trial court that just compensation should be paid only for 5,937 square meters of the total area of 10,380 square meters. Admittedly, the Republic needs only a 10-meter easement or an equivalent of 701 square meters. Yet, it is also settled that it is legally entitled to a 60-meter wide easement or an equivalent of 4,443 square meters. Clearly, although the Republic will use only 701 square meters, it should not be liable for the 3,742 square meters, which constitute the difference between this area of 701 square meters and the 4,443 square meters to which it is fully entitled to use as easement, free of charge except for damages to affected existing improvements, if any, under Section 112 of the Public Land Act. In effect, without such damages alleged and proved, the Republic is liable for just compensation of only the remaining areas consisting of 5,937 square meters, with interest thereon at the legal rate of 6% per annum from the date of the writ of possession or the actual taking until full payment is made. For the purpose of determining the final just compensation, the case is remanded to the trial court. Said court is ordered to make the determination of just compensation payable to respondent Andaya with deliberate dispatch.

TRUTH. HONOR. EXCELLENCE.

13

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

The case is hereby REMANDED to the Regional Trial Court of Butuan City, Branch 33 for the determination of the final just compensation of the compensable area consisting of 5,937 square meters, with interest thereon at the legal rate of 6% per annum from the date of the writ of possession or actual taking until fully paid. NPC V. LUCMAN IBRAHIM Ibrahim and his co-heirs claimed that they were owners of several parcels of land. Sometime in 1978, NAPOCOR, through alleged stealth and without respondents’ knowledge and prior consent, took possession of the sub-terrain area of their lands and constructed therein underground tunnels. The existence of the tunnels was only discovered in July 1992 by respondents and then later confirmed by NAPOCOR itself. Respondents demanded that NAPOCOR pay damages and vacate the subterrain portion of their lands but the latter refused to vacate much less pay damages. Disputing respondents’ claim, NAPOCOR claimed that respondents have no cause of action because they failed to show proof that they were the owners of the property, and the tunnels are a government project for the benefit of all and all private lands are subject to such easement as may be necessary for the same. RTC denied plaintiffs’ prayer for NAPOCOR to dismantle the underground tunnels but ordered defendant to pay to plaintiffs the fair market value of said 70,000 square meters of land and a reasonable monthly rental of P0.68 per square meter of the total area of 48,005 square meters effective from its occupancy of the foregoing area in 1978.

FR. JOAQUIN BERNAS, S.J.

thus expropriated, are entitled to a just compensation which should be neither more nor less, whenever it is possible to make the assessment, than the money equivalent of said property. The entitlement of respondents to just compensation having been settled, the issue now is on the manner of computing the same. In this regard, petitioner claims that the basis for the computation of the just compensation should be the value of the property at the time it was taken in 1978. To allow petitioner to use the date it constructed the tunnels as the date of valuation would be grossly unfair. First, it did not enter the land under warrant or color of legal authority or with intent to expropriate the same. In fact, it did not bother to notify the owners and wrongly assumed it had the right to dig those tunnels under their property. Secondly, the “improvements” introduced by petitioner, namely, the tunnels, in no way contributed to an increase in the value of the land. The trial court, therefore, as affirmed by the CA, rightly computed the valuation of the property as of 1992, when respondents discovered the construction of the huge underground tunnels beneath their lands and petitioner confirmed the same and started negotiations for their purchase but no agreement could be reached. As to the amount of the valuation, the RTC and the CA both used as basis the value of the adjacent property, Lot 1 (the property involved herein being Lots 2 and 3 of the same subdivision plan), which was valued at P1,000 per sq. meter as of 1990. Petitioner has not shown any error on the part of the CA in reaching such a valuation. Furthermore, these are factual matters that are not within the ambit of the present review. MASIKIP V. PASIG

ISSUE: WON respondents are entitled to just compensation? HELD: The ownership of land extends to the surface as well as to the subsoil under it. Petitioner contends that the underground tunnels in this case constitute an easement upon the property of respondents which does not involve any loss of title or possession. The manner in which the easement was created by petitioner, however, violates the due process rights of respondents as it was without notice and indemnity to them and did not go through proper expropriation proceedings. Petitioner could have, at any time, validly exercised the power of eminent domain to acquire the easement over respondents’ property as this power encompasses not only the taking or appropriation of title to and possession of the expropriated property but likewise covers even the imposition of a mere burden upon the owner of the condemned property. In disregarding this procedure and failing to recognize respondents’ ownership of the sub-terrain portion, petitioner took a risk and exposed itself to greater liability with the passage of time. It must be emphasized that the acquisition of the easement is not without expense. The underground tunnels impose limitations on respondents’ use of the property for an indefinite period and deprive them of its ordinary use. Based upon the foregoing, respondents are clearly entitled to the payment of just compensation. Notwithstanding the fact that petitioner only occupies the sub-terrain portion, it is liable to pay not merely an easement fee but rather the full compensation for land. This is so because in this case, the nature of the easement practically deprives the owners of its normal beneficial use. Respondents, as the owners of the property

JEN LAYGO 4D 2007

Petitioner Lourdes Dela Paz Masikip is the registered owner of a parcel of land in Pasig City. In a letter, the City of Pasig notified petitioner of its intention to expropriate a 1,500 square meter portion of her property to be used for the “sports development and recreational activities” of the residents of Barangay Caniogan. This was pursuant to Ordinance enacted by the then Sangguniang Bayan of Pasig. Petitioner sent a reply to respondent stating that the intended expropriation of her property is unconstitutional, invalid, and oppressive, as the area of her lot is neither sufficient nor suitable to “provide land opportunities to deserving poor sectors of our community.” Respondent reiterated that the purpose of the expropriation of petitioner’s property is “to provide sports and recreational facilities to its poor residents.” ISSUES: WON THERE WAS A GENUINE NECESSITY FOR EXPROPRIATION? HELD: NO. Judicial review of the exercise of eminent domain is limited to the following areas of concern: (a) the adequacy of the compensation, (b) the necessity of the taking, and (c) the public use character of the purpose of the taking. In this case, petitioner contends that respondent City of Pasig failed to establish a genuine necessity which justifies the condemnation of her property. While she does not dispute the intended public purpose, nonetheless, she insists that there must be a genuine necessity for the proposed use and purposes. According to petitioner, there is already an

TRUTH. HONOR. EXCELLENCE.

14

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

established sports development and recreational activity center at Rainforest Park in Pasig City, fully operational and being utilized by its residents, including those from Barangay Caniogan. Respondent does not dispute this. Evidently, there is no “genuine necessity” to justify the expropriation. The right to take private property for public purposes necessarily originates from “the necessity” and the taking must be limited to such necessity. The very foundation of the right to exercise eminent domain is a genuine necessity and that necessity must be of a public character. Moreover, the ascertainment of the necessity must precede or accompany and not follow, the taking of the land. The necessity within the rule that the particular property to be expropriated must be necessary, does not mean an absolute but only a reasonable or practical necessity, such as would combine the greatest benefit to the public with the least inconvenience and expense to the condemning party and the property owner consistent with such benefit. Applying this standard, we hold that respondent City of Pasig has failed to establish that there is a genuine necessity to expropriate petitioner’s property. Our scrutiny of the records shows that the Certification issued by the Caniogan Barangay Council, the basis for the passage of Ordinance No. 42 s. 1993 authorizing the expropriation, indicates that the intended beneficiary is the Melendres Compound Homeowners Association, a private, non-profit organization, not the residents of Caniogan. It can be gleaned that the members of the said Association are desirous of having their own private playground and recreational facility. Petitioner’s lot is the nearest vacant space available. The purpose is, therefore, not clearly and categorically public. The necessity has not been shown, especially considering that there exists an alternative facility for sports development and community recreation in the area, which is the Rainforest Park, available to all residents of Pasig City, including those of Caniogan. MIAA V. RODRIGUEZ In the early 70’s, petitioner Manila International Airport Authority (MIAA), the government-owned and controlled corporation managing and operating the Ninoy Aquino International Airport Complex, implemented expansion programs for its runway. This necessitated the acquisition and occupation of some of the properties surrounding its premises. Expropriation proceedings were thus initiated over most of the properties. In 1996, the MIAA through its then GM, petitioner Francisco Atayde, received a letter from respondent Joaquin Rodriguez proposing to sell at P2,350.00 per sqm, one of the lots already occupied by the expanded runway but assumed as not yet expropriated by the MIAA. The proposal did not ripen to a deal. Subsequently, Rodriguez bought the bigger lot a portion of which was occupied by the runway, as well as all the rights to claim reasonable rents and damages for the occupation, from its owner then, Buck Estate, Inc. In a letter, Rodriguez, through counsel, demanded from the MIAA full payment for the property and back rentals for 27 years. As he did not reach an agreement with the MIAA, Rodriguez filed a case for accion reinvindicatoria with damages. Finding that the MIAA had illegally taken possession of the property, the trial court ordered defendant to pay plaintiff

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

rental for the property from 1972 to 1998; the purchase price of the property occupied by it; and exemplary damages. ISSUE: WHAT POINT IN TIME SHOULD BE THE BASIS FOR JUST COMPENSATION? HELD: Where actual taking was made without the benefit of expropriation proceedings, and the owner sought recovery of the possession of the property prior to the filing of expropriation proceedings, the Court has invariably ruled that it is the value of the property at the time of taking that is controlling for purposes of compensation. Undeniably, the MIAA’s illegal occupation for more than 20 years has resulted in pecuniary loss to Rodriguez and his predecessors-in-interest. Such pecuniary loss entitles him to adequate compensation in the form of actual or compensatory damages, which in this case should be the legal interest (6%) on the value of the land at the time of taking, from said point up to full payment by the MIAA. This is based on the principle that interest “runs as a matter of law and follows from the right of the landowner to be placed in as good position as money can accomplish, as of the date of the taking.” The award of interest renders unwarranted the grant of back rentals as extended by the courts below. In Republic v. Lara, et al., the Court ruled that the indemnity for rentals is inconsistent with a property owner’s right to be paid legal interest on the value of the property, for if the condemnor is to pay the compensation due to the owners from the time of the actual taking of their property, the payment of such compensation is deemed to retroact to the actual taking of the property; and, hence, there is no basis for claiming rentals from the time of actual taking. Petitioners claim that Rodriguez is a buyer in bad faith since prior to his purchase he was aware of the MIAA’s occupation of the property and therefore proceeded with the purchase in anticipation of enormous profits from the subsequent sale to the MIAA. The point is irrelevant. Regardless of whether or not Rodriguez acted in bad faith, all that he will be entitled to is the value of the property at the time of the taking, with legal interest thereon from that point until full payment of the compensation by the MIAA. Besides, assuming the question is of any consequence, the circumstances surrounding Rodriguez’s purchase may not even amount to bad faith. There is nothing wrongful or dishonest in expecting to profit from one’s investment. However, Rodriguez can fault but only himself for taking an obvious risk in purchasing property already being used for a public purpose. It was a self-inflicted misfortune that his investment did not generate the windfall he had expected. For ostensibly little did he know that he could not acquire more rights than the previous owners had since the government taking had taken place earlier. DIDIPIO EARTH SAVERS V. DENR President Aquino promulgated EO279 which authorized the DENR Secretary to accept, consider and evaluate proposals from foreign-owned corporations or foreign investors for contracts of agreements involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, which, upon appropriate recommendation of the Secretary, the President may execute with the foreign proponent.

TRUTH. HONOR. EXCELLENCE.

15

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

In 1995, then President Ramos signed into law RA7942 otherwise known as the Philippine Mining Act of 1995. DENR Sec. Victor O. Ramos issued DENR AO23, Series of 1995, containing the implementing guidelines of RA7942. Previously, however, President Ramos executed an FTAA with AMC over a total land area of 37,000 hectares covering the provinces of Nueva Vizcaya and Quirino. Included in this area is Barangay Dipidio, Kasibu, Nueva Vizcaya. In 2001, counsels for petitioners filed a demand letter addressed to then DENR Secretary Heherson Alvarez, for the cancellation of the CAMC FTAA for the primary reason that Rep. Act No. 7942 and its Implementing Rules and Regulations DAO 96-40 are unconstitutional. The Office of the Executive Secretary was also furnished a copy of the said letter. There being no response to both letters, another letter of the same content dated 17 June 2002 was sent to President Gloria Macapagal Arroyo. This letter was indorsed to the DENR Secretary and eventually referred to the Panel of Arbitrators of the Mines and Geosciences Bureau (MGB), Regional Office No. 02, Tuguegarao, Cagayan, for further action. ISSUE: WON RA7942 AND THE CAMC FTAA ARE VOID BECAUSE THEY ALLOW THE UNJUST AND UNLAWFUL TAKING OF PROPERTY WITHOUT PAYMENT OF JUST COMPENSATION , IN VIOLATION OF SECTION 9, ARTICLE III OF THE CONSTITUTION? HELD: NO. Taking in Eminent Domain Distinguished from Regulation in Police Power According to noted constitutionalist, Fr. Joaquin Bernas, SJ, in the exercise of its police power regulation, the state restricts the use of private property, but none of the property interests in the bundle of rights which constitute ownership is appropriated for use by or for the benefit of the public. Use of the property by the owner was limited, but no aspect of the property is used by or for the public. The deprivation of use can in fact be total and it will not constitute compensable taking if nobody else acquires use of the property or any interest therein. If, however, in the regulation of the use of the property, somebody else acquires the use or interest thereof, such restriction constitutes compensable taking. While the power of eminent domain often results in the appropriation of title to or possession of property, it need not always be the case. Taking may include trespass without actual eviction of the owner, material impairment of the value of the property or prevention of the ordinary uses for which the property was intended such as the establishment of an easement. The CAMC FTAA grants in favor of CAMC the right of possession of the Exploration Contract Area, the full right of ingress and egress and the right to occupy the same. It also bestows CAMC the right not to be prevented from entry into private lands by surface owners or occupants thereof when prospecting, exploring and exploiting minerals therein. While this Court declares that the assailed provision is a taking provision, this does not mean that it is unconstitutional on the ground that it allows taking of private property without the determination of public use and the payment of just compensation.

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

There is also no basis for the claim that the Mining Law and its implementing rules and regulations do not provide for just compensation in expropriating private properties. Section 76 of Rep. Act No. 7942 and Section 107 of DAO 96-40 provide for the payment of just compensation: Section 76. xxx Provided, that any damage to the property of the surface owner, occupant, or concessionaire as a consequence of such operations shall be properly compensated as may be provided for in the implementing rules and regulations. Section 107. Compensation of the Surface Owner and Occupant- Any damage done to the property of the surface owners, occupant, or concessionaire thereof as a consequence of the mining operations or as a result of the construction or installation of the infrastructure mentioned in 104 above shall be properly and justly compensated. Such compensation shall be based on the agreement entered into between the holder of mining rights and the surface owner, occupant or concessionaire thereof, where appropriate, in accordance with P.D. No. 512. Power of Courts to Determine Just Compensation The question on the judicial determination of just compensation has been settled in the case of Export Processing Zone Authority v. Dulay wherein the court declared that the determination of just compensation in eminent domain cases is a judicial function. Even as the executive department or the legislature may make the initial determinations, the same cannot prevail over the court’s findings. Implementing Section 76 of Rep. Act No. 7942, Section 105 of DAO 96-40 states that holder(s) of mining right(s) shall not be prevented from entry into its/their contract/mining areas for the purpose of exploration, development, and/or utilization. That in cases where surface owners of the lands, occupants or concessionaires refuse to allow the permit holder or contractor entry, the latter shall bring the matter before the Panel of Arbitrators for proper disposition. Section 106 states that voluntary agreements between the two parties permitting the mining right holders to enter and use the surface owners’ lands shall be registered with the Regional Office of the MGB. In connection with Section 106, Section 107 provides that the compensation for the damage done to the surface owner, occupant or concessionaire as a consequence of mining operations or as a result of the construction or installation of the infrastructure shall be properly and justly compensated and that such compensation shall be based on the agreement between the holder of mining rights and surface owner, occupant or concessionaire, or where appropriate, in accordance with Presidential Decree No. 512. In cases where there is disagreement to the compensation or where there is no agreement, the matter shall be brought before the Panel of Arbitrators. Section 206 of the implementing rules and regulations provides an aggrieved party the remedy to appeal the decision of the Panel of Arbitrators to the Mines Adjudication Board, and the latter’s decision may be reviewed by the Supreme Court by filing a petition for review on certiorari. An examination of the foregoing provisions gives no indication that the courts are excluded from taking cognizance of expropriation cases under the mining law. The disagreement referred to in Section 107 does not involve the exercise of eminent domain, rather it contemplates of a situation wherein the permit holders are allowed by the surface owners entry into the latters’ lands and disagreement ensues as regarding the proper compensation for the allowed entry and use of the

TRUTH. HONOR. EXCELLENCE.

16

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

private lands. Noticeably, the provision points to a voluntary sale or transaction, but not to an involuntary sale. Although Section 105 confers upon the Panel of Arbitrators the authority to decide cases where surface owners, occupants, concessionaires refuse permit holders entry, thus, necessitating involuntary taking, this does not mean that the determination of the just compensation by the Panel of Arbitrators or the Mines Adjudication Board is final and conclusive. The determination is only preliminary unless accepted by all parties concerned. There is nothing wrong with the grant of primary jurisdiction by the Panel of Arbitrators or the Mines Adjudication Board to determine in a preliminary matter the reasonable compensation due the affected landowners or occupants. The original and exclusive jurisdiction of the courts to decide determination of just compensation remains intact despite the preliminary determination made by the administrative agency. Sufficient Control by the State Over Mining Operations Petitioners charge that Rep. Act No. 7942, as well as its Implementing Rules and Regulations, makes it possible for FTAA contracts to cede over to a fully foreign-owned corporation full control and management of mining enterprises, with the result that the State is allegedly reduced to a passive regulator dependent on submitted plans and reports, with weak review and audit powers. It has already been held in the case of La Bugal, that: Overall, considering the provisions of the statute and the regulations just discussed, we believe that the State definitely possesses the means by which it can have the ultimate word in the operation of the enterprise, set directions and objectives, and detect deviations and noncompliance by the contractor; likewise, it has the capability to enforce compliance and to impose sanctions, should the occasion therefor arise. In other words, the FTAA contractor is not free to do whatever it pleases and get away with it; on the contrary, it will have to follow the government line if it wants to stay in the enterprise. Ineluctably then, RA 7942 and DAO 96-40 vest in the government more than a sufficient degree of control and supervision over the conduct of mining operations. Proper Interpretation of the Constitutional Phrase “Agreements Involving Either Technical or Financial Assistance In interpreting the first and fourth paragraphs of Section 2, Article XII of the Constitution, petitioners set forth the argument that foreign corporations are barred from making decisions on the conduct of operations and the management of the mining project. Again, this issue has already been succinctly passed upon by this Court in La Bugal-B’Laan Tribal Association, Inc. v. Ramos. In discrediting such argument, the Court ratiocinated: Petitioners claim that the phrase “agreements x x x involving either technical or financial assistance” simply means technical assistance or financial assistance agreements, nothing more and nothing else. They insist that there is no ambiguity in the phrase, and that a plain reading of paragraph 4 quoted above leads to the inescapable conclusion that what a foreign-owned corporation may enter into with the government is merely an agreement for either financial or technical assistance only, for the large-scale exploration, development and utilization of minerals, petroleum and other mineral oils; such a limitation, they argue, excludes foreign management and operation of a mining enterprise.

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

The court held: We do not see how applying a strictly literal or verba legis interpretation of paragraph 4 could inexorably lead to the conclusions arrived at in the ponencia. First, the drafters’ choice of words -- their use of the phrase agreements x x x involving either technical or financial assistance -- does not indicate the intent to exclude other modes of assistance. The drafters opted to use involving when they could have simply said agreements for financial or technical assistance, if that was their intention to begin with. In this case, the limitation would be very clear and no further debate would ensue. In contrast, the use of the word “involving” signifies the possibility of the inclusion of other forms of assistance or activities having to do with, otherwise related to or compatible with financial or technical assistance. The word “involving” as used in this context has three connotations that can be differentiated thus: one, the sense of “concerning,” “having to do with,” or “affecting”; two, “entailing,” “requiring,” “implying” or “necessitating”; and three, “including,” “containing” or “comprising.” Plainly, none of the three connotations convey a sense of exclusivity. Moreover, the word “involving,” when understood in the sense of “including,” as in including technical or financial assistance, necessarily implies that there are activities other than those that are being included. In other words, if an agreement includes technical or financial assistance, there is apart from such assistance -- something else already in, and covered or may be covered by, the said agreement. In short, it allows for the possibility that matters, other than those explicitly mentioned, could be made part of the agreement. Thus, we are now led to the conclusion that the use of the word “involving” implies that these agreements with foreign corporations are not limited to mere financial or technical assistance. The difference in sense becomes very apparent when we juxtapose “agreements for technical or financial assistance” against “agreements including technical or financial assistance.” This much is unalterably clear in a verba legis approach. NPC V. SAN PEDRO For the construction of its San Manuel-San Jose 500 KV Transmission Line and Tower No. SMJ-389, NPC negotiated with Maria Mendoza San Pedro, then represented by her son, Vicente, for an easement of right of way over her property. The payment voucher for the residential portion of the lot valued at P6M was then processed. However, the NPC Board of Directors approved Board Resolution No. 97-246 stating that it would pay only a lesser amount. Hence, NPC filed a complaint for eminent domain in the RTC. According to NPC, in order to construct and maintain its Northwestern Luzon Transmission Line Project, it was necessary to acquire several lots in the Municipalities of San Jose del Monte and Norzagaray, Bulacan for an easement of right of way in the total area of more or less 35,288.5 sq m. During the pre-trial, the parties agreed that the only issue for resolution was the just compensation for the property. The court appointed a committee of commissioners to ascertain and recommend to the trial court the just compensation for the properties. RTC then approved the valuation of just compensation as found by the board.

TRUTH. HONOR. EXCELLENCE.

17

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

ISSUE: WON THE LOWER COURT RULING WAS PROPER? HELD: YES. The constitutional limitation of “just compensation” is considered to be the sum equivalent to the market value of the property, broadly described to be the price fixed by the seller in open market in the usual and ordinary course of legal action and competition or the fair value of the property as between one who receives, and one who desires to sell it, fixed at the time of the actual taking by the government. To determine the just compensation to be paid to the landowner, the nature and character of the land at the time of its taking is the principal criterion. The commissioners found that the property was located in a highly-developed area and was accessible through an allweather road. The fact that the property had potential for full development as shown by the existence of building projects in the vicinity, and the long-term effect of the expropriation on the lives, comfort and financial condition of petitioners was likewise considered. The report also took into account the ocular inspection conducted by the commissioners on May 11, 1999. The tax declaration of the subject property, the NPC sketch plan, the location plan, the zoning certificates, the zonal valuation of the BIR, and the opinion values were also considered. On the question as to whether petitioner shall pay only an easement fee to respondent’s heirs, the following pronouncement in National Power Corporation v. AguirrePaderanga is enlightening: Indeed, expropriation is not limited to the acquisition of real property with a corresponding transfer of title or possession. The right-of-way easement resulting in a restriction or limitation on property rights over the land traversed by transmission lines, as in the present case, also falls within the ambit of the term “expropriation.” In the case at bar, the easement of right-of-way is definitely a taking under the power of eminent domain. Considering the nature and effect of the installation of the 230 KV Mexico-Limay transmission lines, the limitation imposed by NPC against the use of the land for an indefinite period deprives private respondents of its ordinary use. Similarly, in this case, the commissioners’ observation on the reported constant loud buzzing and exploding sounds emanating from the towers and transmission lines, especially on rainy days; the constant fear on the part of the landowners that the large transmission lines looming not far above their land and the huge tower in front of their lot will affect their safety and health; and the slim chance that no one would be interested to buy the remaining portions on each side of the residential lot affected by the project, to the damage of the landowners, both as to future actual use of the land and financial gains to be derived therefrom, makes the instant case fall within the ambit of expropriation. KNECHT V. MUNICIPALITY OF CAINTA In 1965, Rose Packing Co., Inc. sold 3 parcels of land in Cainta to United Cigarette Corporation (UCC). The largest parcel was covered by a TCT while the two other parcels were unregistered. The TCT was mortgaged to. When Rose Packing refused to comply with its commitments under the contract, UCC filed a suit for specific performance and damages against it and its president, Rene Knecht. RTC

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

decided in favor of UCC. The judgment in favor of UCC, however, could not be immediately implemented because PCIB, during the pendency of the case foreclosed on the mortgage. Rose Packing tried to stop the foreclosure by filing a separate case but the trial court denied its prayer for TRO or preliminary injunction. PCIB subsequently purchased the lot in the foreclosure sale, consolidated its title over the property and had it registered in its name. Rose Packing questioned the validity of the foreclosure in the CA but the CA ruled in favor of PCIB. When the case was elevated to this Court, however, we invalidated the foreclosure, in effect reverting the title to Rose Packing. Interpreting our decision as removing the impediment to the execution of judgment, UCC moved for the execution of the 1969 decision. RTC ordered the issuance of an alias writ of execution in favor of UCC. Such issuance is now being questioned. In the meantime, Municipality of Cainta filed a complaint for expropriation against PCIB and Rose Packing. The expropriation complaint was based on Sangguniang Bayan Resolution No. 89-020 which sought to purchase the land as the site of the municipal administration compound and SB Resolution No. 89-021 which called for the condemnation of said land if the negotiation for its voluntary sale failed. The negotiation did fail, hence, the complaint for expropriation. Rose Packing moved to dismiss the complaint for failure to state a cause of action. Subsequently, Rose Packing filed a supplemental motion to dismiss alleging that it never received a formal offer to purchase from the municipality. It also averred that it could no longer be sued in view of its dissolution in 1986. It added that the property sought to be expropriated was under litigation and its expropriation would only complicate matters. RTC-Antipolo denied Rose Packing’s motion to dismiss the expropriation case. Trial court issued an order directing the Municipality of Cainta to deposit 10% of the provisional value of the property. Then, RTC-Antipolo issued a condemnation order declaring that the Municipality of Cainta had the lawful right to expropriate the property. On the same date, the trial court issued another order granting the municipality’s motion for a writ of possession. The present petition is intended to achieve only one thing: to frustrate the execution of the decision awarding the property to UCC. Issue: WON the decision awarding the property to UCC may be enforced despite the expropriation of the same land? Held: YES. There is no doubt that the judgment in Civil Case No. 9165 became final and executory. That this judgment is still enforceable was decided with finality by this Court in G.R. No. 109385. We, however, have to correct the erroneous reliance of RTCAntipolo on Presidential Decree (PD) 1533 in the expropriation case of the Municipality of Cainta. Its order dated June 16, 1992 in Civil Case No. 90-1817 mandated the deposit of 10% of the assessed value of the property. In Export Processing Zone Authority v. Dulay, a 1987 case, we struck down PD 1533 as unconstitutional. Moreover, the exercise of the power of eminent domain by a local government unit is now governed by Section 19 of Republic Act 7160. For

TRUTH. HONOR. EXCELLENCE.

18

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

properties under expropriation, the law now requires the deposit of an amount equivalent to fifteen percent (15%) of the fair market value of the property based on its current tax declaration. In conclusion, we once and for all declare that UCC ought to reap the fruits of the 1969 decision in its favor. Its interest in the property sought to be expropriated having been clearly established. Knecht, Inc./Rose Packing was correctly excluded from the case since its interest in the subject property had already passed onto UCC. UCC’s interest likewise prevails over that of PCIB since PCIB’s foreclosure sale of the same property was already invalidated with finality by this Court. Section 11. Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty. Doctrines Q. Petitioners filed a petition for enforcement of foreign judgment granting compensation for human rights violation during the Marcos years but were required to file a fee of P472,000,000.00. The amount was based on the dollar amount granted by the foreign court. Petitioners appealed to Section 11. A. The judge made an incorrect reading of the rules on filing fees. He calculated on the basis of an amount sought against an estate not based on a judgments. The Court, however, decided the case not on the basis of Section 11 (completely ignored) but on the rules for enforcement of foreign judgment. Mijares v. Ranada, G.R. No. 139325. April 12, 2005. MIJARES V. RANADA The petitioners in this case are prominent victims of human rights violations during the Marcos regime. The clash has been for now interrupted by a trial court ruling, seemingly comported to legal logic, that required the petitioners to pay a whopping filing fee of over P472M in order that they be able to enforce a judgment awarded them by a foreign court. Petitioners invoke Section 11, Article III of the Bill of Rights of the Constitution, which provides that “Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty,” a mandate which is essentially defeated by the required exorbitant filing fee. The adjudicated amount of the filing fee, as arrived at by the RTC, was characterized as indisputably unfair, inequitable, and unjust. Issue: WON the respondent Judge erred in dismissing the case for non-payment of filing fees? Held: An examination of Rule 141 of the Rules of Court readily evinces that the respondent judge ignored the clear letter of the law when he concluded that the filing fee be computed based on the total sum claimed or the stated value of the property in litigation. In dismissing the complaint, the respondent judge relied on Section 7(a), Rule 141 as basis for the computation of the filing fee of over P472 Million. The relevant question for purposes of the present petition is whether the action filed with

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

the lower court is a “money claim against an estate not based on judgment.” Respondent judge was in clear and serious error when he concluded that the filing fees should be computed on the basis of the schematic table of Section 7(a), as the action involved pertains to a claim against an estate based on judgment. The rules of comity, utility and convenience of nations have established a usage among civilized states by which final judgments of foreign courts of competent jurisdiction are reciprocally respected and rendered efficacious under certain conditions that may vary in different countries. This principle was prominently affirmed in the leading American case of Hilton v. Guyot and expressly recognized in our jurisprudence beginning with Ingenholl v. Walter E. Olsen & Co. The conditions required by the Philippines for recognition and enforcement of a foreign judgment were originally contained in Section 311 of the Code of Civil Procedure, which was taken from the California Code of Civil Procedure which, in turn, was derived from the California Act of March 11, 1872. Remarkably, the procedural rule now outlined in Section 48, Rule 39 of the Rules of Civil Procedure has remained unchanged down to the last word in nearly a century. There is an evident distinction between a foreign judgment in an action in rem and one in personam. For an action in rem, the foreign judgment is deemed conclusive upon the title to the thing, while in an action in personam, the foreign judgment is presumptive, and not conclusive, of a right as between the parties and their successors in interest by a subsequent title. However, in both cases, the foreign judgment is susceptible to impeachment in our local courts on the grounds of want of jurisdiction or notice to the party, collusion, fraud, or clear mistake of law or fact. Thus, the party aggrieved by the foreign judgment is entitled to defend against the enforcement of such decision in the local forum. It is essential that there should be an opportunity to challenge the foreign judgment, in order for the court in this jurisdiction to properly determine its efficacy. It is clear then that it is usually necessary for an action to be filed in order to enforce a foreign judgment, even if such judgment has conclusive effect as in the case of in rem actions, if only for the purpose of allowing the losing party an opportunity to challenge the foreign judgment, and in order for the court to properly determine its efficacy. Consequently, the party attacking a foreign judgment has the burden of overcoming the presumption of its validity. The rules are silent as to what initiatory procedure must be undertaken in order to enforce a foreign judgment in the Philippines. But there is no question that the filing of a civil complaint is an appropriate measure for such purpose. The jurisprudential standard in gauging whether the subject matter of an action is capable of pecuniary estimation is wellentrenched. The Marcos Estate cites Singsong v. Isabela Sawmill and Raymundo v. Court of Appeals, which ruled: “[I]n determining whether an action is one the subject matter of which is not capable of pecuniary estimation this Court has adopted the criterion of first ascertaining the nature of the principal action or remedy sought. If it is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary estimation, and whether jurisdiction is in the municipal courts or in the courts of first instance would depend on the amount of the claim. However, where the basic issue is

TRUTH. HONOR. EXCELLENCE.

19

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

something other than the right to recover a sum of money, where the money claim is purely incidental to, or a consequence of, the principal relief sought, this Court has considered such actions as cases where the subject of the litigation may not be estimated in terms of money, and are cognizable exclusively by courts of first instance (now Regional Trial Courts).” An examination of Section 19(6), B.P. 129 reveals that the instant complaint for enforcement of a foreign judgment, even if capable of pecuniary estimation, would fall under the jurisdiction of the Regional Trial Courts, thus negating the fears of the petitioners. Indeed, an examination of the provision indicates that it can be relied upon as jurisdictional basis with respect to actions for enforcement of foreign judgments, provided that no other court or office is vested jurisdiction over such complaint: Sec. 19. Jurisdiction in civil cases. — Regional Trial Courts shall exercise exclusive original jurisdiction: xxx (6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising jurisdiction or any court, tribunal, person or body exercising judicial or quasi-judicial functions. Thus, we are comfortable in asserting the obvious, that the complaint to enforce the US District Court judgment is one capable of pecuniary estimation. But at the same time, it is also an action based on judgment against an estate, thus placing it beyond the ambit of Section 7(a) of Rule 141. What provision then governs the proper computation of the filing fees over the instant complaint? For this case and other similarly situated instances, we find that it is covered by Section 7(b)(3), involving as it does, “other actions not involving property.” Notably, the amount paid as docket fees by the petitioners on the premise that it was an action incapable of pecuniary estimation corresponds to the same amount required for “other actions not involving property.” The petitioners thus paid the correct amount of filing fees, and it was a grave abuse of discretion for respondent judge to have applied instead a clearly inapplicable rule and dismissed the complaint. Finally, petitioners also invoke Section 11, Article III of the Constitution, which states that “[F]ree access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty.” Since the provision is among the guarantees ensured by the Bill of Rights, it certainly gives rise to a demandable right. However, now is not the occasion to elaborate on the parameters of this constitutional right. Given our preceding discussion, it is not necessary to utilize this provision in order to grant the relief sought by the petitioners. It is axiomatic that the constitutionality of an act will not be resolved by the courts if the controversy can be settled on other grounds or unless the resolution thereof is indispensable for the determination of the case. Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary,

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. (4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to the rehabilitation of victims of torture or similar practices, and their families. Doctrine Where the appellant did not voluntarily surrender to the police but was “invited” by SPO2 Gapas to the police station and was detained from 11 o’clock in the morning of 22 October 1995 up to the morning of 23 October 1995 before his alleged extrajudicial confession was taken appellant should have been informed of his constitutional rights as he was already considered a suspect, contrary to the finding of the trial court that the mandatory constitutional guidelines only attached when the investigators started to propound questions to appellant. People v. Rapeza, GR 169431, April 3, 2007.

PEOPLE V. RAPEZA An unidentified woman went to the Culion Municipal Station and reported a killing that had taken place in Sitio Cawa-Cawa. Upon information supplied by a certain Mr. Dela Cruz that appellant had wanted to confess to the crimes, SPO2 Gapas set out to look for appellant. He found appellant fishing in Asinan Island and invited the latter for questioning. Appellant expressed his willingness to make a confession in the presence of a lawyer. Appellant was then brought to the police station after which SPO2 Gapas requested Kagawad Arnel Alcantara to provide appellant with a lawyer. The following day, appellant was brought to the house of Atty. Roberto Reyes, the only available lawyer in the municipality. The typewriter at the police station was out of order at that time and Atty. Reyes could not go to the police station as he was suffering from rheumatism. At the house of Atty. Reyes, in the presence of Vice-Mayor Emiliano Marasigan of Culion, 2 officials of the Sangguniang Barangay, SPO2 Cuizon and an interpreter, SPO2 Gapas proceeded with the custodial investigation of appellant who was assisted by Atty. Reyes. Appellant was expressly advised that he was being investigated for the death of Libas and Ganzon. Appellant mainly contends that the extrajudicial confession upon which the trial court placed heavy emphasis to find him guilty suffers from constitutional infirmity as it was extracted in violation of the due process guidelines. Specifically, he claims that he affixed his thumbmark through violence and intimidation. He stresses that he was not informed of his rights during the time of his detention when he was already considered a suspect as the police had already received information of his alleged involvement in the crimes. Neither did a competent and independent counsel assist him from the time he was detained until trial began. Assuming Atty. Reyes was indeed designated as counsel to assist appellant for purposes of the custodial investigation, said lawyer, however, was not appellant’s personal choice. Appellant likewise maintains that although the Sinumpaang Salaysay states that his rights were read to him, there was no showing that his rights were explained to him in a way that an

TRUTH. HONOR. EXCELLENCE.

20

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

FR. JOAQUIN BERNAS, S.J.

uneducated person like him could understand. On the assumption that the confession is admissible, appellant asserts that the qualifying circumstance of evident premeditation was not amply proven as the trial court merely relied on his alleged confession without presenting any other proof that the determination to commit the crime was the result of meditation, calculation, reflection or persistent attempt.

For one thing, SPO2 Cuizon did not mention Abad as one of the persons present during the interrogation. For another, the prosecution did not present Abad as witness. Abad would have been in the best position to prove that he indeed made the translation from Tagalog to Waray for appellant to understand what was going on. This significant circumstance lends credence to appellant’s claim that he had never met Abad.

Issue: WON THE EXTRA-JUDICIAL ADMISSION IS VALID AND ADMISSIBLE?

The extra-judicial confession was allegedly made in Tagalog when accused-appellant is admittedly not well versed in said language. Even if the confession was made in the presence of an interpreter, there is no showing that the rights of a person under investigation were effectively explained and/or interpreted to accused-appellant. The interpreter was not even presented in Court to prove that said rights were translated in a language understood by accused-appellant.

Held: NO. Appellant was not informed of his constitutional rights in custodial investigation. A person under custodial investigation essentially has the right to remain silent and to have competent and independent counsel preferably of his own choice and the Constitution requires that he be informed of such rights. We note that appellant did not voluntarily surrender to the police but was "invited" by SPO2 Gapas to the police station. There he was detained from 11 o clock in the morning of 22 October 1995 up to the morning of 23 October 1995 before his extrajudicial statement was allegedly taken. At this juncture, appellant should have been informed of his constitutional rights as he was already considered a suspect, contrary to the finding of the trial court that the mandatory constitutional guidelines only attached when the investigators started to propound questions to appellant on 23 October 1995 in the house of Atty. Reyes. Custodial investigation refers to the critical pre-trial stage when the investigation ceases to be a general inquiry into an unsolved crime but has begun to focus on a particular person as a suspect. It is stated in the alleged confession that prior to questioning SPO2 Gapas had informed appellant in Tagalog of his right to remain silent, that any statement he made could be used in evidence for or against him, that he has a right to counsel of his own choice, and that if he cannot afford the services of one, the police shall provide one for him. However, there is no showing that appellant had actually understood his rights. He was not even informed that he may waive such rights only in writing and in the presence of counsel. In order to comply with the constitutional mandates, there should likewise be meaningful communication to and understanding of his rights by the appellant, as opposed to a routine, peremptory and meaningless recital thereof. Since comprehension is the objective, the degree of explanation required will necessarily depend on the education, intelligence, and other relevant personal circumstances of the person undergoing investigation. In this case, it was established that at the time of the investigation appellant was illiterate and was not well versed in Tagalog. This fact should engender a higher degree of scrutiny in determining whether he understood his rights as allegedly communicated to him, as well as the contents of his alleged confession. The prosecution underscores the presence of an interpreter in the person of Abad to buttress its claim that appellant was informed of his rights in the dialect known to him. However, the presence of an interpreter during the interrogation was not sufficiently established. Although the confession bears the signature of Abad, it is uncertain whether he was indeed present to assist appellant in making the alleged confession.

Moreover, confession was not made with the assistance of competent and independent counsel of appellant’s choice. Appellant denies that he was ever assisted by a lawyer from the moment he was arrested until before he was arraigned. On the other hand, the prosecution admits that appellant was provided with counsel only when he was questioned at the house of Atty. Reyes to which appellant was allegedly taken from the police station. The constitutional requirement obviously had not been observed. Settled is the rule that the moment a police officer tries to elicit admissions or confessions or even plain information from a suspect, the latter should, at that juncture, be assisted by counsel, unless he waives this right in writing and in the presence of counsel. Appellant did not make any such waiver. Assuming that Atty. Reyes did assist appellant, still there would be grave doubts as to his competence and independence as appellant’s counsel for purposes of the custodial investigation. The meaning of "competent counsel" and the standards therefor were explained in People v. Deniega as follows: “The lawyer called to be present during such investigations should be as far as reasonably possible, the choice of the individual undergoing questioning. If the lawyer were one furnished in the accused’s behalf, it is important that he should be competent and independent, i.e., that he is willing to fully safeguard the constitutional rights of the accused, as distinguished from one who would be merely be giving a routine, peremptory and meaningless recital of the individual’s constitutional rights. In People v. Basay, this Court stressed that an accused s right to be informed of the right to remain silent and to counsel "contemplates the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle." Ideally therefore, a lawyer engaged for an individual facing custodial investigation (if the latter could not afford one) "should be engaged by the accused (himself), or by the latter’s relative or person authorized by him to engage an attorney or by the court, upon proper petition of the accused or person authorized by the accused to file such petition." Lawyers engaged by the police, whatever testimonials are given as proof of their probity and supposed independence, are generally suspect, as in many areas, the relationship between lawyers and law enforcement authorities can be symbiotic. The competent or independent lawyer so engaged should be present from the beginning to end, i.e., at all stages of the

JEN LAYGO 4D 2007

TRUTH. HONOR. EXCELLENCE.

21

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

interview, counseling or advising caution reasonably at every turn of the investigation, and stopping the interrogation once in a while either to give advice to the accused that he may either continue, choose to remain silent or terminate the interview. The standards of "competent counsel" were not met in this case given the deficiencies of the evidence for the prosecution. Although Atty. Reyes signed the confession as appellant’s counsel and he himself notarized the statement, there is no evidence on how he assisted appellant. The confession itself and the testimonies of SPO2 Gapas and SPO2 Cuizon bear no indication that Atty. Reyes had explained to appellant his constitutional rights. Atty. Reyes was not even presented in court to testify thereon whether on direct examination or on rebuttal. It appears that his participation in the proceeding was confined to the notarization of appellant’s confession. Such participation is not the kind of legal assistance that should be accorded to appellant in legal contemplation. Furthermore, Atty. Reyes was not appellant’s counsel of choice but was picked out by the police officers allegedly through the barangay officials. Appellant’s failure to interpose any objection to having Atty. Reyes as his counsel cannot be taken as consent under the prevailing circumstances. Section 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. Doctrines Q. First, in an extradition case, is prior notice and hearing required before bail is cancelled? Second, what constitutes a “special circumstance” to be exempt from the no-bail rule in extradition cases? A. Prior notice is not required before issuance of warrant of arrest. So said Secretary of Justice v. Lantion on reconsideration. Prospective extraditees are entitled to notice and hearing only when the case is filed in court and not during the process of evaluation. If after his arrest and if the trial court finds that he is not a flight risk, it grants him bail. The grant of the bail, presupposes that the co-petitioner has already presented evidence to prove her right to be on bail, that she is no flight risk, and the trial court had already exercised its sound discretion and had already determined that under the Constitution and laws in force, co-petitioner is entitled to provisional release. We emphasize that bail may be granted to a possible extraditee only upon a clear and convincing showing (1) that he will not be a flight risk or a danger to the community, and (2) that there exist special, humanitarian and compelling circumstances, as in this case. Rodriguez v. Judge, G.R. No. 157977, February 27,2006. Q. The Court of appeals granted bail to one charged with an offense punishable by reclusion perpetua not on the ground that the evidence of guilt was not strong, as claimed by the

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

defense, but on humanitarian grounds of old age and illness. The CA also granted a new trial. A. The grant of new trial does not negate strong evidence of guilt as found by the lower court. Humanitarian ground on the mere say so of illness or old age is not ground for discretionary grant of bail. This is specially so were there is a finding on record that the accused may repeat the offense (pedophilia). People v Fitzgerald, G.R. 149723, October 27, 2006. In a bail proceeding in non-bailable crimes an accused has the right to present evidence to contradict evidence of the prosecution. Santos v. Judge How, A.M/ RTJ-05-1946, January 27, 2007. The Court (in bail hearings) cannot ignore the following trends in international law: (1) the growing importance of the individual person in public international law who, in the 20th century, has gradually attained global recognition; (2) the higher value now being given to human rights in the international sphere; (3) the corresponding duty of countries to observe these universal human rights in fulfilling their treaty obligations; and (4) the duty of this Court to balance the rights of the individual under our fundamental law, on one hand, and the law on extradition, on the other. If bail can be granted in deportation cases, we see no justification why it should not also be allowed in extradition cases. After all, both are administrative proceedings where the innocence or guilt of the person detained is not in issue. Gov’t of Hongkong v Olalia, GR 153675, April 19, 2007.

RODRIGUEZ V. JUDGE The case stemmed from the petition for extradition filed by the US government through the Department of Justice (DOJ) against the petitioners. After their arrest, petitioners applied for bail which the trial court granted. The bail was set for P1M for each. Petitioners then posted cash bonds. The US government moved for reconsideration of the grant of bail, but the motion was denied by the trial court. Unsatisfied, the US government filed a petition for certiorari with this Court. Thereafter, we directed the trial court to resolve the matter of bail which shall be subject to whatever ruling that this Court may have in the similar case of Mark Jimenez. In compliance with our directive, the trial court, without prior notice and hearing, cancelled the cash bond of the petitioners and ordered the issuance of a warrant of arrest. Issue: WON in an extradition case, is prior notice and hearing required before bail is cancelled? Held: The issue of prior notice and hearing in extradition cases is not new. In Secretary of Justice v. Lantion, by a vote of nine to six, we initially ruled that notice and hearing should be afforded the extraditee even when a possible extradition is still being evaluated. The Court, deliberating on a motion for reconsideration also by a vote of nine to six, qualified and declared that prospective extraditees are entitled to notice and hearing only when the case is filed in court and not during the process of evaluation. In the later case of Purganan, eight justices concurred that a possible extraditee is not entitled to notice and hearing before the issuance of a warrant of arrest while six others dissented.

TRUTH. HONOR. EXCELLENCE.

22

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

Now, we are confronted with the question of whether a prospective extraditee is entitled to notice and hearing before the cancellation of his or her bail. The issue has become moot and academic insofar as petitioner Eduardo Rodriguez is concerned. He is now in the USA facing the charges against him. But co-petitioner Imelda Gener Rodriguez is here and stands on a different footing. We agree that her bail should be restored. In Purganan, we said that a prospective extraditee is not entitled to notice and hearing before the issuance of a warrant of arrest, because notifying him before his arrest only tips him of his pending arrest. But this is for cases pending the issuance of a warrant of arrest, not in a cancellation of a bail that had been issued after determination that the extraditee is a no-flight risk. The policy is that a prospective extraditee is arrested and detained to avoid his flight from justice. On the extraditee lies the burden of showing that he will not flee once bail is granted. If after his arrest and if the trial court finds that he is no flight risk, it grants him bail. The grant of the bail, presupposes that the copetitioner has already presented evidence to prove her right to be on bail, that she is no flight risk, and the trial court had already exercised its sound discretion and had already determined that under the Constitution and laws in force, copetitioner is entitled to provisional release. Under these premises, and with the trial court’s knowledge that in this case, co-petitioner has offered to go on voluntary extradition; that she and her husband had posted a cash bond of P1 million each; that her husband had already gone on voluntary extradition and is presently in the USA undergoing trial; that the passport of co-petitioner is already in the possession of the authorities; that she never attempted to flee; that there is an existing hold-departure order against her; and that she is now in her sixties, sickly and under medical treatment, we believe that the benefits of continued temporary liberty on bail should not be revoked and their grant of bail should not be cancelled, without the co-petitioner being given notice and without her being heard why her temporary liberty should not be discontinued. We emphasize that bail may be granted to a possible extraditee only upon a clear and convincing showing (1) that he will not be a flight risk or a danger to the community, and (2) that there exist special, humanitarian and compelling circumstances. The trial court’s immediate cancellation of the bail of petitioners is contrary to our ruling in Purganan, and it had misread and misapplied our directive therein. Finally, considering that remanding the case to the court a quo will only delay the final resolution of the case as in all probability it would only end up with us again, we will decide if Imelda’s bail was validly cancelled. In Purganan, we held also that the grounds used by the highest court in the requesting state for the grant of bail may be considered, under the principle of reciprocity. Considering that she has not been shown to be a flight risk nor a danger to the community, she is entitled to notice and hearing before her bail could be cancelled. Based on the record, we find that, absent prior notice and hearing, the bail’s cancellation was in violation of her right to due process.

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

PEOPLE V FITZGERALD Fitzgerald, an Australian citizen, was charged with violation of Art. III, Section 5, paragraph (a), subparagraph (5) of RA7610, when actuated by lust, and by the use of laced drugs ("vitamins") he induced complainant a minor, 13 years of age, to engage in prostitution by then and there showering said minor with gifts, clothes and food and thereafter having carnal knowledge of her in violation of the aforesaid law and to her damage and prejudice. RTC found him guilty and Fitzgerald applied for bail which the RTC denied. He appealed to the CA which affirmed the RTC Decision. He filed a Motion for New Trial and a Supplement to Accused's Motion for New Trial on the ground that new and material evidence not previously available had surfaced. The CA granted the Motion for New Trial. The People filed a Motion for Reconsideration while Fitzgerald filed a Motion to Fix Bail with Manifestation. Both Motions were denied by the CA. In denying Fitzgerald's bail application, the CA cited Section 7, Rule 114 of the Rules of Court which provides: "Sec. 7. Capital Offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment when evidence of guilt is strong shall be admitted to bail regardless of the stage of the criminal procecution." It reasoned that the maximum imposable penalty in accordance with RA7610 otherwise known as the Special Protection of Children against Child Abuse, Exploitation and Discrimination Act is reclusion perpetua. It held that the evidence of guilt is strong, hence, his motion for bail was not granted. It was also held that “With regard to his alleged physical condition, let it be stressed that accused-appellant is not precluded from seeking medical attention if the need arises provided the necessary representations with the proper authorities are made.” CA then issued the herein assailed Resolution granting Fitzgerald's bail application, thus: “While We maintain that the evidence of guilt is strong, We have taken a second look at appellant's plea for temporary liberty considering primarily the fact that appellant is already of old age and is not in the best of health. Thus, it is this Court's view that appellant be GRANTED temporary liberty premised not on the grounds stated in his Motion for Bail but in the higher interest of substantial justice and considering the new trial granted in this case.“ Issue: WON THE CA ERRED IN GRANTING BAIL? Held: YES. Implementing Sec. 13, Article III of the 1987 Constitution, Sections 4 and 5, Rule 114 of the 2000 Rules of Criminal Procedure set forth substantive and procedural rules on the disposition of bail applications. Sec. 4 provides that bail is a matter of right to an accused person in custody for an offense not punishable by death, reclusion perpetua or life imprisonment, but a matter of discretion on the part of the court, concerning one facing an accusation for an offense punishable by death, reclusion perpetua or life imprisonment when the evidence of his guilt is strong. As for an accused already convicted and sentenced to imprisonment term exceeding six years, bail may be denied or revoked based on prosecution evidence as to the existence of any of the circumstances under Sec. 5, paragraphs (a) to (e), to wit:

TRUTH. HONOR. EXCELLENCE.

23

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

Sec. 5. Bail, when discretionary. Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary. The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court. However, if the decision of the trial court convicting the accused changed the nature of the offense from nonbailable to bailable, the application for bail can only be filed with and resolved by the appellate court. Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman. If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances: (a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; (b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification; (c) That he committed the offense while under probation, parole, or conditional pardon; (d) That the circumstances of his case indicate the probability of flight if released on bail; or (e) That there is undue risk that he may commit another crime during the pendency of the appeal. The appellate court may, motu proprio or on motion of any party, review the resolution of the Regional Trial Court after notice to the adverse party in either case.

It will be recalled that herein respondent was charged with violation of Section 5, par. (a), sub-paragraph (5), Article III of R.A. No. 7610, a crime which carries the maximum penalty of reclusion perpetua. He was later convicted by the RTC for a lesser crime which carried a sentence of imprisonment for an indeterminate term of 8 years and 1 day of prision mayor as minimum, to 17 years, 4 months and 1 day of reclusion temporal as maximum. These circumstances are not altered when the CA granted a new trial. The CA retained appellate jurisdiction over the case even as it ordered the remand of the original records thereof to the RTC for reception of evidence. In retaining appellate jurisdiction, it set aside only its own September 27, 1999 Decision but left unaltered the May 7, 1996 RTC Decision. The May 7, 1996 RTC Decision, therefore, remained operative. And under said Decision, respondent stood sentenced to an imprisonment term exceeding six years. It is bad enough that the CA granted bail on grounds other than those stated in the Motion filed by respondent; it is worse that it granted bail on the mere claim of the latter's illness. Bail is not a sick pass for an ailing or aged detainee or prisoner needing medical care outside the prison facility. A mere claim of illness is not a ground for bail. It may be that the trend now is for courts to permit bail for prisoners who are seriously sick. There may also be an existing proposition for the "selective decarceration of older prisoners" based on findings that recidivism rates decrease as age increases. But, in this particular case, the CA made no specific finding that respondent suffers from an ailment of such gravity that his continued confinement during trial will permanently impair his health or put his life in danger. It merely declared respondent not in the best of health even when the only evidence on record as to the latter's state of health is an unverified medical certificate stating that, as of August 30, 2000, respondent's condition required him to "xxx be confined in a more sterile area xxx." That medical recommendation was even rebuffed by the CA itself when, in its November 13, 2000 Resolution, it held that the physical condition of respondent

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

does not prevent him from seeking medical attention while confined in prison. SANTOS V. JUDGE HOW Complainants are Barangay officials presently detained without bail as accused in criminal cases involving the successive 'ambush' incidents against two sons of Manila Assistant City Prosecutor Domingo I. Orda, Jr. During trial, Respondent Judge held that he would resolve the petition for bail on the basis of the evidence presented by the prosecution. When complainants manifested that they would present one witness to identify the documents on record, respondent branded the request as 'misplaced.' He even rejected outright the request of the defense counsel to make a tender of proof and instead declared the petition deemed submitted for resolution, subject to the filing of memorandum by the parties within five (5) days. On 29 December 2004, respondent issued an Order denying bail to the accused. Complainants assail the order for being based on a one-sentence conclusion that the evidence of guilt is strong, without any supporting evaluation or consideration of the issues raised. In his Comment, respondent professes impartiality in handling the subject criminal cases. He asserts that he had explained to the parties that, for purposes of bail hearing, only the prosecution is required to present evidence since it is not yet a trial of the main case and the court is only preliminarily tasked to determine if the evidence of guilt is strong. Respondent argues that, even granting the accused may be allowed to present their evidence but the Judge did not allow it, the disallowance cannot be considered partiality or misconduct. He claims that he believed in good faith that he would fairly and correctly resolve the petition for bail by evaluating it based solely on the evidence of the prosecution; and that allowing both parties to present their evidence would mean resolving the merits of the case itself. He contends that if ever he committed any error, it was an error of judgment committed in good faith for which complainants have remedies under the Rules. Issue: WON the acts committed by respondent judge constitute gross ignorance of the law, manifest partiality and serious misconduct. Held: NO. The act of respondent in denying the complainants the right to present evidence constitutes simple ignorance of the law; but in the absence of malice, corrupt motives or improper considerations on the part of the respondent, the penalty of reprimand recommended by the OCA is just and reasonable. When the grant of bail is discretionary, the prosecution has the burden of showing that the evidence of guilt against the accused is strong. However, the determination of whether or not the evidence of guilt is strong, being a matter of judicial discretion, remains with the judge. This discretion, by the very nature of things, may rightly be exercised only after the evidence is submitted to the court at the hearing. Since the discretion is directed to the weight of the evidence and since evidence cannot properly be weighed if not duly exhibited or produced before the court, it is obvious that a proper exercise of judicial discretion requires that the evidence of guilt be submitted to the court, the petitioner having the right of cross examination and to introduce his own evidence in rebuttal.

TRUTH. HONOR. EXCELLENCE.

24

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

Records show that during the hearing of the application for bail, complainants' counsel insisted on presenting their evidence to disprove the allegations of the prosecution. However, respondent argued that the prosecution has to establish evidence against the accused because if he will go to the defense evidence, there will be no way of stopping it, it will go through and through, as if, he is already hearing the main case. This line of argument by respondent is misplaced considering that what the complainants were asking is for their evidence, which is already a part of the record, to be presented and admitted as tender of proof. The reasons given by respondent that for purposes of bail hearing, only the prosecution is required to present evidence since it is not yet a trial of the main case; that the court is only preliminarily tasked to determine if the evidence of guilt is strong; and that to allow complainants to present their evidence would mean resolving the merits of the case itself, are not plausible. In effect, Respondent deprived the accused of their right to present rebuttal evidence which to our mind is a clear violation of their right to due process and equal protection of the law. It is clear from the foregoing that respondent is remiss in his responsibility to endeavor at all times to avoid such actions as would impress upon litigants the disregard of due process. In this case, respondent's act of cutting short the hearing after the prosecution presented its evidence, without affording the defense to adduce evidence in rebuttal together with his outright denial of complainants’ request to offer proof, is a clear disregard of the right of the accused to disprove that the evidence of guilt is strong. It is of no moment that respondent required complainants to submit their memorandum. What is significant is that complainants were deprived of their constitutional right to present evidence during the hearing which the respondent may intelligently appreciate and evaluate in the light of the circumstances then obtaining. Nothing in the records suggests that respondent was motivated by malice or corrupt motives to deny the application for bail. Complainants failed to substantiate their other allegations with competent proof besides their own bare allegations. Respondent did what he thought was right under the law and established principles. Hence, respondent could not be held liable for manifest partiality and serious misconduct. The Court cannot presume partiality based on the circumstances alleged in the complaint. On denying bail based on a one-sentence conclusion that the evidence of guilt is strong, we agree with the OCA that although there was no categorical discussion on how the conclusion, that the evidence of guilt is strong, was reached, the same does not make it less a reasonable conclusion. The inadequacy of expression of the questioned Order is outweighed by its substantial compliance with the requirements for an Order granting or denying bail.

GOV’T OF HONGKONG V OLALIA The Republic of the Philippines and the then British Crown Colony of Hong Kong signed an "Agreement for the Surrender of Accused and Convicted Persons," which took effect on June 20, 1997. Thereafter, Hong Kong reverted back to the People’s Republic of China and became the Hong Kong Special Administrative Region.

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

Private respondent Muñoz was charged before the Hong Kong Court with 3 counts of the offense of "accepting an advantage as agent." He also faces 7 counts of the offense of conspiracy to defraud. Warrants of arrest were then issued against him. If convicted, he faces a jail term of 7 to 14 years for each charge. Petitioner Hong Kong Special Administrative Region filed with the RTC of Manila a petition for the extradition of private respondent. For his part, private respondent filed, in the same case, a petition for bail which was opposed by petitioner. RTC issued an Order denying the petition for bail, holding that there is no Philippine law granting bail in extradition cases and that private respondent is a high "flight risk." On reconsideration, private respondent was allowed to post bail. Hong Kong seeks reversal. Issue: WON BAIL APPLIES IN EXTRADITION? Held: YES. In the case of Mark Jimenez (Gov’t of USA v. Purganan) this court held that the constitutional provision on bail does not apply to extradition proceedings. It is "available only in criminal proceedings." The provision in the Constitution stating that the "right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended" does not detract from the rule that the constitutional right to bail is available only in criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas corpus finds application "only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion" (Sec. 18, Art. VIII, Constitution). Hence, the second sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean that the right is available even in extradition proceedings that are not criminal in nature. At first glance, the above ruling applies squarely to private respondent’s case. However, this Court cannot ignore the following trends in international law: (1) the growing importance of the individual person in public international law who, in the 20th century, has gradually attained global recognition; (2) the higher value now being given to human rights in the international sphere; (3) the corresponding duty of countries to observe these universal human rights in fulfilling their treaty obligations; and (4) the duty of this Court to balance the rights of the individual under our fundamental law, on one hand, and the law on extradition, on the other. The modern trend in public international law is the primacy placed on the worth of the individual person and the sanctity of human rights. While not a treaty, the principles contained in the Universal Declaration on Human Rights are now recognized as customarily binding upon the members of the international community. Thus, in Mejoff v. Director of Prisons, this Court, in granting bail to a prospective deportee, held that under the Constitution, the principles set forth in that Declaration are part of the law of the land. In 1966, the UN General Assembly also adopted the International Covenant on Civil and Political Rights which the Philippines signed and ratified. Fundamental among the rights enshrined therein are the rights of every person to life, liberty, and due process. The Philippines, along with the other members of the family of nations, committed to uphold the fundamental human rights as well as value the worth and dignity of every person. This commitment is enshrined in Section II, Article II of our

TRUTH. HONOR. EXCELLENCE.

25

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

Constitution which provides: "The State values the dignity of every human person and guarantees full respect for human rights." The Philippines, therefore, has the responsibility of protecting and promoting the right of every person to liberty and due process, ensuring that those detained or arrested can participate in the proceedings before a court, to enable it to decide without delay on the legality of the detention and order their release if justified. In other words, the Philippine authorities are under obligation to make available to every person under detention such remedies which safeguard their fundamental right to liberty. These remedies include the right to be admitted to bail. While this Court in Purganan limited the exercise of the right to bail to criminal proceedings, however, in light of the various international treaties giving recognition and protection to human rights, particularly the right to life and liberty, a reexamination of this Court’s ruling in Purganan is in order. First, we note that the exercise of the State’s power to deprive an individual of his liberty is not necessarily limited to criminal proceedings. Respondents in administrative proceedings, such as deportation and quarantine, have likewise been detained. Second, to limit bail to criminal proceedings would be to close our eyes to our jurisprudential history. Philippine jurisprudence has not limited the exercise of the right to bail to criminal proceedings only. This Court has admitted to bail persons who are not involved in criminal proceedings. In fact, bail has been allowed in this jurisdiction to persons in detention during the pendency of administrative proceedings, taking into cognizance the obligation of the Philippines under international conventions to uphold human rights. Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be viewed in the light of the various treaty obligations of the Philippines concerning respect for the promotion and protection of human rights. Under these treaties, the presumption lies in favor of human liberty. Thus, the Philippines should see to it that the right to liberty of every individual is not impaired. Section 2(a) of PD 1069 (The Philippine Extradition Law) defines "extradition" as "the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government." Extradition has thus been characterized as the right of a foreign power, created by treaty, to demand the surrender of one accused or convicted of a crime within its territorial jurisdiction, and the correlative duty of the other state to surrender him to the demanding state. It is not a criminal proceeding. Even if the potential extraditee is a criminal, an extradition proceeding is not by its nature criminal, for it is not punishment for a crime, even though such punishment may follow extradition. It is sui generis, tracing its existence wholly to treaty obligations between different nations. It is not a trial to determine the guilt or innocence of the potential extraditee. Nor is it a full-blown civil action, but one that is merely administrative in character. Its object is to prevent the escape of a person accused or convicted of a crime and to secure his return to the state from which he fled, for the purpose of trial or punishment. But while extradition is not a criminal proceeding, it is characterized by the following: (a) it entails a deprivation of

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

liberty on the part of the potential extraditee and (b) the means employed to attain the purpose of extradition is also "the machinery of criminal law." This is shown by Section 6 of P.D. No. 1069 (The Philippine Extradition Law) which mandates the "immediate arrest and temporary detention of the accused" if such "will best serve the interest of justice." We further note that Section 20 allows the requesting state "in case of urgency" to ask for the "provisional arrest of the accused, pending receipt of the request for extradition;" and that release from provisional arrest "shall not prejudice re-arrest and extradition of the accused if a request for extradition is received subsequently." Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal process. A potential extraditee may be subjected to arrest, to a prolonged restraint of liberty, and forced to transfer to the demanding state following the proceedings. "Temporary detention" may be a necessary step in the process of extradition, but the length of time of the detention should be reasonable. While our extradition law does not provide for the grant of bail to an extraditee, however, there is no provision prohibiting him or her from filing a motion for bail, a right to due process under the Constitution. The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the Extradition Treaty it entered into with the Hong Kong Special Administrative Region. However, it does not necessarily mean that in keeping with its treaty obligations, the Philippines should diminish a potential extraditee’s rights to life, liberty, and due process. More so, where these rights are guaranteed, not only by our Constitution, but also by international conventions, to which the Philippines is a party. We should not, therefore, deprive an extraditee of his right to apply for bail, provided that a certain standard for the grant is satisfactorily met. In his Separate Opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno, proposed that a new standard which he termed "clear and convincing evidence" should be used in granting bail in extradition cases. According to him, this standard should be lower than proof beyond reasonable doubt but higher than preponderance of evidence. The potential extraditee must prove by "clear and convincing evidence" that he is not a flight risk and will abide with all the orders and processes of the extradition court. In this case, there is no showing that private respondent presented evidence to show that he is not a flight risk. Consequently, this case should be remanded to the trial court to determine whether private respondent may be granted bail on the basis of "clear and convincing evidence." Section 14. (1) No person shall be held to answer for a criminal offense without due process of law. (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his

TRUTH. HONOR. EXCELLENCE.

26

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused: Provided, that he has been duly notified and his failure to appear is unjustifiable. Doctrine Where conspiracy is not alleged in the Information, it is imperative that the prosecution prove direct participation in the killing of the victim. People v. Galvez, GR157221, Mar 20, 2007. PEOPLE V. GALVEZ Information was filed against Galvez, a member of the PNP for the Murder of Rosalio Enojarda. Despite the fact that the Information failed to allege conspiracy and the aggravating circumstances of nocturnity and armed band, the RTC still convicted Galvez of murder based on conspiracy since Galvez was seen by two witnesses at the scene of the crime carrying a firearm together with his unidentified armed companions. The trial court also held that the offer of Galvez to have the case settled out of court is an indication of his guilt. Galvez was further stripped of all the military rank. Galvez appealed the case to the CA, which affirmed his guilt but modifying the penalty to be imposed. CA held that the RTC erred in holding Galvez criminally liable based on conspiracy when such fact was not alleged in the Information. However, it still found Galvez guilty of Murder. Issue: WON GALVEZ SHOULD BE ACQUITTED? Held: YES. Conspiracy must be alleged in the information in order that an accused may be held liable for the acts of his coaccused. In the absence of any averment of conspiracy in the information, an accused can only be made liable for the acts committed by him alone and such criminal responsibility is individual and not collective. Since conspiracy was not alleged in the Information in this case, it is imperative that the prosecution prove Galvez’s direct participation in the killing of the victim. This, the prosecution failed to do. The CA, in holding Galvez guilty of Murder, gave weight to the testimonies of the prosecution witnesses Rellios and Perez that they saw Galvez fire an armalite rifle in their direction on the night in question. The positive identification of these witnesses, the CA ruled, has more weight than the negative results of the paraffin and ballistic tests. We disagree. The prosecution witnesses never actually saw Galvez shoot the victim. Time and again, this Court has faithfully observed and given effect to the constitutional presumption of innocence which can only be overcome by contrary proof beyond reasonable doubt one which requires moral certainty, a certainty that convinces and satisfies the reason and conscience of those who are to act upon it. As we have so stated in the past - Accusation is not, according to the fundamental law, synonymous with guilt, the prosecution must overthrow the presumption of innocence with proof of guilt beyond reasonable doubt. To meet this standard, there is need for the most careful scrutiny of the testimony of the State, both oral and documentary, independently of whatever defense is offered by the accused. Only if the judge below and the appellate tribunal could arrive at a conclusion that the crime had been committed precisely by the person on trial under such an exacting test should the sentence be one of conviction. It is thus required that every circumstance favoring innocence be

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

duly taken into account. The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment. When a crime is committed, it is the duty of the prosecution to prove the identity of the perpetrator of the crime beyond reasonable doubt for there can be no conviction even if the commission of the crime is established. Indeed, the State, aside from showing the existence of a crime, has the burden of correctly identifying the author of such crime. Both facts must be proved by the State beyond reasonable doubt on the strength of its evidence and without solace from the weakness of the defense. While the Court agrees that in criminal cases, an offer of compromise by the accused may be received in evidence as an implied admission of guilt, such principle is not applicable in this case. Galvez’s supposed offer of compromise was not formally offered and admitted as evidence during the trial. The victim’s widow or any prosecution witness did not testify on any offer of compromise made by Galvez. We have held that when the evidence on the alleged offer of compromise is amorphous, the same shall not benefit the prosecution in its case against the accused. The Court also recognizes that there may be instances when an offer of compromise will not amount to an admission of guilt. Thus, in People v. Godoy, the Court pronounced that: “In criminal cases, an offer of compromise is generally admissible as evidence against the party making it. It is a legal maxim, which assuredly constitutes one of the bases of the right to penalize, that in the matter of public crimes which directly affect the public interest, no compromise whatever may be entered into as regards the penal action. It has long been held, however, that in such cases the accused is permitted to show that the offer was not made under a consciousness of guilt, but merely to avoid the inconvenience of imprisonment or for some other reason which would justify a claim by the accused that the offer to compromise was not in truth an admission of guilt or an attempt to avoid the legal consequences which would ordinarily ensue therefrom.” In this case, the presumption of innocence of Galvez prevails over the alleged implied admission of guilt. In Godoy, the Court, in acquitting the accused, explained that: “It frequently happens that in a particular case two or more presumptions are involved. Sometimes the presumptions conflict, one tending to demonstrate the guilt of the accused and the other his innocence. In such case, it is necessary to examine the basis for each presumption and determine what logical or social basis exists for each presumption, and then determine which should be regarded as the more important and entitled to prevail over the other. It must, however, be remembered that the existence of a presumption indicating his guilt does not in itself destroy the presumption against innocence unless the inculpating presumption, together with all the evidence, or the lack of any evidence or explanation, is sufficient to overcome the presumption of innocence by proving the defendant’s guilt beyond a reasonable doubt. Until the defendant’s guilt is shown in this manner, the presumption of innocence continues.” It is true that a negative finding in a paraffin test is not a conclusive proof that one has not fired a gun, as held by this Court in People v. Pagal and People v. Teehankee which were cited by the CA in its Decision, since it is possible for a person

TRUTH. HONOR. EXCELLENCE.

27

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

FR. JOAQUIN BERNAS, S.J.

to fire a gun and yet bear no traces of nitrate or gunpowder as when the hands are bathed in perspiration or washed afterwards. Such principle, however, has no bearing in the present case. Thus, while it is true that the negative results of the paraffin and ballistic tests do not conclusively prove that Galvez did not shoot the victim, the same negative results cannot be used as circumstantial evidence against Galvez to prove that he shot Enojarda. To do otherwise would violate the basic precepts of criminal law which presumes the innocence of the accused. Every circumstance favoring an accused s innocence must be duly taken into account, the proof against him must survive the test of reason, and the strongest suspicion must not be permitted to sway judgment.

Army Inspector General to conduct an investigation to determine: 1) the circumstances attending Major Aquino’s alleged withdrawal of support; 2) the veracity of reports anent the alleged troop movement of some Philippine Military personnel from their respective stations to Manila to join the protest march at EDSA with Brigadier General Danilo Lim; and 3) the participation, responsibility and culpability of all Philippine Military personnel involved, if any. For this purpose, a panel of investigators was formed. During the investigation, Major Aquino denied the accusations hurled against him. He intimated, inter alia, that he had no plan nor did he make any pronouncement of withdrawing support from the chain of command, and that he pledged to continue to support the same and the duly constituted authorities.

Section 15. The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion, when the public safety requires it.

The panel of investigators submitted its Investigation Report to the Commanding General of the Philippine Army. In its report, the panel of investigators found that the troop movement by some military personnel from their respective stations to Manila was illegal, implicating Major Aquino therein. Further, the panel’s Investigation Report was referred by Lt. Gen. Esperon to the Judge Advocate General’s Office (JAGO) of the Philippine Army for review. JAGO found the existence of probable cause against Major Aquino, among other military officers, for violations of Article 96 (Conduct Unbecoming an Officer and a Gentleman), Article 97 (Disorders and Neglects Prejudicial to Good Order and Military Discipline), and Article 67 (Attempting to Begin or Create Mutiny) of the Articles of War.

Doctrines It is contended that in his confinement, Major Aquino was not restricted to his barracks, quarters or tent as mandated by Article 70 of the Articles of War; rather, he was placed in solitary confinement in a maximum security detention cell. When petitioner proceeded to the detention cell, the wife alleged that she was restricted from visiting her husband. Petitioner asserts that these are extreme punishments akin to treating Major Aquino as a convicted criminal. In Alejano v. Cabuay, lawyers of soldiers and pre-trial detainees accused of coup d’etat before the Regional Trial Court of Makati came to this Court bewailing the regulations adopted by the Chief of the Intelligence Service of the Armed Forces of the Philippines (ISAFP) who had custody over their clients. Therein petitioners claimed that their constitutional rights were violated because they were prevented from seeing the detainees—their clients—at any time of the day or night. They also alleged that the detainees’ constitutional right to privacy of communication were violated because ISAFP officials opened and read the personal letters of some of the detainees. They also challenged, as unusual and excessive punishment, the presence of the bars separating the detainees from their visitors and the boarding of the iron grills in their cells with plywood. In denying the petition, this Court declared that the fact that the restrictions inherent in detention intrude into the detainees’ desire to live comfortably does not convert those restrictions into punishment. This Court has declared that habeas corpus is not the proper mode to question conditions of confinement. Moreover, a basic rule is that once charges have been filed in court, habeas corpus is no longer available. In re Major Aquino, G.R. No. 174994, August 21, 2007. IN RE MAJOR AQUINO Major Aquino, along with several military men allegedly met at the resthouse of Captain Aldomovar to plot a breach of the Camp Defense Plan of Camp General Emilio Aguinaldo and to take over Camp Aquinaldo, as well as the Headquarters of the Philippine Army. In the wake of the group’s alleged withdrawal of support from the AFP chain of command and the current administration of PGMA, Major Aquino was ordered arrested and confined. On the same day, Lt. Gen. Esperon ordered the

JEN LAYGO 4D 2007

On the basis of JAGO’s recommendations, Col. Jose R. Recuenco (Col. Recuenco), then Army Provost Marshal, signed under oath a charge sheet against Major Aquino, charging the latter with violations of Article 67 (Attempting to Begin or Create Mutiny) and Article 96 (Conduct Unbecoming an Officer and Gentleman) of the Articles of War, which was indorsed to the Chief of Staff of the AFP. Petitioner filed a Petition for Habeas Corpus with the Court of Appeals, praying that the AFP Chief of Staff and the Commanding General of the Philippine Army, or whoever are acting in their place and stead, be directed to immediately produce the body of Major Aquino and explain forthwith why he should not be set at liberty without delay. After hearing, the Court of Appeals rendered a Decision, denying the Petition for Habeas Corpus. The Court of Appeals held that the remedy of the writ of habeas corpus is futile because charges had already been preferred against Major Aquino. Issue: WON MAJOR AQUINO’S CONFINEMENT IS LEGAL? Held: YES. As a regular officer of the Armed Forces of the Philippines, Major Aquino falls squarely under Article 2 of the Articles of War. Consequently, he is subject to the applicable provisions of the Articles of War and Executive Order No. 178; or the Manual for Courts-Martial, Philippine Army. Perforce, we do not find that the Court of Appeals erred in denying petitioner’s Petition for Habeas Corpus for the person of Major Aquino. A writ of habeas corpus extends to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled to it. As a general rule, the writ of habeas corpus will not issue where the person alleged to be restrained of his liberty is in the custody of an officer under a process issued by the court which has jurisdiction to do so. Its essential object and purpose is to inquire into all manner of

TRUTH. HONOR. EXCELLENCE.

28

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

involuntary restraint and to relieve a person from it if such restraint is illegal. In the case at bar, Major Aquino stands charged in court martial proceedings for alleged violations of Article 67 (Attempting to Begin or Create Mutiny) and Article 96 (Conduct Unbecoming an Officer and Gentleman) of the Articles of War. The legality of Major Aquino’s restraint having been settled, the privilege of the writ is unavailing. We reiterate the pronouncement of this Court in Alejano: The ruling in this case, however, does not foreclose the right of detainees and convicted prisoners from petitioning the courts for the redress of grievances. Regulations and conditions in detention and prison facilities that violate the Constitutional rights of the detainees and prisoners will be reviewed by the courts on a case-by-case basis. The courts could afford injunctive relief or damages to the detainees and prisoners subjected to arbitrary and inhumane conditions. However, habeas corpus is not the proper mode to question conditions of confinement. The writ of habeas corpus will only lie if what is challenged is the fact or duration of confinement. Section 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua. (2) The employment of physical, psychological, or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law. Doctrine Q. Sentenced to death for rape, accused failed to file his appellant’s brief. The Court of Appeals, exercising its new power to review death sentences, considered the case abandoned and dismissed the case. Proper? A. No. Review of death sentences is mandatory. Neither the Court of Appeals nor the Supreme Court nor the accused can waive the need for review. People v. Lagua, G.R. 170565, January 31, 2006. NOTE: Review by the Court of Appeals of the trial court’s judgment imposing the death penalty is now automatic and mandatory. It may not be waived by the accused nor by the Court of Appeals. People v. Lagua, G.R. No. 170565, January 31, 2006. PEOPLE V. LAGUA Accused Isidro Flores y Lagua was charged with 181 counts of rape committed against his minor ward. He pleaded not guilty when arraigned, and trial ensued. The trial court then rendered judgment finding accused guilty as charged and imposed the death penalty on him for each count of rape. Accused filed a motion for new trial/reconsideration but the same was denied and the records of the case were ordered transmitted to the Court of Appeals for its review pursuant to this Court’s decision in People v. Mateo.

FR. JOAQUIN BERNAS, S.J.

abandoned and dismissed the case on August 23, 2005. Thereafter, the appellate court elevated the records of the case to this Court for automatic review. Issue: WON the CA erred in dismissing the case of automatic review? Held:YES. Except in criminal cases where the penalty imposed is reclusion perpetua or death, all appeals to this Court are not a matter of right but of sound judicial discretion. Conversely, appeal in criminal cases where the penalty of reclusion perpetua or death is imposed, is a matter of right. This is specially true in death penalty cases where a review of the trial court’s judgment of conviction is automatic and does not depend on the whims of the death convict. It is mandatory and leaves the reviewing court without any option. In recognition of the value of human life and as a way of ensuring utmost circumspection before imposing death or life imprisonment, the Court provided an intermediate appeal or review in favor of the accused. Thus, the Court pronounced in People v. Mateo: “If only to ensure utmost circumspection before the penalty of death, reclusion perpetua or life imprisonment is imposed, the Court now deems it wise and compelling to provide in these cases a review by the Court of Appeals before the case is elevated to the Supreme Court. Where life and liberty are at stake, all possible avenues to determine his guilt or innocence must be accorded an accused, and no care in the evaluation of the facts can ever be overdone. A prior determination by the Court of Appeals on, particularly, the factual issues, would minimize the possibility of an error of judgment. If the Court of Appeals should affirm the penalty of death, reclusion perpetua or life imprisonment, it could then render judgment imposing the corresponding penalty as the circumstances so warrant, refrain from entering judgment and elevate the entire records of the case to the Supreme Court for its final disposition.” Review by the Court of Appeals of the trial court’s judgment imposing the death penalty is now automatic and mandatory. Rule 122, Sections 3(d) and 10 of the Rules of Court, as amended by A.M. No. 00-5-03-SC, expressly provides: Sec. 3. How appeal taken. – “ (d) No notice of appeal is necessary in cases where the Regional Trial Court imposed the death penalty. The Court of Appeals shall automatically review the judgment as provided in Section 10 of this Rule.” Sec. 10 of Rule 122 provides: “Transmission of records in case of death penalty. – In all cases where the death penalty is imposed by the trial court, the records shall be forwarded to the Court of Appeals for automatic review and judgment within twenty days but not earlier than fifteen days from the promulgation of the judgment or notice of denial of a motion for new trial or reconsideration. The transcript shall also be forwarded within ten days after the filing thereof by the stenographic reporter.” The power to automatically review a decision imposing the death penalty cannot be waived either by the accused or by the courts. The fundamental law makes the review of all death penalty cases mandatory regardless of the wish of the accused or the will of the court. Neither can it be repudiated by the accused nor evaded by the court.

For accused’s failure to file his appellant’s brief despite notice to his counsel, the Court of Appeals declared his appeal as

JEN LAYGO 4D 2007

TRUTH. HONOR. EXCELLENCE.

29

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

Doctrine/Notes: Court of Appeals shall review cases imposing capital punishment, such automatic review cannot be waived, not even by the accused himself. NOTE: BUT FR. B MENTIONED THAT IN A 2007 CASE, IN CASES OF RECLUSION PERPETUA AND LIFE SENTENCE, IT MAY BE WAIVED. (PEOPLE V. ROCHA AND RAMOS) Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. Doctrines An order granting an accused’s demurrer to evidence is a resolution of the case on the merits, and it amounts to an acquittal. The prosecution can reopen the case only (1) if the state had been denied due process or (2) the dismissal was a grave abuse of discretion. People v. Lagua, G.R. No. 170565, January 31, 2006. Q. A single act violates four different statutes each requiring different elements for conviction. Is there double jeopardy if four charges are filed? A. No. Since the different statutes require different evidence at least in one respect, they are not the same offense [unless, of course, one is necessarily included or necessarily includes another]. Loney et al v. People, G.R. 153644, February 10, 2006. LONEY ET AL V. PEOPLE Loney, et al. are the corporate officers of Marcopper Mining Corporation, a corporation engaged in mining in the province of Marinduque. Marcopper had been storing tailings from its operations in a pit in Mt. Tapian, Marinduque. At the base of the pit ran a drainage tunnel leading to the Boac and Makalupnit rivers. It appears that Marcopper had placed a concrete plug at the tunnel’s end. On 24 March 1994, tailings gushed out of or near the tunnel’s end. In a few days, the Mt. Tapian pit had discharged millions of tons of tailings into the Boac and Makalupnit rivers. DOJ separately charged petitioners with violation of the Water Code of the Philippines or PD 1067, the National Pollution Control Decree of 1976 or PD984, the Philippine Mining Act of 1995 or RA7942, and Reckless Imprudence Resulting in Damage to Property under the RPC. Issue: Whether all the charges filed against petitioners except one should be quashed for duplicity of charges and only the charge for Reckless Imprudence Resulting in Damage to Property should stand? Held: NO. Petitioners contend that they should be charged with one offense only Reckless Imprudence Resulting in Damage to Property because (1) all the charges filed against them "proceed from and are based on a single act or incident of polluting the Boac and Makalupnit rivers thru dumping of mine tailings" and (2) the charge for violation of Article 365 of the RPC "absorbs" the other charges since the element of "lack of necessary or adequate protection, negligence, recklessness and imprudence" is common among them.

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

The contention has no merit. As early as the start of the last century, this Court had ruled that a single act or incident might offend against two or more entirely distinct and unrelated provisions of law thus justifying the prosecution of the accused for more than one offense. The only limit to this rule is the Constitutional prohibition that no person shall be twice put in jeopardy of punishment for "the same offense." In People v. Doriquez, we held that two (or more) offenses arising from the same act are not "the same” : if one provision [of law] requires proof of an additional fact or element which the other does not, x x x. Phrased elsewise, where two different laws (or articles of the same code) define two crimes, prior jeopardy as to one of them is no obstacle to a prosecution of the other, although both offenses arise from the same facts, if each crime involves some important act which is not an essential element of the other.” Here, double jeopardy is not at issue because not all of its elements are present. However, for the limited purpose of controverting petitioners’ claim that they should be charged with one offense only, we quote with approval Branch 94 s comparative analysis of PD 1067, PD 984, RA 7942, and Article 365 of the RPC showing that in each of these laws on which petitioners were charged, there is one essential element not required of the others, thus: In P.D. 1067 (Philippines Water Code), the additional element to be established is the dumping of mine tailings into the Makulapnit River and the entire Boac River System without prior permit from the authorities concerned. The gravamen of the offense here is the absence of the proper permit to dump said mine tailings. This element is not indispensable in the prosecution for violation of PD 984 (Anti-Pollution Law), [RA] 7942 (Philippine Mining Act) and Art. 365 of the Revised Penal Code. One can be validly prosecuted for violating the Water Code even in the absence of actual pollution, or even [if] it has complied with the terms of its Environmental Compliance Certificate, or further, even [if] it did take the necessary precautions to prevent damage to property. In P.D. 984 (Anti-Pollution Law), the additional fact that must be proved is the existence of actual pollution. The gravamen is the pollution itself. In the absence of any pollution, the accused must be exonerated under this law although there was unauthorized dumping of mine tailings or lack of precaution on its part to prevent damage to property. In R.A. 7942 (Philippine Mining Act), the additional fact that must be established is the willful violation and gross neglect on the part of the accused to abide by the terms and conditions of the Environmental Compliance Certificate, particularly that the Marcopper should ensure the containment of run-off and silt materials from reaching the Mogpog and Boac Rivers. If there was no violation or neglect, and that the accused satisfactorily proved [sic] that Marcopper had done everything to ensure containment of the run-off and silt materials, they will not be liable. It does not follow, however, that they cannot be prosecuted under the Water Code, Anti-Pollution Law and the RPC because violation of the Environmental Compliance Certificate is not an essential element of these laws. On the other hand, the additional element that must be established in Art. 365 is the lack of necessary or adequate precaution, negligence, recklessness and imprudence on the part of the accused to prevent damage to property. This element is not required under the previous laws. Unquestionably, it is

TRUTH. HONOR. EXCELLENCE.

30

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

different from dumping of mine tailings without permit, or causing pollution to the Boac river system, much more from violation or neglect to abide by the terms of the Environmental Compliance Certificate. Moreover, the offenses punished by special law are mala prohibita in contrast with those punished by the Revised Penal Code which are mala in se. Consequently, the filing of the multiple charges against petitioners, although based on the same incident, is consistent with settled doctrine. On petitioners’ claim that the charge for violation of Article 365 of the RPC "absorbs" the charges for violation of PD 1067, PD 984, and RA 7942, suffice it to say that a mala in se felony (such as Reckless Imprudence Resulting in Damage to Property) cannot absorb mala prohibita crimes (such as those violating PD 1067, PD 984, and RA 7942). What makes the former a felony is criminal intent (dolo) or negligence (culpa); what makes the latter crimes are the special laws enacting them. Thus, People v. Relova is no authority for petitioners’ claim against multiple prosecutions based on a single act not only because the question of double jeopardy is not at issue here, but also because, as the Court of Appeals held, petitioners are being prosecuted for an act or incident punished by four national statutes and not by an ordinance and a national statute. In short, petitioners, if ever, fall under the first sentence of Section 21, Article III which prohibits multiple prosecution for the same offense, and not, as in Relova, for offenses arising from the same incident.  ARTICLE IV - CITIZENSHIP Section 3. Philippine citizenship may be lost or reacquired in the manner provided by law. Q. Does the Philippines allow dual citizenship? A. Yes. For instance, a Filipino may have dual citizenship if he is made a citizen of another country by simply operation of law, eg. If a child of Filipino parents is born in a country which applies jus soli. Q. May a Filipino aquire dual citizenship by choice? A. Yes. R.A. 9225 says: “Any provision of law to the contrary notwithstanding, Filipinos who have lost their natural-born citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the oath of allegiance to the Republic . . . “Natural born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath.” Q. Whaat does the oath say? A. It says: "I _____________________, solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the Philippines . . . and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; . . ."

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

Q. Does this mean “dual allegiance.” A. The oath is silent about allegiance to a foreign country. But it does say that the Philippines has “supreme authority.” REPUBLIC ACT NO. 9225 AN ACT MAKING THE CITIZENSHIP OF PHILIPPINE CITIZENS WHO ACQUIRE FOREIGN CITIZENSHIP PERMANENT, AMENDING FOR THE PURPOSE COMMONWEALTH ACT NO. 63, AS AMENDED, AND FOR OTHER PURPOSES. Section 1. Short Title. — This Act shall be known as the "Citizenship Retention and Re-acquisition Act of 2003." Sec. 2. Declaration of Policy. — It is hereby declared the policy of the State that all Philippine citizens who become citizens of another country shall be deemed not to have lost their Philippine citizenship under the conditions of this Act. Sec. 3. Retention of Philippine Citizenship. — Any provision of law to the contrary notwithstanding, natural-born citizens of the Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the following oath of allegiance to the Republic: "I _________________, solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines, and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I impose this obligation upon myself voluntarily without mental reservation or purpose of evasion." Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath. Sec. 4. Derivative Citizenship. — The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act shall be deemed citizens of the Philippines. Sec. 5. Civil and Political Rights and Liabilities. — Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: (1) Those intending to exercise their right of suffrage must meet the requirements under Sec. 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003" and other existing laws; (2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation

TRUTH. HONOR. EXCELLENCE.

31

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

of any and all foreign citizenship before any public officer authorized to administer an oath; (3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to their assumption of office: provided, that they renounce their oath of allegiance to the country where they took that oath; (4) Those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit to engage in such practice; and (5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those who: (a) are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or (b) are in active service as commissioned or noncommissioned officers in the armed forces of the country which they are naturalized citizens. Sec. 6. Separability Clause. — If any Sec. or provision of this Act is held unconstitutional or invalid, any other Sec. or provision not affected thereby shall remain valid and effective. Sec. 7. Repealing Clause. — All laws, decrees, orders, rules and regulations inconsistent with the provisions of this Act are hereby repealed or modified accordingly. Sec. 8. Effectivity Clause. — This Act shall take effect after fifteen (15) days following its publication in the Official Gazette or two (2) newspapers of general circulation.  ARTICLE V - SUFFRAGE Section 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year, and in the place wherein they propose to vote, for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage. Doctrines Q. May an immigrant or permanent resident recognized as such by the country where he lives vote in a Philippine election. A. According to R.A. 9189 he may provided that he files an affidavit “prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act.” Q. What is the significance of the affidavit? A. It is an indication that he never intended to abandon his domicile in the Philippines. Q. What happens if he never files such affidavit?

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

A. Then he is deemed disqualified to vote for having lost his domicile in the Philippines. Q. May a former natural born Filipino citizen who has reacquired Filipino citizenship under the Dual Citizenship law (9225) vote? A. Yes, provided that he or she satisfy the requirements of the Absentee Voting Law as authorized by the Constitution. Nicolas-Lewis v Comelec, G.R. No. 162759, August 4, 2006. Q. May a former natural born Filipino citizen who has reacquired Filipino citizenship under the Dual Citizenship law vote even without the required (six month) residence? A. Yes, provided the person files the affidavit as required in the Absentee Voting Law as authorized by the Constitution. Lewis v Comelec, G.R. No. 162759, August 4. 2006. Q. Who may be repatriated? A. Under current law only (1) women who lost citizenship by marriage and (2) those who lost citizenship for political or economic reasons may be repatriated. Tabasa v. CA, August 29, 2006 Republic Act 9189 AN ACT PROVIDING FOR A SYSTEM OF OVERSEAS ABSENTEE VOTING BY QUALIFIED CITIZENS OF THE PHILIPPINES ABROAD, APPROPRIATING FUNDS THEREFOR, AND FOR OTHER PURPOSES Sec. 4. Coverage. All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least eighteen (18) years of age on the day of elections, may vote for president, vicepresident, senators and party-list representatives. Sec. 5. Disqualifications. The following shall be disqualified from voting under this Act: 1. Those who have lost their Filipino citizenship in accordance with Philippine laws; 2. Those who have expressly renounced their Philippine citizenship and who have pledged allegiance to a foreign country; 3. Those who have committed and are convicted in a final judgment by a court or tribunal of an offense punishable by imprisonment of not less than one (1) year, including those who have committed and been found guilty of Disloyalty as defined under Article 137 of the Revised Penal Code, such disability not having been removed by plenary pardon or amnesty; Provided, however, That any person disqualified to vote under this subsection shall automatically acquire the right to vote upon expiration of five (5) years after service of sentence; Provided, further, That the Commission may take cognizance of final judgments issued by foreign courts or tribunals only on the basis of reciprocity and subject to the formalities and processes prescribed by the Rules of Court on execution of judgments; 4. An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has not applied

TRUTH. HONOR. EXCELLENCE.

32

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

for citizenship in another country. Failure to return shall be the cause for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia. 5. Any citizen of the Philippines abroad previously declared insane or incompetent by competent authority in the Philippines or abroad, as verified by the Philippine embassies, consulates or foreign service establishments concerned, unless such competent authority subsequently certifies that such person is no longer insane or incompetent. Sec. 24. Prohibited Acts. In addition to the prohibited acts provided by law, it shall be unlawful: 24.1. For any officer or employee of the Philippine government to influence or attempt to influence any person covered by this Act to vote, or not to vote, for a particular candidate. Nothing in this Act shall be deemed to prohibit free discussion regarding politics or candidates for public office. 24.2. For any person to deprive any person of any right secured in this Act, or to give false information as to his/her name, address, or period of residence for the purposes of establishing his/her eligibility or ineligibility to register or vote under this Act; or to conspire with another person for the purpose of encouraging the giving of false information in order to establish the eligibility or ineligibility of any individual to register or vote under this Act; or, to pay, or offer to pay, or to accept payment either for application to vote in absentia or for voting; 24.3. For any person to tamper with the ballot, the mail containing the ballots for overseas absentee voters, the election returns, including the destruction, mutilation and manipulation thereof; 24.4. For any person to steal, destroy, conceal, mutilate or alter any record, document or paper as required for purposes of this Act; 24.5. For any deputized agent to refuse without justifiable ground, to serve or continue serving, or to comply with his/her sworn duties after acceptance of his/her appointment; 24.6. For any public officer or employee who shall cause the preparation, printing, distribution of information material, or post the same in websites without the prior approval of the Commission; 24.7. For any public officer or employee to cause the transfer, promotion, extension, recall of any member of the foreign service corps, including members of the attached agencies, or otherwise cause the movement of any such member from his current post or position one (1) year before and three (3) months after the day of elections, without securing the prior approval of the Commission; 24.8. For any person who, after being deputized by the Commission to undertake activities in connection with the implementation of this Act, shall campaign for or assist, in whatever manner, candidates in the elections; 24.9. For any person who is not a citizen of the Philippines to participate, by word or deed, directly or indirectly through qualified organizations/associations, in any manner and at any stage of the Philippine political process abroad, including participation in the campaign and elections. The provision of existing laws to the contrary notwithstanding, and with due regard to the Principle of Double Criminality, the

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

prohibited acts described in this section are electoral offenses and punishable in the Philippines. The penalties imposed under Section 264 of the Omnibus Election Code, as amended, shall be imposed on any person found guilty of committing any of the prohibited acts as defined in this section: Provided, That the penalty of prision mayor in its minimum period shall be imposed upon any person found guilty of Section 24.3 hereof without the benefit of the operation of the Indeterminate Sentence Law. If the offender is a public officer or a candidate, the penalty shall be prision mayor in its maximum period. In addition, the offender shall be sentenced to suffer perpetual disqualification to hold public office and deprivation of the right to vote. Immigrants and permanent residents who do not resume residence in the Philippines as stipulated in their affidavit under Section 5(d) within three (3) years after approval of his/her registration under this Act and yet vote in the next elections contrary to the said section, shall be penalized by imprisonment of not less than one (1) year, and shall be deemed disqualified as provided in Section 5(c) of this Act. His/her passport shall be stamped "not allowed to vote". NICOLAS-LEWIS V COMELEC Petitioners are successful applicants for recognition of Philippine citizenship under R.A. 9225 which accords to such applicants the right of suffrage, among others. Long before the May 2004 national and local elections, petitioners sought registration and certification as "overseas absentee voter" only to be advised by the Philippine Embassy in the United States that, per a COMELEC letter to the Department of Foreign Affairs dated September 23, 2003, they have yet no right to vote in such elections owing to their lack of the one-year residence requirement prescribed by the Constitution. The same letter, however, urged the different Philippine posts abroad not to discontinue their campaign for voter’s registration, as the residence restriction adverted to would contextually affect merely certain individuals who would likely be eligible to vote in future elections. Issue: WON petitioners and others who might have meanwhile retained and/or reacquired Philippine citizenship pursuant to R.A. 9225 may vote as absentee voter under R.A. 9189? Held: YES. As may be noted, there is no provision in the dual citizenship law - R.A. 9225 - requiring "duals" to actually establish residence and physically stay in the Philippines first before they can exercise their right to vote. On the contrary, R.A. 9225, in implicit acknowledgment that “duals” are most likely non-residents, grants under its Section 5(1) the same right of suffrage as that granted an absentee voter under R.A. 9189. It cannot be overemphasized that R.A. 9189 aims, in essence, to enfranchise as much as possible all overseas Filipinos who, save for the residency requirements exacted of an ordinary voter under ordinary conditions, are qualified to vote. Considering the unison intent of the Constitution and R.A. 9189 and the expansion of the scope of that law with the passage of R.A. 9225, the irresistible conclusion is that "duals" may now exercise the right of suffrage thru the absentee voting scheme and as overseas absentee voters. While perhaps not determinative of the issue tendered herein, we note that the expanded thrust of R.A. 9189 extends also to

TRUTH. HONOR. EXCELLENCE.

33

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

what might be tag as the next generation of "duals". This may be deduced from the inclusion of the provision on derivative citizenship in R.A. 9225. It is very likely that a considerable number of those unmarried children below eighteen (18) years of age had never set foot in the Philippines. Now then, if the next generation of "duals" may nonetheless avail themselves the right to enjoy full civil and political rights under Section 5 of the Act, then there is neither no rhyme nor reason why the petitioners and other present day "duals," provided they meet the requirements under Section 1, Article V of the Constitution in relation to R.A. 9189, be denied the right of suffrage as an overseas absentee voter. Congress could not have plausibly intended such absurd situation.

TABASA V. CA Joevanie Arellano Tabasa was a natural-born citizen of the Philippines. In 1968, when petitioner was seven years old, his father, Rodolfo Tabasa, became a naturalized citizen of the United States. By derivative naturalization (citizenship derived from that of another as from a person who holds citizenship by virtue of naturalization), petitioner also acquired American citizenship. Petitioner arrived in the Philippines in 1995, and was admitted as a “balikbayan” for one year. Thereafter, petitioner was arrested and detained by agent Wilson Soluren of the BID, pursuant to a letter from the Consul General of the US Embassy that his passport had been revoked by the US State Dept. Hence, Tabasa became an undocumented and undesirable alien and summarily deported pursuant to Law and Intelligence Instructions No. 53 issued by then Commissioner Miriam Defensor Santiago to effect his deportation. Petitioner filed a Supplemental Petition alleging that he had acquired Filipino citizenship by repatriation in accordance with Republic Act No. 8171 (RA 8171), and that because he is now a Filipino citizen, he cannot be deported or detained by the respondent Bureau. Issue: WON petitioner has validly reacquired Philippine citizenship under RA 8171. (If there is no valid repatriation, then he can be summarily deported for his being an undocumented alien.) Held: NO. RA 8171, “An Act Providing for the Repatriation of Filipino Women Who Have Lost Their Philippine Citizenship by Marriage to Aliens and of Natural-Born Filipinos,” was enacted on October 23, 1995. It provides for the repatriation of only two (2) classes of persons, viz: Filipino women who have lost their Philippine citizenship by marriage to aliens and natural-born Filipinos who have lost their Philippine citizenship, including their minor children, on account of political or economic necessity, may reacquire Philippine citizenship through repatriation in the manner provided in Section 4 of Commonwealth Act No. 63, as amended: Provided, That the applicant is not a: (1) Person opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing organized government; (2) Person defending or teaching the necessity or propriety of violence, personal assault, or association for the predominance of their ideas; (3) Person convicted of crimes involving moral turpitude; or (4) Person suffering from mental alienation or incurable contagious diseases.

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

To reiterate, the only persons entitled to repatriation under RA 8171 are the following: (a) Filipino women who lost their Philippine citizenship by marriage to aliens; and (b) Natural-born Filipinos including their minor children who lost their Philippine citizenship on account of political or economic necessity. Petitioner theorizes that he could be repatriated under RA 8171 because he is a child of a natural-born Filipino, and that he lost his Philippine citizenship by derivative naturalization when he was still a minor. Petitioner overlooks the fact that the privilege of repatriation under RA 8171 is available only to natural-born Filipinos who lost their citizenship on account of political or economic necessity, and to the minor children of said naturalborn Filipinos. This means that if a parent who had renounced his Philippine citizenship due to political or economic reasons later decides to repatriate under RA 8171, his repatriation will also benefit his minor children according to the law. This includes a situation where a former Filipino subsequently had children while he was a naturalized citizen of a foreign country. The repatriation of the former Filipino will allow him to recover his natural-born citizenship and automatically vest Philippine citizenship on his children of jus sanguinis or blood relationship: the children acquire the citizenship of their parent(s) who are natural-born Filipinos. To claim the benefit of RA 8171, however, the children must be of minor age at the time the petition for repatriation is filed by the parent. This is so because a child does not have the legal capacity for all acts of civil life much less the capacity to undertake a political act like the election of citizenship. On their own, the minor children cannot apply for repatriation or naturalization separately from their parents. In the case at bar, there is no dispute that petitioner was a Filipino at birth. In 1968, while he was still a minor, his father was naturalized as an American citizen; and by derivative naturalization, petitioner acquired U.S. citizenship. Petitioner now wants us to believe that he is entitled to automatic repatriation as a child of natural-born Filipinos who left the country due to political or economic necessity. This is absurd. Petitioner was no longer a minor at the time of his “repatriation” on June 13, 1996. The privilege under RA 8171 belongs to children who are of minor age at the time of the filing of the petition for repatriation. Neither can petitioner be a natural-born Filipino who left the country due to political or economic necessity. Clearly, he lost his Philippine citizenship by operation of law and not due to political or economic exigencies. It was his father who could have been motivated by economic or political reasons in deciding to apply for naturalization. The decision was his parent’s and not his. The privilege of repatriation under RA 8171 is extended directly to the natural-born Filipinos who could prove that they acquired citizenship of a foreign country due to political and economic reasons, and extended indirectly to the minor children at the time of repatriation. In sum, petitioner is not qualified to avail himself of repatriation under RA 8171. However, he can possibly reacquire Philippine citizenship by availing of the Citizenship Retention and Reacquisition Act of 2003 (Republic Act No. 9225) by simply taking an oath of allegiance to the Republic of the Philippines. Petitioner Tabasa, whose passport was cancelled after his admission into the country, became an undocumented alien who can be summarily deported. His subsequent “repatriation”

TRUTH. HONOR. EXCELLENCE.

34

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

FR. JOAQUIN BERNAS, S.J.

cannot bar such deportation especially considering that he has no legal and valid reacquisition of Philippine citizenship.

standards for delegation. Gerochi v.DENR, G.R. No. 159796, July 17, 2007



GEROCHI V. DENR

ARTICLE VI - THE LEGISLATIVE DEPARTMENT

Congress enacted the Electric Power Industry Reform Act of 2001 (EPIRA) on June 8, 2001; on June 26, 2001, it took effect.

Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum. Doctrine The Epira Law says: SECTION 34. Universal Charge. — Within one (1) year from the effectivity of this Act, a universal charge to be determined, fixed and approved by the ERC, shall be imposed on all electricity end-users for the following purposes: (a) Payment for the stranded debts in excess of the amount assumed by the National Government and stranded contract costs of NPC and as well as qualified stranded contract costs of distribution utilities resulting from the restructuring of the industry; (b) Missionary electrification; (c) The equalization of the taxes and royalties applied to indigenous or renewable sources of energy vis-à-vis imported energy fuels; (d) An environmental charge equivalent to one-fourth of one centavo per kilowatt-hour (P0.0025/kWh), which shall accrue to an environmental fund to be used solely for watershed rehabilitation and management. Said fund shall be managed by NPC under existing arrangements; and (e) A charge to account for all forms of cross-subsidies for a period not exceeding three (3) years. The universal charge shall be a non-bypassable charge which shall be passed on and collected from all end-users on a monthly basis by the distribution utilities. The ultimate issues in the case at bar are: 1) Whether or not, the Universal Charge imposed under Sec. 34 of the EPIRA is a tax; and 2) Whether or not there is undue delegation of legislative power to tax on the part of the ERC The conservative and pivotal distinction between these two powers rests in the purpose for which the charge is made. If generation of revenue is the primary purpose and regulation is merely incidental, the imposition is a tax; but if regulation is the primary purpose, the fact that revenue is incidentally raised does not make the imposition a tax. From the aforementioned purposes, it can be gleaned that the assailed Universal Charge is not a tax, but an exaction in the exercise of the State's police power. Public welfare is surely promoted. Moreover, it is a well-established doctrine that the taxing power may be used as an implement of police power. The Court finds that the EPIRA, read and appreciated in its entirety, in relation to Sec. 34 thereof, is complete in all its essential terms and conditions, and that it contains sufficient

JEN LAYGO 4D 2007

National Power Corporation-Strategic Power Utilities Group (NPC-SPUG) filed with respondent Energy Regulatory Commission (ERC) a petition for the availment from the Universal Charge of its share for Missionary Electrification. NPC filed another petition with ERC, docketed as ERC Case No. 2002-194, praying that the proposed share from the Universal Charge for the Environmental charge of P0.0025 per kilowatt-hour (/kWh), or a total of P119,488,847.59, be approved for withdrawal from the Special Trust Fund (STF) managed by respondent Power Sector Assets and Liabilities Management Group (PSALM) for the rehabilitation and management of watershed areas. ERC then issued an Order in ERC Case No. 2002-165 provisionally approving the computed amount of P0.0168/kWh as the share of the NPC-SPUG from the Universal Charge for Missionary Electrification and authorizing the National Transmission Corporation (TRANSCO) and Distribution Utilities to collect the same from its end-users on a monthly basis. On the basis of the said ERC decisions, respondent Panay Electric Company, Inc. (PECO) charged petitioner Romeo P. Gerochi and all other end-users with the Universal Charge as reflected in their respective electric bills starting from the month of July 2003. Issues/Held: (1) WON the Universal Charge under the EPIRA is a tax? NO. The power to tax is an incident of sovereignty and is unlimited in its range, acknowledging in its very nature no limits, so that security against its abuse is to be found only in the responsibility of the legislature which imposes the tax on the constituency that is to pay it. It is based on the principle that taxes are the lifeblood of the government, and their prompt and certain availability is an imperious need. Thus, the theory behind the exercise of the power to tax emanates from necessity; without taxes, government cannot fulfill its mandate of promoting the general welfare and well-being of the people. On the other hand, police power is the power of the state to promote public welfare by restraining and regulating the use of liberty and property. It is the most pervasive, the least limitable, and the most demanding of the three fundamental powers of the State. The justification is found in the Latin maxims salus populi est suprema lex (the welfare of the people is the supreme law) and sic utere tuo ut alienum non laedas (so use your property as not to injure the property of others). As an inherent attribute of sovereignty which virtually extends to all public needs, police power grants a wide panoply of instruments through which the State, as parens patriae, gives effect to a host of its regulatory powers. We have held that the power to "regulate" means the power to protect, foster, promote, preserve, and control, with due regard for the interests, first and foremost, of the public, then of the utility and of its patrons.

TRUTH. HONOR. EXCELLENCE.

35

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

FR. JOAQUIN BERNAS, S.J.

The conservative and pivotal distinction between these two powers rests in the purpose for which the charge is made. If generation of revenue is the primary purpose and regulation is merely incidental, the imposition is a tax; but if regulation is the primary purpose, the fact that revenue is incidentally raised does not make the imposition a tax.

Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative. (4) Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section.

In exacting the assailed Universal Charge through Sec. 34 of the EPIRA, the State's police power, particularly its regulatory dimension, is invoked. Such can be deduced from Sec. 34 which enumerates the purposes for which the Universal Charge is imposed and which can be amply discerned as regulatory in character.

Doctrine Q. What is the formula to follow for determining the number of a additional seats a party is entitled to beyond the first two? A. We reiterate that the prevailing formula for the computation of additional seats for party-list winners is the formula stated in the landmark case of Veterans, viz:

(2) Whether or not there is undue delegation of legislative power to tax on the part of the ERC? All that is required for the valid exercise of this power of subordinate legislation is that the regulation be germane to the objects and purposes of the law and that the regulation be not in contradiction to, but in conformity with, the standards prescribed by the law. These requirements are denominated as the completeness test and the sufficient standard test. st

Under the 1 test, the law must be complete in all its terms and conditions when it leaves the legislature such that when it reaches the delegate, the only thing he will have to do is to nd enforce it. The 2 test mandates adequate guidelines or limitations in the law to determine the boundaries of the delegate's authority and prevent the delegation from running riot. The Court finds that the EPIRA is complete in all its essential terms and conditions, and that it contains sufficient standards. As to the second test, provisions of the EPIRA such as, among others, “to ensure the total electrification of the country and the quality, reliability, security and affordability of the supply of electric power” and “watershed rehabilitation and management” meet the requirements for valid delegation, as they provide the limitations on the ERC’s power to formulate the IRR. These are sufficient standards. Section 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a partylist system of registered national, regional, and sectoral parties or organizations. (2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector. (3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory.

JEN LAYGO 4D 2007

Additional seats for concerned party b

=

No. of votes of concerned party -----------------------No. of votes of first party

x

/ No. of additional seats allocated to the first party

PARTIDO NG MANGGAGAWA V. COMELEC Section 11(b) and Section 12 of R.A. 7941 (Party-List System Act) provide that "the parties, organizations, and coalitions receiving at least 2% of the total votes cast for the party-list system shall be entitled to one seat each, provided that those garnering more than 2% of the votes shall be entitled to additional seats in proportion to their total number of votes…” Several party-list participants sent queries to COMELEC regarding the formula to be adopted in computing the additional seats for the party-list winners in the May 10, 2004 elections. In response, Comelec issued Resolution 6835, adopting the simplified formula of "one additional seat per additional two percent of the total party-list votes." On the other hand, the following formulas were applied by the SC in Veterans Federation Party vs. COMELEC: - For the party-list candidate garnering the highest number of votes: Number of votes of first party ----------------------------------------Total votes for party-list system

=

Proportion of votes of first party relative to total votes for the party-list system

- For additional seats of other parties who reached the required 2% mark: No. of votes of Concerned party -------------------------------------------No. of votes of first party

x

No. of additional seats allocated to the first party

Such formula was reiterated in Ang Bagong Bayani-OFW Labor Party vs. COMELEC, et al. and Bayan Muna vs. COMELEC. But in granting the MR in Bayan Muna v. Comelec, SC adopted the simplified Comelec formula of 1 additional seat per additional 2% of the total party-list votes garnered. It declared BUHAY entitled to 1 additional seat for garnering 4.46%. Petitioners PM and BUTIL, together with CIBAC, filed a Joint Motion for Immediate Proclamation with Comelec en banc. They prayed that they be declared also as entitled to 1 additional seat each. As basis, they cited the formula used by the Court in Ang Bagong Bayani-OFW Labor Party v. COMELEC. Issue: What formula should be applied in computing for additional seats for winners in the party-list elections?

TRUTH. HONOR. EXCELLENCE.

36

THE WOMEN OF ALEITHEIA

POLITICAL LAW REVIEW

FR. JOAQUIN BERNAS, S.J.

Held: The formula in the landmark case of Veterans prevails. Step One. Rank all the participating parties, organizations and coalitions from the highest to the lowest based on the number of votes they each received. Step Two. Determine the number of seats the first party is entitled to. Since the distribution is based on proportional representation, the number of seats to be allotted to the other parties cannot possibly exceed that to which the first party is entitled by virtue of its obtaining the most number of votes. st Apply the following formula to get the number of seats of the 1 party: Number of votes of first party ---------------------------------------------- = Total votes for Party-List System

Proportion of votes of first party relative to total votes for party-list system

If the proportion of votes received by the first party without rounding it off is equal to at least six percent of the total valid votes cast for all the party list groups, then the first party shall be entitled to two additional seats or a total of three seats overall. If the proportion of votes without a rounding off is equal to or greater than four percent, but less than six percent, then the first party shall have one additional or a total of two seats. And if the proportion is less than four percent, then the first party shall not be entitled to any additional seat. Step Three. Solve for the number of additional seats that the other qualified parties are entitled to, based on proportional representation. The formula is encompassed by the following complex fraction: No. of votes of Concerned party -------------------------------------------------No. of votes of first party

No. of additional x seats allocated to the first party

Section 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. Doctrine Where it is no disputed that respondent has already been proclaimed and taken his oath of office as a Member of the House of Representatives the Comelec no longer has jurisdiction. Vinzons-Chato v. Comelec, GR 172131, April 2, 2007.

VINZONS-CHATO V. COMELEC Petitioner Chato and respondent Renato J. Unico were among the candidates for the lone congressional district of Camarines Norte during the May 10, 2004 synchronized national and local elections. During the canvassing of the election returns before the Municipal Board of Canvassers of Labo (MBC Labo) Chato raised several objections and pointed to manifest errors or obvious discrepancies in the election returns. Her objections were denied, and PBC stated that preproclamation controversy was not allowed for the election of Members of the House. Then, PBC proclaimed respondent Unico as representativeelect of the lone congressional district of Camarines Norte. Petitioner Chato filed with the COMELEC a Petition alleging manifest errors. Comelec initially ordered the suspension of the effects of the proclamation of respondent Unico. But it afterwards lifted the said order on the ground that respondent Unico’s proclamation and taking of oath of office had not only divested the Commission of any jurisdiction to pass upon his election, returns, and qualifications, but also automatically conferred jurisdiction to another electoral tribunal. In the assailed Resolution dated March 17, 2006, the COMELEC en banc denied Chato’s MR, ruling that the Commission already lost jurisdiction over the case in view of the fact that Unico had already taken his oath. Issue: WON Comelec committed grave abuse? Held: NO. It is not disputed that respondent Unico has already been proclaimed and taken his oath of office. Hence, Comelec had already lost jurisdiction over Chato’s petition. The issues raised by petitioner Chato essentially relate to the canvassing of returns and alleged invalidity of respondent Unico’s proclamation. These are matters that are best addressed to the sound judgment and discretion of the HRET. Significantly, the allegation that respondent Unico’s proclamation is null and void does not divest the HRET of its jurisdiction. Further, for the Court to take cognizance of petitioner Chato’s election protest against respondent Unico would be to usurp the constitutionally mandated functions of the HRET. Petitioner Chato’s remedy would have been to file an election protest before the said tribunal, not this petition for certiorari. The special civil action of certiorari is available only if there is concurrence of the essential requisites, to wit: (1) the tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack of jurisdiction, and (b) there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law to annul or modify the proceeding. There must be capricious, arbitrary and whimsical exercise of power for certiorari to prosper. Doctrine/Notes: Taking of oath (not proclamation) is the operative act that vests jurisdiction on HRET. If proclaimed but has not yet taken oath, Comelec still has jurisdiction.

JEN LAYGO 4D 2007

TRUTH. HONOR. EXCELLENCE.

37

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

Section 21. 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. Doctrine Q. The following provision is found in Proc. 1 of Cory Aquino issued in February 1986: ““No member or staff of the Commission shall be required to testify or produce evidence in any judicial, legislative or administrative proceeding concerning matters within its official cognizance.” Is this still in effect? A. No. This is incompatible with the power of legislative investigation, with the character of public office as a public trust, and with the right to information. It is deemed repealed by the 1986 Constitution. Sabio v. Gordon, G.R. 174340, October 12, 2006. SABIO V. GORDON President Aquino issued Executive Order No. 1, creating the Presidential Commission on Good Government (PCGG). Sec. 4(b) of EO1 provides that: “No member or staff of the Commission shall be required to testify or produce evidence in any judicial, legislative or administrative proceeding concerning matters within its official cognizance.” Senator Defensor Santiago introduced Resolution 455, “directing an inquiry in aid of legislation on the anomalous losses incurred by the Phil. Overseas Telecommunications Corporation (POTC), Philippine Communications Satellite Corporation (PHILCOMSAT), and PHILCOMSAT Holdings Corporation (PHC) due to the alleged improprieties in their operations by their respective Board of Directors.” Chief of Staff Inocencio, under authority of Senator Richard J. Gordon, wrote Chairman Sabio of the PCGG, inviting him to be one of the resource persons in the public meeting jointly conducted by the Committee on Government Corporations and Public Enterprises and Committee on Public Services. The purpose of the public meeting was to deliberate on Senate Res. No. 455. Chairman Sabio declined the invitation because of prior commitment. At the same time, he invoked Section 4(b) of EO1. A Subpoena Ad Testificandum was thus issued by the Senate Committee. Again, Chairman Sabio refused to appear. Senate thus issued an Order directing its Sergeant-At-Arms to place Chairman Sabio and his Commissioners under arrest for contempt Chairman Sabio then filed a petition for habeas corpus. Issue: WON Sec4(b) of EO1 is repealed by the Constitution? Held: YES. The 1987 Constitution recognizes the power of investigation, not just of Congress, but also of “any of its committee.” It constitutes a direct conferral of investigatory power upon the committees and it means that the mechanisms which the Houses can take in order to effectively perform its investigative function are also available to the committees. Article VI, Section 21 grants the power of inquiry not only to the Senate and the House of Representatives, but also to any of their respective committees. Clearly, there is a direct conferral

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

of power to the committees. Father Bernas, in his Commentary on the 1987 Constitution, correctly pointed out its significance: “It should also be noted that the Constitution explicitly recognizes the power of investigation not just of Congress but also of “any of its committees.” This is significant because it constitutes a direct conferral of investigatory power upon the committees and it means that the means which the Houses can take in order to effectively perform its investigative function are also available to the Committees.” Section 4(b) is directly repugnant with Article VI, Section 21. Section 4(b) exempts the PCGG members and staff from the Congress’ power of inquiry. Nowhere in the Constitution is any provision granting such exemption. Congress’ power of inquiry, being broad, encompasses everything that concerns the administration of existing laws as well as proposed or possibly needed statutes. It even extends “to government agencies created by Congress and officers whose positions are within the power of Congress to regulate or even abolish.” PCGG belongs to this class. Certainly, a mere provision of law cannot pose a limitation to the broad power of Congress, in the absence of any constitutional basis. One important limitation on the Congress’ power of inquiry is that “the rights of persons appearing in or affected by such inquiries shall be respected.” This is just another way of saying that the power of inquiry must be “subject to the limitations placed by the Constitution on government action.” As to the right to privacy, it is not absolute where there is an overriding compelling state interest. In Morfe v. Mutuc, the Court, in line with Whalen v. Roe, employed the rational basis relationship test when it held that there was no infringement of the individual’s right to privacy as the requirement to disclosure information is for a valid purpose, i.e., to curtail and minimize the opportunities for official corruption, maintain a standard of honesty in public service, and promote morality in public administration. In Valmonte v. Belmonte, the Court remarked that as public figures, the Members of the former Batasang Pambansa enjoy a more limited right to privacy as compared to ordinary individuals, and their actions are subject to closer scrutiny. Taking this into consideration, the Court ruled that the right of the people to access information on matters of public concern prevails over the right to privacy of financial transactions. Under the present circumstances, the alleged anomalies in the PHILCOMSAT, PHC and POTC, ranging in millions of pesos, and the conspiratorial participation of the PCGG and its officials are compelling reasons for the Senate to exact vital information from the directors and officers of Philcomsat Holdings Corporations, as well as from Chairman Sabio and his Commissioners to aid it in crafting the necessary legislation to prevent corruption and formulate remedial measures and policy determination regarding PCGG’s efficacy. There being no reasonable expectation of privacy on the part of those directors and officers over the subject covered by Senate Res. No. 455, it follows that their right to privacy has not been violated by the Senate Committees. Anent the right against self-incrimination, it must be emphasized that this right maybe invoked by the said directors and officers of Philcomsat Holdings Corporation only when the incriminating question is being asked, since they have no way of knowing in advance the nature or effect of the questions to be asked of them.” That this right may possibly be violated or abused is no

TRUTH. HONOR. EXCELLENCE.

38

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

ground for denying respondent Senate Committees their power of inquiry. The consolation is that when this power is abused, such issue may be presented before the courts. Section 22. The heads of departments may, upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session. Doctrine Q. What is the difference between Section 21 and Section 22? A. Article VI, Section 21 is about legislative investigations in aid of legislation. Anyone may be summoned, even department heads. Section 22 is institutionalization of “oversight function.” Department secretaries may not be compelled. But whether in Section 21 or Section 22, executive privilege may be raised by the President or by authority of the President. The claim must be specific. The Court ultimately judges whether there is executive privilege. Executive privilege simply means the right of the President to withhold information about some types of information. Only the President has authority by reason of office to claim executive privilege. Senate v. Ermita, G.R. No. 169777, April 20. 2006. SENATE V. ERMITA In September 2005, the Committee of the Senate as a whole issued invitations to various officials of the Executive Department for them to appear as resource speakers in a public hearing on the railway project of the North Rail Project. The public hearing was sparked by a privilege speech of Senator Juan Ponce Enrile urging the Senate to investigate the alleged overpricing and other unlawful provisions of the contract covering the North Rail Project. The Senate Committee on National Defense and Security likewise issued invitations to officials of the AFP on another matter. Thereafter, Senate President Drilon received from Executive Secretary Ermita a letter requesting postponement of the hearing but Drilon wrote back that it was too late to postpone it. The President then issued E.O. 464, containing the ff provisions: SECTION 1. Appearance by Heads of Departments Before Congress. – In accordance with Article VI, Section 22 of the Constitution and to implement the Constitutional provisions on the separation of powers between co-equal branches of the government, all heads of departments of the Executive Branch of the government shall secure the consent of the President prior to appearing before either House of Congress. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall only be conducted in executive session. SECTION. 2. Nature, Scope and Coverage of Executive Privilege. –

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

(a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental to the operation of government and rooted in the separation of powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees provides that Public Officials and Employees shall not use or divulge confidential or classified information officially known to them by reason of their office and not made available to the public to prejudice the public interest. Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order, including: i. Conversations and correspondence between the President and the public official covered by this executive order; ii. Military, diplomatic and other national security matters which in the interest of national security should not be divulged; iii. Information between inter-government agencies prior to the conclusion of treaties and executive agreements; iv. Discussion in close-door Cabinet meetings; v. Matters affecting national security and public order. (b) Who are covered. – The following are covered by this executive order: i. Senior officials of executive departments who in the judgment of the department heads are covered by the executive privilege; ii. Generals and flag officers of the Armed Forces of the Philippines and such other officers who in the judgment of the Chief of Staff are covered by the executive privilege; iii. Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other officers who in the judgment of the Chief of the PNP are covered by the executive privilege; iv. Senior national security officials who in the judgment of the National Security Adviser are covered by the executive privilege; and v. Such other officers as may be determined by the President. SECTION 3. Appearance of Other Public Officials Before Congress. – All public officials enumerated in Section 2 (b) hereof shall secure prior consent of the President prior to appearing before either House of Congress to ensure the observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights of public officials appearing in inquiries in aid of legislation.

Hence, Drilon received from Ermita a copy of E.O. 464, and another letter informing him “that officials of the Executive Department invited to appear at the hearing will not be able to attend the same without the consent of the President, pursuant to E.O. 464” and that “said officials have not secured the required consent from the President.” Despite the communications received from Ermita and Gen. Senga, the investigation scheduled by the Committee on National Defense and Security pushed through, with only Col. Balutan and Brig. Gen. Gudani attending. For defying President Arroyo’s order barring military personnel from testifying before legislative inquiries without her approval, Brig. Gen. Gudani and Col. Balutan were relieved from their military posts and were made to face court martial proceedings. All the petitions pray for the issuance of a Temporary Restraining Order enjoining respondents from implementing, enforcing, and observing E.O. 464. Issue: Whether E.O. 464 is constitutional? Held: SECTION 1 IS CONSTITUTIONAL. Section 1 of EO 464 specifically applies to department heads. It does not, unlike Section 3, require a prior determination by any official whether they are covered by E.O. 464. The President herself has, through the challenged order, made the determination that they are. Further, unlike also Section 3, the coverage of department heads under Section 1 is not made to depend on the department heads’ possession of any information which might be covered by executive privilege. In fact, in marked contrast to

TRUTH. HONOR. EXCELLENCE.

39

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

Section 3 vis-à-vis Section 2, there is no reference to executive privilege at all. Rather, the required prior consent under Section 1 is grounded on Article VI, Section 22 of the Constitution on what has been referred to as the question hour. When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such department heads must give a report of their performance as a matter of duty. In such instances, Section 22, in keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in which Congress requires their appearance is “in aid of legislation” under Section 21, the appearance is mandatory. When Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are department heads. Only one executive official may be exempted from this power — the President on whom executive power is vested, and members of the Supreme Court. Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution and the absence of any reference to inquiries in aid of legislation, must be construed as limited in its application to appearances of department heads in the question hour contemplated in Section 22 of Article VI. The requirement then to secure presidential consent under Section 1, limited as it is only to appearances in the question hour, is valid on its face. SECTION 3 AND SECTION 2[B] ARE UNCONSTITUIONAL. Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the consent of the President prior to appearing before either house of Congress. The enumeration is broad. It covers all senior officials of executive departments, all officers of the AFP and the PNP, and all senior national security officials who, in the judgment of the heads of offices designated in the same section (i.e. department heads, Chief of Staff of the AFP, Chief of the PNP, and the National Security Adviser), are “covered by the executive privilege.” The enumeration also includes such other officers as may be determined by the President. In view thereof, whenever an official invokes E.O. 464 to justify his failure to be present, such invocation must be construed as a declaration to Congress that the President, or a head of office authorized by the President, has determined that the requested information is privileged, and that the President has not reversed such determination. Such declaration, however, even without mentioning the term “executive privilege,” amounts to an implied claim that the information is being withheld by the executive branch, by authority of the President, on the basis of executive privilege. Verily, there is an implied claim of privilege. By its very nature, the implied claim authorized by Section 3 of E.O. 464 is not accompanied by any specific allegation of the basis thereof (e.g., whether the information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.). While Section 2(a) enumerates the types of information that are covered by the privilege under the challenged order, Congress is left to speculate as to which among them is being referred to by the executive. The enumeration is not even intended to be comprehensive, but a mere statement of what is included in the phrase “confidential or classified information

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

between the President and the public officers covered by this executive order.” Absent then a statement of the specific basis of a claim of executive privilege, there is no way of determining whether it falls under one of the traditional privileges, or whether, given the circumstances in which it is made, it should be respected. The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per se. It is not asserted. It is merely implied. Instead of providing precise and certain reasons for the claim, it merely invokes E.O. 464, coupled with an announcement that the President has not given her consent. It is woefully insufficient for Congress to determine whether the withholding of information is justified under the circumstances of each case. It severely frustrates the power of inquiry of Congress. In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated. SECTION 2[A] IS CONSTITUTIONAL. No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding only on the heads of office mentioned in Section 2(b), on what is covered by executive privilege. It does not purport to be conclusive on the other branches of government. It may thus be construed as a mere expression of opinion by the President regarding the nature and scope of executive privilege. AS TO WHO MAY INVOKE PRIVILEGE: Petitioners, however, assert as another ground for invalidating the challenged order the alleged unlawful delegation of authority to the heads of offices in Section 2(b). Petitioner Senate of the Philippines claims that only the President can assert executive privilege to withhold information from Congress. Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a certain information is privileged, such determination is presumed to bear the President’s authority and has the effect of prohibiting the official from appearing before Congress, subject only to the express pronouncement of the President that it is allowing the appearance of such official. These provisions thus allow the President to authorize claims of privilege by mere silence. Such presumptive authorization, however, is contrary to the exceptional nature of the privilege. In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President the power to invoke the privilege. She may of course authorize the Executive Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must state that the authority is “By order of the President,” which means that he personally consulted with her. The privilege being an extraordinary power, it must be wielded only by the highest official in the executive hierarchy. In other words, the President may not authorize her subordinates to exercise such power. There is even less reason to uphold such authorization in the instant case where the authorization is not explicit but by mere silence. Section 3, in relation to Section 2(b), is further invalid on this score. SECTION 21 Power of Inquiry Who may be summoned? Anyone except the president and SC justices. Mandatory Excuse: executive privilege

TRUTH. HONOR. EXCELLENCE.

SECTION 22 Oversight Function Who may be called? Only members of the executive branch – department heads. Mere request by Congress Excuse: executive privilege

40

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

 ARTICLE VII - EXECUTIVE DEPARTMENT Section 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office. The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not, during his tenure, be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including governmentowned or controlled corporations and their subsidiaries. Doctrine Q. The Chief Presidential Legal Counsel has the duty of giving independent and impartial legal advice on the actions of the heads of various executive departments and agencies and to review investigations involving heads of executive departments and agencies, as well as other Presidential appointees. The PCGG, for its part, is charged with the responsibility, under the President, of recovering ill-gotten wealth. May the two offices be held by the same person. A. No. The two offices are incompatible. Without question, the PCGG is an agency under the Executive Department. Thus, the actions of the PCGG Chairman are subject to the review of the CPLC. Public Interest Group v Elma, G. R. No. 138965, June 30, 2006. PUBLIC INTEREST GROUP V. ELMA Magdangal Elma was appointed and took his oath of office as Chairman of the PCGG. Thereafter, during his tenure as PCGG Chairman, respondent Elma was appointed as Chief Presidential Legal Counsel. He took his oath of office but waived any remuneration that he may receive as CPLC. Petitioners contend that respondent Elma’s concurrent appointments as PCGG Chairman and CPLC contravenes Section 13, Article VII and Section 7, par. 2, Article IX-B of the 1987 Constitution. They also maintain that respondent Elma was holding incompatible offices. Art. VII Sec. 13: “The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure.” Art. IX-B. Sec. 7: “No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. xxx Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries.”

On the other hand, Elma alleges that the strict prohibition against holding multiple positions provided under Section 13,

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

Article VII applies only to heads of executive departments, their undersecretaries and assistant secretaries; it does not cover other public officials given the rank of Secretary, Undersecretary, or Assistant Secretary. He also claims that it is Sec.7, par. 2, Article IX-B that should be applied to the case. This provision would allow a public officer to hold multiple positions if (1) the law allows the concurrent appointment of the said official; and (2) the primary functions of either position allows such concurrent appointment. Issue: WON the appointments violates the prohibition against multiple offices in Section 13, Article VII and Section 7, par. 2, Article IX-B of the 1987 Constitution? Held: YES. In Quimson v. Ozaeta, SC ruled that, “there is no legal objection to a government official occupying 2 gov’t offices and performing the functions of both as long as there is no incompatibility.” The crucial test in determining whether incompatibility exists between two offices was laid out in People v. Green - whether one office is subordinate to the other, in the sense that one office has the right to interfere with the other. Incompatibility between two offices, is an inconsistency in the functions of the two. The offices must be subordinate, one over the other, and they must, per se, have the right to interfere, one with the other, before they are incompatible at common law. In this case, an incompatibility exists between the positions of the PCGG Chairman and the CPLC. The duties of the CPLC include giving independent and impartial legal advice on the actions of the heads of various executive departments and agencies and to review investigations involving heads of executive departments and agencies, as well as other Presidential appointees. The PCGG is, without question, an agency under the Executive Department. Thus, the actions of the PCGG Chairman are subject to the review of the CPLC. As CPLC, respondent Elma will be required to give his legal opinion on his own actions as PCGG Chairman and review any investigation conducted by the Presidential Anti-Graft Commission, which may involve himself as PCGG Chairman. In such cases, questions on his impartiality will inevitably be raised. This is the situation that the law seeks to avoid in imposing the prohibition against holding incompatible offices. While Section 7, Article IX-B of the 1987 Constitution applies in general to all elective and appointive officials, Section 13, Article VII, thereof applies in particular to Cabinet secretaries, undersecretaries and assistant secretaries. The persons cited in Article VII are the “Members of the Cabinet, their deputies and assistants.” These terms must be given their common and general acceptation as referring to the heads of the executive departments, their undersecretaries and assistant secretaries. Public officials given the rank equivalent to a Secretary, Undersecretary, or Assistant Secretary are not covered by the prohibition, nor is the Solicitor General affected thereby. Thus, the strict prohibition under Sec13, Article VII is not applicable to the PCGG Chairman nor to the CPLC, as neither of them is a secretary, undersecretary, nor an assistant secretary, even if the former may have the same rank as the latter positions. In Civil Liberties Union v. Executive Secretary, the Court stressed that the language of Section 13, Article VII is a definite and unequivocal negation of the privilege of holding multiple offices or employment. The Court cautiously allowed only two exceptions to the rule against multiple offices: (1) those

TRUTH. HONOR. EXCELLENCE.

41

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

provided for under the Constitution, such as Section 3, Article VII, authorizing the Vice-President to become a member of the Cabinet; or (2) posts occupied by the Executive officials specified in Section 13, Article VII without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of said officials’ office. The Court further qualified that additional duties must not only be closely related to, but must be required by the official’s primary functions. Moreover, the additional post must be exercised in an ex-officio capacity, which “denotes an act done in an official character, or as a consequence of office, and without any other appointment or authority than that conferred by the office.” Thus, it will not suffice that no additional compensation shall be received by virtue of the second appointment, it is mandatory that the second post is required by the primary functions of the first appointment and is exercised in an ex-officio capacity. Doctrine/Notes: List of officials under Article VII Section 13 is exclusive. Section 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards. The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproved by the Commission on Appointments or until the next adjournment of the Congress.

FR. JOAQUIN BERNAS, S.J.

Eventually, during the term of President Fidel V. Ramos, the CCP Board included the Endriga group. President Estrada then appointed 7 new trustees (the Rufino group) to the CCP Board to replace the Endriga group. The Rufino group took their respective oaths of office and assumed their duties in early January 1999. Endriga group filed a petition for quo warranto questioning Estrada’s appointment. They alleged that under Section 6(b) of PD 15, vacancies in the CCP Board “shall be filled by election by a vote of a majority of the trustees held at the next regular meeting.” They claimed that it is only when the CCP Board is entirely vacant may the President fill such vacancies, acting in consultation with the ranking officers of the CCP. They refused to accept that the CCP was under the supervision and control of the President, citing Sec3 of PD 15, which states that the CCP “shall enjoy autonomy of policy and operation.” The Rufino group asserted that the law could only delegate to the CCP Board the power to appoint officers lower in rank than the trustees of the Board. The law may not validly confer on the CCP trustees the authority to appoint their fellow trustees, for the latter are of equal rank and not of lower rank. Issue: WON the president may appoint members of the CCP board? Held: YES. The power to appoint is the prerogative of the President, except in those instances when the Constitution provides otherwise. Under Section 16, Article VII of the 1987 Constitution, the President appoints three groups of officers. The first group refers to the heads of the Executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in the President by the Constitution. The second group refers to those whom the President may be authorized by law to appoint. The third group refers to all other officers of the Government whose appointments are not otherwise provided by law. Under the same Section 16, there is a fourth group of lower-ranked officers whose appointments Congress may by law vest in the heads of departments, agencies, commissions, or boards.

Doctrine Q. May the Board of the Cultural Center of the Philippines be authorized to fill a vacancy in the Board. A. No. Section 16 says: “The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards.” It is the chairman who may be given authority; but even he can appoint only officers lower in rank, not officers equal in rank with the appointing authority. Rufino v Endriga, G.R. No. 139554, July 21, 2006.

The President appoints the first group of officers with the consent of the Commission on Appointments. The President appoints the second and third groups of officers without the consent of the Commission on Appointments. The President appoints the third group of officers if the law is silent on who is the appointing power, or if the law authorizing the head of a department, agency, commission, or board to appoint is declared unconstitutional. Thus, if Section 6(b) and (c) of PD 15 is found unconstitutional, the President shall appoint the trustees of the CCP Board because the trustees fall under the third group of officers.

RUFINO V ENDRIGA

The framers of the 1987 Constitution clearly intended that Congress could by law vest the appointment of lower-ranked officers in the heads of departments, agencies, commissions, or boards. The clear intent is that inferior or lower in rank officers are the subordinates of the heads of departments, agencies, commissions, or boards who are vested by law with the power to appoint. The conclusion is that the officers whom the heads of departments, agencies, commissions, or boards may appoint must be of lower rank than those vested by law with the power to appoint.

PD 15 created the Cultural Center of the Philippines (CCP) for the primary purpose of propagating arts and culture in the Philippines. PD 15 created a Board of Trustees (“Board”) to govern the CCP. After EDSA1, President Aquino asked for the courtesy resignations of the then incumbent CCP trustees and appointed new trustees to the Board.

JEN LAYGO 4D 2007

TRUTH. HONOR. EXCELLENCE.

42

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

Congress has the discretion to grant to, or withhold from, the heads of agencies, commissions, or boards the power to appoint lower-ranked officers. If it so grants, Congress may impose certain conditions for the exercise of such legislative delegation, like requiring the recommendation of subordinate officers or the concurrence of the other members of the commission or board. This is in contrast to the President’s power to appoint which is a self-executing power vested by the Constitution itself and thus not subject to legislative limitations or conditions. The power to appoint conferred directly by the Constitution on the Supreme Court en banc and on the Constitutional Commissions is also self-executing and not subject to legislative limitations or conditions. Thus, the Chairman of the CCP Board is the “head” of the CCP who may be vested by law, under Section 16, Article VII of the 1987 Constitution, with the power to appoint lower-ranked officers of the CCP. The CCP, being governed by a board, is not an agency but a board for purposes of Section 16, Article VII of the 1987 Constitution. Section 6(b) and (c) of PD 15 is thus irreconcilably inconsistent with Section 16, Article VII of the 1987 Constitution. Section 6(b) and (c) of PD 15 empowers the remaining trustees of the CCP Board to fill vacancies in the CCP Board, allowing them to elect their fellow trustees. On the other hand, Section 16, Article VII of the 1987 Constitution allows heads of departments, agencies, commissions, or boards to appoint only “officers lower in rank” than such “heads of departments, agencies, commissions, or boards.” This excludes a situation where the appointing officer appoints an officer equal in rank as him. Thus, insofar as it authorizes the trustees of the CCP Board to elect their co-trustees, Section 6(b) and (c) of PD 15 is unconstitutional because it violates Section 16, Article VII of the 1987 Constitution. The CCP is part of the Executive branch. No law can cut off the President’s control over the CCP in the guise of insulating the CCP from the President’s influence. By stating that the “President shall have control of all the executive offices,” the 1987 Constitution empowers the President not only to influence but even to control all offices in the Executive branch, including the CCP. Control is far greater than, and subsumes, influence. Doctrine/Notes: It is the head of the board, not the board itself, who should appoint officers lower in rank. Section 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed. Doctrine Q. Is the resolution of the Secretary of Justice directing the prosecutor to withdraw an information in a criminal case reviewable by the Court of Appeals under Rule 43 of the 1997 Rules of Court? A. No. The DOJ’s act is an exercise of the power of control. Appeal should first be made to the Office of the President in order to exhaust administrative remedies. Decision of the Office of the President may then be appealed. Orosa v. Roa, GR 14047, July 14, 2006.

FR. JOAQUIN BERNAS, S.J.

reorganization measures under a broad authority of law. Anak Mindanao v. Executive Sec, G.R. No. 166052 , August 29, 2007. Executive Order No. 102 reorganizing the health sector is challenged on the ground that it cannot be done by th President but should be done by the legislture. This Court has already ruled in a number of cases that the President may, by executive or administrative order, direct the reorganization of government entities under the Executive Department. This is also sanctioned under the Constitution, as well as other statutes.Section 17, Article VII of the 1987 Constitution, clearly states: “[T]he president shall have control of all executive departments, bureaus and offices.” Section 31, Book III, Chapter 10 of Executive Order No. 292, also known as the Administrative Code of 1987. G.R. No. 167324, July 17, 2007. Tondo Medical Center Employees v. CA. G.R. No. 167324, July 17, 2007. The President has the authority to carry out a reorganization of the Department of Health under the Constitution and statutory laws. This authority is an adjunct of his power of control under Article VII, Sections 1 and 17 of the 1987 Constitution, viz.: In Canonizado v. Aguirre, we held that reorganization “involves the reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions.” It alters the existing structure of government offices or units therein, including the lines of control, authority and responsibility between them. While the power to abolish an office is generally lodged with the legislature, the authority of the President to reorganize the executive branch, which may include such abolition, is permissible under our present laws. Malaria Employees v. Executive Secretary, G.R. No. 160093, July 31, 2007. OROSA V. ROA Orosa, a dentist by profession, charged Roa, also a dentist, with the crime of libel. The complaint stemmed from an article entitled “Truth vs. Rumors: Questions against Dr. Orosa” written by Orosa and published in the March-April 1996 issue of the Dental Trading Post, a bi-monthly publication of the Dental Exchange Co., Inc. In gist, the article delved into the possibility of a father, who happened to be an examiner in a licensure examination for dentistry where his sons were examinees, manipulating the examinations or the results thereof to enable his children to top the same. Petitioner alleged that the article in question is defamatory as it besmirched his honor and reputation as a dentist and as the topnotcher in the dental board examinations held in May 1994. Respondent denied the accusation, claiming that the article constitutes a “fair and accurate report on a matter of both public and social concern.” He averred that the article in question was not written with malice but with a sincere desire to contribute to the improvement of the integrity of professional examinations. After preliminary investigation, Pasig City Prosecutor dismissed the petitioner's complaint. Orosa appealed to the DOJ. Acting on the appeal, Chief State Prosecutor Jovencito Zuño issued a Resolution setting aside the findings of the City Prosecutor and directing the latter to file an Information for libel against respondent. Accordingly, in the RTC of Pasig City, an Information for libel was filed against respondent.

The Constitution’s express grant of the power of control to the President justifies an executive action to carry out

JEN LAYGO 4D 2007

TRUTH. HONOR. EXCELLENCE.

43

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

FR. JOAQUIN BERNAS, S.J.

Respondent thus appealed to the Secretary of Justice. Then Justice Secretary Serafin Cuevas reversed the Zuño Resolution and directed the City Prosecutor of Pasig to withdraw the Information earlier filed with the RTC. In compliance therewith, a “Motion to Withdraw Information” was accordingly filed in court by the Pasig City Prosecution Office.

is that if an appeal or remedy obtains or is available within the administrative machinery, this should be resorted to before resort can be made to the courts. Immediate recourse to the court would be premature and precipitate subject to defined exception, a case is susceptible of dismissal for lack of cause of action should a party fail to exhaust administrative remedies.

Petitioner seasonably moved for a reconsideration but his motion was denied by the Secretary of Justice in his Resolution of May 12, 1999. Petitioner then went to the CA on a petition for review under Rule 43 of the Rules of Civil Procedure. However, the CA dismissed the petition on the ground that the Pasig City Prosecution Office and the DOJ are not among those quasijudicial agencies included in Section 1 of Rule 43 whose final orders are subject to review by the CA.

Notably, Section 1 of Rule 43 includes the Office of the President in the agencies named therein, thereby accentuating the fact that appeals from rulings of department heads must first be taken to and resolved by that office before any appellate recourse may be resorted to.

Section 1 of Rule 43 provides that: Section 1. Scope.― This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals, and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions. Among these agencies are the Civil Service Commission, Central Board of Assessment Appeals, Securities and Exchange Commission, Office of the President, Land Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board, National Telecommunications Commission, Department of Agrarian Reform under Republic Act No. 6657, Government Service and Insurance System, Employees' Compensation Commission, Agricultural Inventions Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments, Construction Industry Arbitration Commission, and voluntary arbitrators authorized by law.

Issues/Held: 1. W/N PRELIMINARY INVESTIGATION IS QUASI-JUDICIAL IN NATURE. No. The prosecutor in a preliminary investigation does not determine the guilt or innocence of the accused. He does not exercise adjudication nor rule-making functions. Preliminary investigation is merely inquisitorial, and is often the only means of discovering the persons who may be reasonably charged with a crime and to enable the prosecutor to prepare his complaint or information. It is not a trial of the case on the merits and has no purpose except that of determining whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof. While the prosecutor makes that determination, he cannot be said to be acting as a quasi-court, for it is the courts, ultimately that pass judgment on the accused, not the fiscal prosecutor. 2. W/N THE DECISION OF THE CITY PROSECUTOR AND THE SECRETARY OF JUSTICE IS SUBJECT TO REVIEW OF THE CA. No. The exclusion of the DOJ from Rule 43 is deliberate being in consonance with the constitutional power of control lodged in the President over executive departments, bureaus and offices. This power of control, which even Congress cannot limit, let alone withdraw, means the power of the Chief Executive to review, alter, modify, nullify, or set aside what a subordinate had done in the performance of their duties and to substitute the judgment of the former for that of the latter. Being thus under the control of the President, the Secretary of Justice is subject to review of the former. In fine, recourse from the decision of the Secretary of Justice should be to the President, instead of the CA, under the established principle of exhaustion of administrative remedies. The thrust of the rule on exhaustion of administrative remedies

JEN LAYGO 4D 2007

ANAK MINDANAO V. EXECUTIVE SEC Petitioners Anak Mindanao Party-List Group (AMIN) and Mamalo Descendants Organization, Inc. (MDOI) assail the constitutionality of Executive Order (E.O.) Nos. 364 and 379. EXECUTIVE ORDER NO. 364 TRANSFORMING THE DAR INTO THE DEPARTMENT OF LAND REFORM SECTION 1. The Department of Agrarian Reform is hereby transformed into the Department of Land Reform. It shall be responsible for all land reform in the country, including agrarian reform, urban land reform, and ancestral domain reform. SECTION 2. The PCUP is hereby placed under the supervision and control of the Department of Land Reform. The Chairman of the PCUP shall be ex-officio Undersecretary of the Department of Land Reform for Urban Land Reform. EXECUTIVE ORDER NO. 379 AMENDING EO 364 ENTITLED TRANSFORMING THE DEPARTMENT OF AGRARIAN REFORM INTO THE DEPARTMENT OF LAND REFORM Section 1. Amending Section 3 of Executive Order No. 364. Section 3 of Executive Order No. 364, dated September 27, 2004 shall now read as follows: “Section 3. The National Commission on Indigenous Peoples (NCIP) shall be an attached agency of the Department of Land Reform.”

Issue: WON placing the Presidential Commission for the Urban Poor (PCUP) under the supervision and control of the DAR, and the National Commission on Indigenous Peoples (NCIP) under the DAR as an attached agency was proper? Held: YES. AMIN contends that since the DAR, PCUP and NCIP were created by statutes, they can only be transformed, merged or attached by statutes, not by mere executive orders. While AMIN concedes that the executive power is vested in the President who, as Chief Executive, holds the power of control of all the executive departments, bureaus, and offices, it posits that this broad power of control including the power to reorganize is qualified and limited, for it cannot be exercised in a manner contrary to law, citing the constitutional duty of the President to ensure that the laws, including those creating the agencies, be faithfully executed. AMIN cites the naming of the PCUP as a presidential commission to be clearly an extension of the President, and the creation of the NCIP as an “independent agency under the Office of the President.” It thus argues that since the legislature had seen fit to create these agencies at separate times and with distinct mandates, the President should respect that legislative disposition. In fine, AMIN contends that any reorganization of these administrative agencies should be the subject of a statute. AMIN’s position fails to impress.

TRUTH. HONOR. EXCELLENCE.

44

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

The Constitution confers, by express provision, the power of control over executive departments, bureaus and offices in the President alone. And it lays down a limitation on the legislative power. The Constitution’s express grant of the power of control in the President justifies an executive action to carry out reorganization measures under a broad authority of law. In enacting a statute, the legislature is presumed to have deliberated with full knowledge of all existing laws and jurisprudence on the subject. It is thus reasonable to conclude that in passing a statute which places an agency under the Office of the President, it was in accordance with existing laws and jurisprudence on the President’s power to reorganize. In establishing an executive department, bureau or office, the legislature necessarily ordains an executive agency’s position in the scheme of administrative structure. Such determination is primary, but subject to the President’s continuing authority to reorganize the administrative structure. As far as bureaus, agencies or offices in the executive department are concerned, the power of control may justify the President to deactivate the functions of a particular office. Or a law may expressly grant the President the broad authority to carry out reorganization measures. The Administrative Code of 1987 is one such law: SEC. 30. Functions of Agencies under the Office of the President.– Agencies under the Office of the President shall continue to operate and function in accordance with their respective charters or laws creating them, except as otherwise provided in this Code or by law. SEC. 31. Continuing Authority of the President to Reorganize his Office.– The President, subject to the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have continuing authority to reorganize the administrative structure of the Office of the President. For this purpose, he may take any of the following actions: (1) Restructure the internal organization of the Office of the President Proper, including the immediate Offices, the Presidential Special Assistants/Advisers System and the Common Staff Support System, by abolishing, consolidating, or merging units thereof or transferring functions from one unit to another; (2) Transfer any function under the Office of the President to any other Department or Agency as well as transfer functions to the Office of the President from other Departments and Agencies; and (3) Transfer any agency under the Office of the President to any other department or agency as well as transfer agencies to the Office of the President from other departments or agencies.

In carrying out the laws into practical operation, the President is best equipped to assess whether an executive agency ought to continue operating in accordance with its charter or the law creating it. This is not to say that the legislature is incapable of making a similar assessment and appropriate action within its plenary power. The Administrative Code of 1987 merely underscores the need to provide the President with suitable solutions to situations on hand to meet the exigencies of the service that may call for the exercise of the power of control. As thus provided by law, the President may transfer any agency under the Office of the President to any other department or agency, subject to the policy in the Executive Office and in order to achieve simplicity, economy and efficiency. Gauged against these guidelines, the challenged executive orders may not be said to have been issued with grave abuse of discretion or in violation of the rule of law.

FR. JOAQUIN BERNAS, S.J.

MALARIA EMPLOYEES V. EXECUTIVE SECRETARY In question is the validity of Executive Order (E.O.) No. 102, the law Redirecting the Functions and Operations of the Department of Health. Then President Joseph E. Estrada issued E.O. No. 102 pursuant to the Administrative Code of 1987, and the General Appropriations Act (GAA) of 1998. E.O. No. 102 provided for structural changes and redirected the functions and operations of the Department of Health. Pursuant to such reorganization, certain employees were affected. Petitioner Malaria Employees and Workers Association of the Philippines, Inc. (MEWAP) is a union of affected employees in the Malaria Control Service of the Department of Health. MEWAP filed a complaint, seeks to nullify Department Memorandum No. 157, the NOSCA and the Placement List of Department of Health Personnel and other issuances implementing E.O. No. 102. Issue: Whether Executive Order No. 102 is null and void. Held: NO. The President has the authority to carry out a reorganization of the Department of Health under the Constitution and statutory laws. This authority is an adjunct of his power of control under Article VII, Sections 1 and 17 of the 1987 Constitution. “The general rule has always been that the power to abolish a public office is lodged with the legislature. This proceeds from the legal precept that the power to create includes the power to destroy. A public office is either created by the Constitution, by statute, or by authority of law. Thus, except where the office was created by the Constitution itself, it may be abolished by the same legislature that brought it into existence. xxx The exception, however, is that as far as bureaus, agencies or offices in the executive department are concerned, the President’s power of control may justify him to inactivate the functions of a particular office, or certain laws may grant him the broad authority to carry out reorganization measures.” The President’s power to reorganize the executive branch is also an exercise of his residual powers under the Administrative Code, which grants the President broad organization powers to implement reorganization measures. The residual powers granted to the President under Section 20, Title I, Book III are too broad to be construed as having a sole application to the Office of the President. As correctly stated by respondents, there is nothing in E.O. No. 292 which provides that the continuing authority should apply only to the Office of the President. If such was the intent of the law, the same should have been expressly stated. To adopt the argument of petitioners would result to two conflicting provisions in one statute. It is a basic canon of statutory construction that in interpreting a statute, care should be taken that every part thereof be given effect, on the theory that it was enacted as an integrated measure and not as a hodge-podge of conflicting provisions. The rule is that a construction that would render a provision inoperative should be avoided; instead, apparently inconsistent provisions should be reconciled whenever possible as parts of a coordinated and harmonious whole. Be that as it may, the President must exercise good faith in carrying out the reorganization of any branch or agency of the executive department. Reorganization is effected in good faith if

JEN LAYGO 4D 2007

TRUTH. HONOR. EXCELLENCE.

45

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

it is for the purpose of economy or to make bureaucracy more efficient. R.A. No. 6656 provides for the circumstances which may be considered as evidence of bad faith in the removal of civil service employees made as a result of reorganization, to wit: (a) where there is a significant increase in the number of positions in the new staffing pattern of the department or agency concerned; (b) where an office is abolished and another performing substantially the same functions is created; (c) where incumbents are replaced by those less qualified in terms of status of appointment, performance and merit; (d) where there is a classification of offices in the department or agency concerned and the reclassified offices perform substantially the same functions as the original offices; and (e) where the removal violates the order of separation. We agree with the ruling of the Court of Appeals that the President did not commit bad faith in the questioned reorganization. Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ of habeas corpus. The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for rebellion or offenses inherent in, or directly connected with, invasion. During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

detained shall be judicially charged within three days, otherwise he shall be released. Doctrine Q. When the President declares a state of emergency and calls out the Armed Forces, does such an act give to the President additional powers? A. The declaration of a state of emergency is merely a description of a situation which authorizes her to call out the Armed Forces to help the police maintain law and order. It gives no new power to her, nor to the military, nor to the police. Certainly it does not authorize warrantless arrests or control of media. David v. Ermita, G.R. No. 171409, May 3, 2006. Q. May the President as Commander in Chief prevent an Army General from appearing in a legislative investigation and, if disobeyed, is the general subject to court martial? A. The General is subject to court martial and must justify his disobedience to the President as Commander in Chief. However, Congress may challenge the President’s order before the Supreme Court. Gudani v. Senga, G.R. No. 170165, August 15, 2006.

DAVID V. ERMITA On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power I, President Arroyo issued PP 1017 declaring a state of national emergency, thus: NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of the Philippine Constitution which states that: “The President. . . whenever it becomes necessary, . . . may call out (the) armed forces to prevent or suppress. . .rebellion. . .,” and in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction; and as provided in Section 17, Article 12 of the Constitution do hereby declare a State of National Emergency.

She then issued General orders 5 implementing PP 1017, stating: NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under the Constitution as President of the Republic of the Philippines, and Commander-in-Chief of the Republic of the Philippines, and pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby call upon the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), to prevent and suppress acts of terrorism and lawless violence in the country; I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and men of the AFP and PNP, to immediately carry out the necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence.”

Exactly one week after the declaration of a state of national emergency and after all these petitions had been filed, the President lifted PP1017 via Proclamation 1021 which reads: “NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines, by virtue of the powers vested in me by law, hereby declare that the state of national emergency has ceased to exist.”

TRUTH. HONOR. EXCELLENCE.

46

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

Issues/Held: (1) WHETHER THE SUPREME COURT CAN REVIEW THE FACTUAL BASES OF PP 1017? YES. While the Court considered the President’s “calling-out” power as a discretionary power solely vested in his wisdom, it stressed that “this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion.” As to how the Court may inquire into the President’s exercise of power, Lansang adopted the test that “judicial inquiry can go no further than to satisfy the Court not that the President’s decision is correct,” but that “the President did not act arbitrarily.” Thus, the standard laid down is not correctness, but arbitrariness. In Integrated Bar of the Philippines, this Court further ruled that “it is incumbent upon the petitioner to show that the President’s decision is totally bereft of factual basis.” This Petitioners failed to show. A reading of the Solicitor General’s Consolidated Comment and Memorandum shows a detailed narration of the events leading to the issuance of PP 1017, with supporting reports forming part of the records. Mentioned are the escape of the Magdalo Group, their audacious threat of the Magdalo D-Day, the defections in the military, particularly in the Philippine Marines, and the reproving statements from the communist leaders. There was also the Minutes of the Intelligence Report and Security Group of the Philippine Army showing the growing alliance between the NPA and the military. Petitioners presented nothing to refute such events. Thus, absent any contrary allegations, the Court is convinced that the President was justified in issuing PP 1017 calling for military aid. (2) WON PP1017 AND GO5 ARE UNCONSTITUTIONAL? The first provision pertains to the President’s calling-out power. Section 18, Article VII of the Constitution grants the President, as Commander-in-Chief, a “sequence” of graduated powers. From the most to the least benign, these are: the calling-out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare Martial Law. The only criterion for the exercise of the calling-out power is that “whenever it becomes necessary,” the President may call the armed forces “to prevent or suppress lawless violence, invasion or rebellion.” Under the calling-out power, the President may summon the armed forces to aid him in suppressing lawless violence, invasion and rebellion. This involves ordinary police action. But every act that goes beyond the President’s callingout power is considered illegal or ultra vires. However, as to the provision in PP1017 which states in part: “to enforce obedience to all the laws and decrees x x x promulgated by me personally or upon my direction,” this is unconstitutional. The President is granted only Ordinance Powers under the Administrative Code of 1987, where she may issue only executive orders, administrative orders, proclamations, memorandum orders, memorandum circulars and general or special orders. She cannot issue decrees similar to those issued by Former President Marcos under PP 1081. This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the authority to promulgate “decrees.” Legislative power is peculiarly within the province of the Legislature. Section 1, Article VI categorically states that “the legislative power shall be vested in the Congress of the

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

Philippines which shall consist of a Senate and a House of Representatives.” To be sure, neither Martial Law nor a state of rebellion nor a state of emergency can justify President Arroyo’s exercise of legislative power by issuing decrees. GUDANI V. SENGA Petitioners are high-ranking officers of the AFP. They were invited by Sen. Biazon to appear at a public hearing before the Senate Committee, concerning the 2004 elections and the Hello Garci Tape. The Chief of Staff of the AFP then approved their requests for travel authority. Then on the evening of 27 September 2005, at around 10:10 p.m., a message was transmitted to the PMA Superintendent from the office of Gen. Senga, stating that President Arroyo has instructed that no AFP personnel shall appear before the congressional hearing without her approval. The following day, Gen. Senga sent another letter to Sen. Biazon, this time informing the senator that “no approval has been granted by the President to any AFP officer to appear” before the hearing scheduled on that day. Nonetheless, both Gen. Gudani and Col. Balutan were present as the hearing started, and they both testified as to the conduct of the 2004 elections. Both officers were subjected to courts martial for defiance of the orders. Issue: WON the President prevent a member of the armed forces from testifying before a legislative inquiry? Held: YES, the Court in Senate v. Ermita declared both Section 2(b) and Section 3 void. But the impression may have been left by Senate that it settled as doctrine, that the President is prohibited from requiring military personnel from attending congressional hearings without having first secured prior presidential consent. That impression is wrong. We hold that the President has constitutional authority to do so, by virtue of her power as commander-in-chief, and that as a consequence a military officer who defies such injunction is liable under military justice. At the same time, we also hold that any chamber of Congress which seeks the appearance before it of a military officer against the consent of the President has adequate remedies under law to compel such attendance. Any military official whom Congress summons to testify before it may be compelled to do so by the President. If the President is not so inclined, the President may be commanded by judicial order to compel the attendance of the military officer. Final judicial orders have the force of the law of the land which the President has the duty to faithfully execute. In Senate, the Court recognized the considerable limitations on executive privilege, and affirmed that the privilege must be formally invoked on specified grounds. However, the ability of the President to prevent military officers from testifying before Congress does not turn on executive privilege, but on the Chief Executive’s power as commander-in-chief to control the actions and speech of members of the armed forces. The President’s prerogatives as commander-in-chief are not hampered by the same limitations as in executive privilege. Doctrine/Notes: Senate v. Ermita ruling was decided based on executive privilege, but does not apply to military personnel

TRUTH. HONOR. EXCELLENCE.

47

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

(governed by commander-in-chief provision), who must still seek approval from president. Section 21. No treaty or international agreement shall be valid and effective unless concurred in by at least twothirds of all the Members of the Senate. Doctrine Q. President Estrada signed the Treaty on the Internatinal Criminal Court before he was ousted. But he did not submit it to the Senate for concurrence. May the Executive Department be compelled by mandamus to submit it to the Senate? A. No. Entering into a treaty is a prerogative solely of the President. Pimentel v Ermita, G.R. No. 158088, July 6, 2005 PIMENTEL V. ERMITA The Rome Statute established the International Criminal Court. Philippines signed the Statute on December 28, 2000 through Charge d’ Affairs Manalo of the Philippine Mission to the UN. Its provisions, however, require that it be subject to ratification, acceptance or approval of the signatory states. Petitioners filed the instant petition to compel the respondents Executive Secretary and Secretary of Foreign Affairs to transmit the signed text of the treaty to the Senate of the Philippines for ratification. It is the theory of the petitioners that ratification of a treaty, under both domestic law and international law, is a function of the Senate. Moreover, petitioners submit that the Philippines has a ministerial duty to ratify the Rome Statute under treaty law and customary international law, invoking the Vienna Convention on the Law of Treaties enjoining the states to refrain from acts which would defeat the object and purpose of a treaty when they have signed the treaty prior to ratification unless they have made their intention clear not to become parties thereto. Issue: Whether the Executive Secretary and the Department of Foreign Affairs have a ministerial duty to transmit to the Senate the copy of the Rome Statute signed by a member of the Philippine Mission to the United Nations even without the signature of the President? Held: NO. While the President has the sole authority to negotiate and enter into treaties, the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987 Constitution provides that “no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.” In filing this petition, the petitioners interpret Section 21, Article VII of the 1987 Constitution to mean that the power to ratify treaties belongs to the Senate. We disagree. Petitioners’ arguments equate the signing of the treaty by the Philippine representative with ratification. The signature is primarily intended as a means of authenticating the instrument and as a symbol of the good faith of the parties. It is usually performed by the state’s authorized representative in the diplomatic mission. Ratification, on the other hand, is the formal act by

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

which a state confirms and accepts the provisions of a treaty concluded by its representative. It is generally held to be an executive act, undertaken by the head of the state or of the government. Under our Constitution, the power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence, to the ratification. Hence, it is within the authority of the President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification, refuse to ratify it.  ARTICLE VIII - JUDICIAL DEPARTMENT Section 5. The Supreme Court shall have the following powers: (1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. (2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in: (a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. (b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto. (c) All cases in which the jurisdiction of any lower court is in issue. (d) All criminal cases in which the penalty imposed is reclusion perpetua or higher. (e) All cases in which only an error or question of law is involved. (3) Assign temporarily judges of lower courts to other stations as public interest may require. Such temporary assignment shall not exceed six months without the consent of the judge concerned. (4) Order a change of venue or place of trial to avoid a miscarriage of justice. (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. (6) Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law. Doctrines Q. Rule 67 says that entry into expropriated property may be made even before full payment provided a deposit is made of an amount fixed by the court. R.A. 8974 requires full

TRUTH. HONOR. EXCELLENCE.

48

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

payment before entry in public works projects. May Congress amend Rules of Court. A. Rule 67 involves both procedural and substantive matter. Substantive rules are always subject to legislation. Republic v. Gingoyon, G.R. 166429, February 1, 2006. NOTE: Review by the Court of Appeals of the trial court’s judgment imposing the death penalty is now automatic and mandatory under Rule 122, Sections 3(d) and 10 of the Rules of Court, as amended by A.M. No. 00-5-03-SC, People v. Lagua, G.R. No. 170565, January 31, 2006. NOTE: The challenge of Francisco to the Flag Scheme was dismissed (1) for want of standing and (2) for raising a question of fact before the Supreme Court. Francisco v. Bayani Fernando, G.R. No. 166501, November 16, 2006. A taxpayer is 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 there is a wastage of public funds through the enforcement of an invalid or unconstitutional law. Significantly, a taxpayer need not be a party to the contract to challenge its validity. Abaya et al v. Ebdane et al, GR 167919, February 14, 2007. Section 5(5), Article VIII of the Constitution gives this Court the power to "[p]romulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts." It is within the inherent power of the Court to suspend its own rules in particular cases in order to do justice. Lim et al v. CA, G.R. No. 149748, November 16, 2006. The rule for the review of decisions of lower courts imposing death or reclusion perpetua or life imprisonment are not the same. In case the sentence is death, there is automatic review by the Court of Appeals and ultimately by the Supreme Court. This is mandatory and neither the accused nor the courts may waive the right of appeal. In the case of the sentence of reclusion perpetua or life imprisonment, however, although the Supreme Court has jurisdiction to review them, the review is not mandatory. Therefore review in these later cases may be waived and appeal may be withdrawn. People v. Rocha and Ramos, G.R. No. 173797, August 31, 2007. REPUBLIC V. GINGOYON In the Resolution dated 21 January 2004 in Agan v. PIATCO SC held that PIATCO, as builder of the NAIA 3 facilities, must first be justly compensated in accordance with law for the Government to take over the facilities. The Government was required to first pay PIATCO the amount of 3.02 Million Pesos before it may acquire physical possession over the facilities. This directive enjoining payment is in accordance with Republic Act No. 8974, and under the mechanism established by the law the amount to be initially paid is that which is provisionally determined as just compensation. The provisional character of this payment means that it is not yet final, yet sufficient under law to entitle the Gov’t to the writ of possession over the expropriated property. However, the Government contends in this MR, that Rep. Act No. 8974 could not repeal Rule 67 of the Rules of Court, since the deposit of the assessed value is a procedural matter. [It is

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

proposed that Congress cannot pass a law contrary to the rules of court as established by the SC] Issue: WON Congress can amend rules of procedure (rules of court) by passing a law, even when substantive rights are affected? Held: YES. This point was already addressed in the Decision, which noted that the determination of the appropriate standards for just compensation is a substantive matter well within the province of the legislature to fix. As held in Fabian v. Desierto, if the rule takes away a vested right, it is not procedural, and so the converse certainly holds that if the rule or provision creates a right, it should be properly appreciated as substantive in nature. Indubitably, a matter is substantive when it involves the creation of rights to be enjoyed by the owner of property to be expropriated. The right of the owner to receive just compensation prior to acquisition of possession by the State of the property is a proprietary right, appropriately classified as a substantive matter and, thus, within the sole province of the legislature to legislate on. It is possible for a substantive matter to be nonetheless embodied in a rule of procedure, and to a certain extent, Rule 67 does contain matters of substance. Yet the absorption of the substantive point into a procedural rule does not prevent the substantive right from being superseded or amended by statute, for the creation of property rights is a matter for the legislature to enact on, and not for the courts to decide upon. Indeed, if the position of the Government is sustained, it could very well lead to the absurd situation wherein the judicial branch of government may shield laws with the veneer of irrepealability simply by absorbing the provisions of law into the rules of procedure. When the 1987 Constitution restored to the judicial branch of government the sole prerogative to promulgate rules concerning pleading, practice and procedure, it should be understood that such rules necessarily pertain to points of procedure, and not points of substantive law. FRANCISCO V. BAYANI FERNANDO Petitioner prays for the Prohibition writ to enjoin respondents Bayani F. Fernando, Chairman of the MMDA and the MMDA from further implementing its “wet flag scheme” (“Flag Scheme”). Petitioner contends that the Flag Scheme: (1) has no legal basis because the MMDA’s governing body, the Metro Manila Council, did not authorize it; (2) violates the Due Process Clause because it is a summary punishment for jaywalking; (3) disregards the Constitutional protection against cruel, degrading, and inhuman punishment; and (4) violates “pedestrian rights” as it exposes pedestrians to various potential hazards. Issue: WON the SC should take cognizance? Held: NO. The petition ultimately calls for a factual determination of whether the Flag Scheme is a reasonable enforcement of anti-jaywalking ordinances and similar enactments. This Court is not a trier of facts. The petition proffers mere surmises and speculations on the potential hazards of the Flag Scheme. This Court cannot determine the reasonableness of the Flag Scheme based on mere surmises and speculations. Petitioner violated the doctrine of hierarchy of courts when he filed this petition directly with us. This Court’s jurisdiction to

TRUTH. HONOR. EXCELLENCE.

49

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

issue writs of certiorari, prohibition, mandamus, quo warranto, and habeas corpus, while concurrent with the Regional Trial Courts and the Court of Appeals, does not give litigants unrestrained freedom of choice of forum from which to seek such relief. We relax this rule only in exceptional and compelling circumstances. This is not the case here.

ABAYA ET AL V. EBDANE ET AL The CPI project is one of the four packages comprising the project for the rehabilitation of the Catanduanes Circumferential Road. The project is between the Japan Bank for International Cooperation (JBIC) and the Government of the Republic of the Philippines. The Exchange of Notes provided that the loans to be extended by the Government of Japan to the Philippines consisted of two loans. Subsequently, the DPWH, as the government agency tasked to implement the project, caused the publication of the “Invitation to Prequalify and to Bid” for the implementation of the CP I project. DPWH, with the approval of then Acting Secretary Soriquez, issued the assailed Resolution recommending the award in favor of private respondent China Road & Bridge Corporation. A Contract of Agreement was entered into by and between the DPWH and private respondent China Road & Bridge Corporation for the implementation of the CP I project. Petitioner Plaridel M. Abaya claims that he filed the instant petition as a taxpayer, former lawmaker, and a Filipino citizen. Petitioner Plaridel C. Garcia likewise claims that he filed the suit as a taxpayer, former military officer, and a Filipino citizen. Issue: WON petitioners have locus standi? Held: YES, as a taxpayer’s suit. Petitioners assert that they have standing or locus standi to file the instant petition. They claim that as taxpayers and concerned citizens, they have the right and duty to question the expenditure of public funds on illegal acts. According to the public respondents, a taxpayer’s locus standi was recognized in the following cases: (a) where a tax measure is assailed as unconstitutional; (b) where there is a question of validity of election laws; (c) where legislators questioned the validity of any official action upon the claim that it infringes on their prerogatives as legislators; (d) where there is a claim of illegal disbursement or wastage of public funds through the enforcement of an invalid or unconstitutional law; (e) where it involves the right of members of the Senate or House of Representatives to question the validity of a presidential veto or condition imposed on an item in an appropriation bill; or (f) where it involves an invalid law, which when enforced will put the petitioner in imminent danger of sustaining some direct injury as a result thereof, or that he has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute complained of. None of the above considerations allegedly obtains in the present case. The prevailing doctrine in taxpayer’s suits is to allow taxpayers to question contracts entered into by the national government or government- owned or controlled corporations allegedly in contravention of law. A taxpayer is 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 there

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

is a wastage of public funds through the enforcement of an invalid or unconstitutional law. Significantly, a taxpayer need not be a party to the contract to challenge its validity. In the present case, the petitioners are suing as taxpayers. They have sufficiently demonstrated that, notwithstanding the fact that the CP I project is primarily financed from loans obtained by the government from the JBIC, nonetheless, taxpayers’ money would be or is being spent on the project considering that the Philippine Government is required to allocate a peso-counterpart therefor. The public respondents themselves admit that appropriations for these foreign-assisted projects in the GAA are composed of the loan proceeds and the peso-counterpart. The counterpart funds, the Solicitor General explains, refer to the component of the project cost to be financed from government-appropriated funds, as part of the government’s commitment in the implementation of the project. Hence, the petitioners correctly asserted their standing since a part of the funds being utilized in the implementation of the CP I project partakes of taxpayers’ money.

LIM ET AL V. CA Petitioners filed a petition for certiorari under Rule 65 with the Court of Appeals, in relation to a labor case. Said petition was dismissed outright in the CA's assailed Resolution, based on the following grounds: (1) The Verification and Certification of Non-Forum Shopping are signed by counsel and not by the petitioner[s] which is in violation of the Supreme Court [r]uling in Escorpizo v. University of Baguio (306 SCRA 497); (2) Petitioner[s'] counsel, in the Verification as to Material Dates, only alleged the date of receipt of the December 11, 2000 NLRC Resolution denying the motion for reconsideration but failed to allege the date of receipt of the June 6, 2000 NLRC Resolution; (3) The IBP Official Receipt Number as well as the date of its issuance to petitioner[s'] counsel are not current, in violation of the SC En Banc Resolution dated September 26, 2000 in Bar Matter No. 287; and (4) The petition does not contain a written explanation on the mode of service as required under Section 11, Rule 13 of the 1997 Rules of Civil Procedure. Petitioners filed their Motion for Reconsideration on May 10, 2001 which was likewise denied for being filed out of time. Private respondents belabor the fact that petitioners filed their petition for certiorari with the CA: a) with its verification and certification of non-forum shopping signed by counsel instead of the parties; b) without a statement of the date of receipt of the June 6, 2000 NLRC Resolution; c) with their counsel's IBP Official Receipt Number being outdated; and d) without a written explanation on the mode of service as required under Section 11, Rule 13 of the 1997 Rules of Civil Procedure. Private respondents point out that petitioners' motion for reconsideration with the CA was filed 27 days after the last day for filing the same. Private respondent M&S also questions petitioners' resort to a petition for certiorari under Rule 65 of the Rules of Court with this Court. It contends that the proper

TRUTH. HONOR. EXCELLENCE.

50

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

remedy with this Court from the resolution of the CA is an appeal by certiorari under Rule 45. Issue: WON THE CASE SHOULD BE GIVEN DUE COURSE? Held: YES. It is within the inherent power of the Court to suspend its own rules in particular cases in order to do justice. In Kathy-O Enterprises v. NLRC, the Court held: When proper, no serious impediment bars the allowance of tardy appeals under the Rules of Court, in recognition of this Court's inherent power to suspend adjective rules. It is a different matter, however, when the period to appeal is provided by statute, as in labor cases. For obvious reasons, this Court cannot ordinarily suspend the statute's operation. x x x Nevertheless, if only to be able to dispense substantial justice, strict observance of the period to appeal may not be exacted. Thus, in Firestone Tire and Rubber Co. of the Philippines v. Lariosa, an appeal in a labor dispute was given due course despite the lapse of 14 days from notice of the decision, due to the fact that the Notice of Decision received by Lariosa's lawyer advised the parties that the appeal could be taken to the NLRC within 10 "working" days — not calendar days — from notice of the decision. For the same reason was the appeal in Chong Guan Trading v. NLRC allowed. While in City Fair Corporation v. NLRC, we ruled that the NLRC did not commit grave abuse of discretion when it entertained an appeal filed 1 day late considering that the "facts and circumstances of the case warrant liberality considering the amount and the issue involved." In the same case, the Court likewise explained that the underlying purpose behind the principle that the perfection of an appeal within the statutory or reglementary period is not only mandatory, but jurisdictional, and failure to do so renders the questioned decision final and executory is to prevent needless delay -- a circumstance which would allow the employer to wear out the efforts and meager resources of the worker to the point that the latter is constrained to settle for less than what is due him. In the case at bar, applying the Rules strictly would result in the pernicious delay sought to be avoided. At stake is the protection of the rights of almost a hundred employees to the satisfaction of a judgment that has become final and executory in a decision rendered by us more than 7 years ago. A scheme to thwart the execution of our final and executory decision is extant in the records. Moreover, barring the instant petition on technical grounds would leave the workers without recourse since the subject real properties were levied due to the insufficiency of judgment debtor CTCI's money and personal properties to satisfy the decision sought to be executed. Petitioners' resort to a petition for certiorari under Rule 65 is proper considering that petitioners are assailing the resolutions of the CA dismissing their petition outright. Ordinarily, the proper recourse of an aggrieved party from a decision of the CA is a petition for review on certiorari under Rule 45 of the Rules of Court. However, if the error alleged is one of jurisdiction, or the act complained of was perpetrated by a court with grave abuse of discretion amounting to lack or excess of jurisdiction, the proper remedy available to the aggrieved party is a petition for certiorari under Rule 65 of the said Rules. Be that as it may, in view of the pendency of this case for more than a decade and the delay in its execution for more than seven (7) years, we shall treat the instant case as an appeal under Rule 45 and resolve the petition on the merits considering that the entire records of the case have been elevated to us.

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

PEOPLE V. ROCHA AND RAMOS Trumpeta, Cenita and herein accused-appellants Rocha and Ramos were found guilty of the crime of Robbery with Homicide, and imposing upon them the penalty of reclusion perpetua. They appealed to this court, which pursuant to the Decision of this Court in People v. Mateo, was transferred to the Court of Appeals. CA affirmed the conviction. Thereafter, Rocha and Ramos, through the Public Attorney’s Office, appealed the Decision of the Court of Appeals to this Court. Rocha, having been detained for more than 17 years, filed a Motion to Withdraw Appeal, stating that he intends to apply for parole. He also manifested that his co-accused on this case, Romeo Trumpeta and Estaquio Cenita, had already withdrawn their appeal. Ramos followed suit and filed his own Manifestation with Motion to Withdraw Appeal. He likewise manifested that he had already served 14 years in prison and that all his other co-accused had already withdrawn their appeal, and applied for executive clemency to avail himself of parole. Issue: WON the Motions to Withdraw Appeal of accusedappellants Rocha and Ramos should be granted. Held: YES. The confusion in the case at bar seems to stem from the effects of the Decision of this Court in People v. Mateo. In Mateo, as quoted by plaintiff-appellee, it was stated that “[w]hile the Fundamental Law requires a mandatory review by the Supreme Court of cases where the penalty imposed is reclusion perpetua, life imprisonment, or death, nowhere, however, has it proscribed an intermediate review.” A closer study of Mateo, however, reveals that the inclusion in the foregoing statement of cases where the penalty imposed is reclusion perpetua and life imprisonment was only for the purpose of including these cases within the ambit of the intermediate review of the Court of Appeals: “[this] Court now deems it wise and compelling to provide in these cases [cases where the penalty imposed is reclusion perpetua, life imprisonment or death] review by the Court of Appeals before the case is elevated to the Supreme Court.” We had not intended to pronounce in Mateo that cases where the penalty imposed is reclusion perpetua or life imprisonment are subject to the mandatory review of this Court. In Mateo, these cases were grouped together with death penalty cases because, prior to Mateo, it was this Court which had jurisdiction to directly review reclusion perpetua, life imprisonment and death penalty cases alike. The mode of review, however, was different. Reclusion perpetua and life imprisonment cases were brought before this Court via a notice of appeal, while death penalty cases were reviewed by this Court on automatic review. Thus, the erstwhile Rule 122, Sections 3 and 10, provided as follows: SEC. 3. How appeal taken.— (c) The appeal to the Supreme Court in cases where the penalty imposed by the Regional Trial Court is reclusion perpetua, or life imprisonment, or where a lesser penalty is imposed but for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense for which the penalty of death, reclusion perpetua, or life imprisonment is imposed, shall be by filing a notice of appeal in accordance with paragraph (a) of this section. SEC. 10. Transmission of records in case of death penalty.— In all cases where the death penalty is imposed by the trial court, the records shall be forwarded to the Supreme Court for automatic review and judgment within five (5) days after the fifteenth

TRUTH. HONOR. EXCELLENCE.

51

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

(15) day following the promulgation of the judgment or notice of denial of a motion for new trial or reconsideration. The transcript shall also be forwarded within ten (10) days after the filing thereof by the stenographic reporter.

After the promulgation of Mateo on 7 June 2004, this Court promptly caused the amendment of the foregoing provisions, but retained the distinction of requiring a notice of appeal for reclusion perpetua and life imprisonment cases and automatically reviewing death penalty cases. Thus, Rule 122, Sections 3 and 10, as amended by A.M. No. 00-5-03-SC (which took effect on 15 October 2004), now provides: SEC. 3. How appeal taken.— (c)The appeal in cases where the penalty imposed by the Regional Trial Court is reclusion perpetua, or life imprisonment, or where a lesser penalty is imposed but for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense for which the penalty of death, reclusion perpetua, or life imprisonment is imposed, shall be by notice of appeal in accordance with paragraph (a) of this Rule. (d) No notice of appeal is necessary in cases where the Regional Trial Court imposed the death penalty. The Court of Appeals automatically review the Judgment provided in section 10 of this Rule. SEC. 10. Transmission of records in case of death penalty.— In all cases where the death penalty is imposed by the trial court, the records shall be forwarded to the Court of Appeals for automatic review and judgment within twenty days but not earlier than fifteen days from the promulgation of the judgment or notice of denial of a motion for new trial or reconsideration. The transcript shall also be forwarded within ten (10) days after the filing thereof by the stenographic reporter.

Neither does the Constitution require a mandatory review by this Court of cases where the penalty imposed is reclusion perpetua or life imprisonment. The constitutional provision quoted in Mateo merely gives this Court jurisdiction over such cases: Up until now, the Supreme Court has assumed the direct appellate review over all criminal cases in which the penalty imposed is death, reclusion perpetua or life imprisonment (or lower but involving offenses committed on the same occasion or arising out of the same occurrence that gave rise to the more serious offense for which the penalty of death, reclusion perpetua, or life imprisonment is imposed). The practice finds justification in the 1987 Constitution, Article VIII, Section 5. In this provision, only paragraphs (1) and (2) speak of jurisdiction over cases. However, this Constitutional provision does not enumerate cases involving mandatory review. Indeed, it would almost be silly to claim that this Court is mandatorily required to review all cases in which the jurisdiction of any lower court is in issue. Instead, the significance of the enumeration of this Court’s jurisdiction in paragraphs (1) and (2) is that while Section 2 of the same Article VIII of the Constitution gives to Congress the power to define, prescribe and apportion the jurisdiction of various courts, it denies to Congress the power to deprive this Court of jurisdiction over cases enumerated in Section 5. Since the case of accused-appellants is not subject to the mandatory review of this Court, the rule that neither the accused nor the courts can waive a mandatory review is not applicable. Consequently, accused-appellants’ separate motions to withdraw appeal may be validly granted.

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

Section 7. (1) No person shall be appointed Member of the Supreme Court or any lower collegiate court unless he is a natural-born citizen of the Philippines. A Member of the Supreme Court must be at least forty years of age, and must have been for fifteen years or more, a judge of a lower court or engaged in the practice of law in the Philippines. (2) The Congress shall prescribe the qualifications of judges of lower courts, but no person may be appointed judge thereof unless he is a citizen of the Philippines and a member of the Philippine Bar. (3) A Member of the Judiciary must be a person of proven competence, integrity, probity, and independence. Doctrine Before Gregory Ong can accept appointment to the Supreme Court he must correct the entry in his birth certificagte saying he is an alien. Kilosbayan v. Ermita, G.R. No. 177721, July 3, 2007. It behooves every prospective appointee to the Judiciary to apprise the appointing authority of every matter bearing on his fitness for judicial office, including such circumstances as may reflect on his integrity and probity. These are qualifications specifically required of appointees to the Judiciary by Sec. 7(3), Article VIII of the Constitution. In this case, Judge Quitain failed to disclose that he had been administratively charged and dismissed from the service for grave misconduct per A.O. No. 183 dated April 10, 1995 by no less than the former President of the Philippines. He insists that on November 26, 2001 or before he filed with the JBC his verified PDS in support of his application for RTC Judge, he had no knowledge of A.O. No. 183; and that he was denied due process. He further argues that since all the criminal cases filed against him were dismissed on August 2, 1995 and July 17, 2000, and considering the fact that he resigned from office, his administrative case had become moot and academic. In re JBC v. Judge Quitain, JBC No. 013, August 22, 2007. KILOSBAYAN V. ERMITA Executive Secretary Ermita announced an appointment in favor of Gregory S. Ong as Associate Justice of the Supreme Court. Petitioners objected, claiming that respondent Ong is a Chinese citizen, and that his own birth certificate indicates his Chinese citizenship. As to his citizenship, respondent Ong traces his ancestral lines to one Maria Santos, who was allegedly a Filipino citizen who married Chan Kin, a Chinese citizen; that they had a son, Juan Santos; that Chan Kin died in China, as a result of which Maria Santos reverted to her Filipino citizenship; that at that time Juan Santos was a minor; that Juan Santos thereby also became a Filipino citizen; that respondent Ong’s mother, Dy Guiok Santos, is the daughter of the spouses Juan Santos and Sy Siok Hian, a Chinese citizen; that, respondent’s mother was a Filipino citizen at birth; that Dy Guiok Santos later married a Chinese citizen, Eugenio Ong Han Seng, thereby becoming a Chinese citizen; that when respondent Ong was 11. his father, Han Seng, was naturalized, and as a result he, his brothers and sisters, and his mother were included in the naturalization.

TRUTH. HONOR. EXCELLENCE.

52

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

Respondent Ong subsequently obtained from the Bureau of Immigration and the DOJ a certification and an identification that he is a natural-born Filipino citizen under Article IV, Sections 1 and 2 of the Constitution, since his mother was a Filipino citizen when he was born. Issue: WON respondent Ong a natural-born Filipino citizen? Held: In his petition to be admitted to the Philippine bar, Ong alleged that he is qualified to be admitted because, he is a Filipino citizen; and that he is a Filipino citizen because his father, Eugenio Ong Han Seng, a Chinese citizen, was naturalized in 1964 when he, respondent Ong, was a minor of 11 years and thus he, too, thereby became a Filipino citizen. His birth certificate states that he was a Chinese citizen at birth and that his mother, Dy Guiok Santos, was a Chinese citizen and his father, Eugenio Ong Han Seng, was also a Chinese citizen. It is clear that from the records, respondent Ong is a naturalized Filipino citizen. The alleged subsequent recognition of his natural-born status by the BOI and the DOJ cannot amend the final decision of the trial court stating that respondent Ong and his mother were naturalized along with his father. No substantial change or correction in an entry in a civil register can be made without a judicial order, and, under the law, a change in citizenship status is a substantial change. Substantial corrections to the nationality or citizenship of persons recorded in the civil registry should, therefore, be effected through a petition filed in court under Rule 108 of the Rules of Court. The issues herein entail factual assertions that need to be threshed out in proper judicial proceedings so as to correct the existing records on his birth and citizenship. Until this is done, respondent Ong cannot accept an appointment to this Court, and may be prevented by injunction from doing so.

IN RE JBC V. JUDGE QUITAIN Judge Jaime Vega Quitain was appointed Presiding Judge of the Davao RTC. The Office of the Court Administrator received confidential information that administrative and criminal charges were filed against Judge Quitain in his capacity as then Assistant Regional Director, National Police Commission (NAPOLCOM), as a result of which he was dismissed from the service per Administrative Order. In the Personal Data Sheet (PDS) submitted to the Judicial and Bar Council (JBC), Judge Quitain declared that there were five criminal cases filed against him before the Sandiganbayan, which were all dismissed. No administrative case was disclosed by Judge Qutain in his PDS. To confirm the veracity of the information, then Deputy Court Administrator requested from the Sandiganbayan certified copies of the Orders dismissing the criminal cases. Letters were also sent to the NAPOLCOM requesting for certified true copies of documents relative to the administrative complaints filed against Judge Quitain, particularly AO183, dismissing him from the service. Likewise, DCA required Judge Quitain to explain the alleged misrepresentation and deception he committed before the JBC. NAPOLCOM furnished the Office of the Court Administrator (OCA) a copy of A.O. No. 183 showing that respondent Judge

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

was indeed dismissed from the service for Grave Misconduct for falsifying or altering the amounts reflected in disbursement vouchers in support of his claim for reimbursement of expenses. Judge Quitain denied having committed any misrepresentation before the JBC. He alleged that during his interview, the members thereof only inquired about the status of the criminal cases filed by the NAPOLCOM before the Sandiganbayan, and not about the administrative case simultaneously filed against him. He also alleged that he never received from the Office of the President an official copy of A.O. No. 183 dismissing him from the service. Respondent explained that during the investigation of his administrative case by the NAPOLCOM Ad Hoc Committee, one of its members suggested to him that if he resigns from the government service, he will no longer be prosecuted; that following such suggestion, he tendered his irrevocable resignation from NAPOLCOM which was immediately accepted by the Secretary of the Department of Interior and Local Governments; that he did not disclose the case in his PDS because he was of the “honest belief” that he had no more pending administrative case by reason of his resignation; that his resignation “amounted to an automatic dismissal” of his administrative case considering that “the issues raised therein became moot and academic”; and that had he known that he would be dismissed from the service, he should not have applied for the position of a judge since he knew he would never be appointed. As borne out by the records, Judge Quitain deliberately did not disclose the fact that he was dismissed from the government service. At the time he filled up and submitted his Personal Data Sheet with the Judicial and Bar Council, he had full knowledge of the subject administrative case, as well as Administrative Order No. 183 dismissing him from the government service. Issue: WON Quitain should be dismissed? Held: YES. It behooves every prospective appointee to the Judiciary to apprise the appointing authority of every matter bearing on his fitness for judicial office, including such circumstances as may reflect on his integrity and probity. These are qualifications specifically required of appointees to the Judiciary by Sec. 7(3), Article VIII of the Constitution. In this case, Judge Quitain failed to disclose that he was administratively charged and dismissed from the service for grave misconduct per A.O. No. 183 dated April 10, 1995 by no less than the former President of the Philippines. He insists that on November 26, 2001 or before he filed with the JBC his verified PDS in support of his application for RTC Judge, he had no knowledge of A.O. No. 183; and that he was denied due process. He further argues that since all the criminal cases filed against him were dismissed on August 2, 1995 and July 17, 2000, and considering the fact that he resigned from office, his administrative case had become moot and academic. Respondent’s contentions utterly lack merit. No amount of explanation or justification can erase the fact that Judge Quitain was dismissed from the service and that he deliberately withheld this information. His insistence that he had no knowledge of A.O. No. 183 is belied by the newspaper items published relative to his dismissal. Neither can we give credence to the contention that he was denied due process.

TRUTH. HONOR. EXCELLENCE.

53

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

The documents submitted by the NAPOLCOM to the OCA reveal that Commissioner Alexis C. Canonizado, Chairman Ad Hoc Committee, sent him summons informing him that an administrative complaint had been filed against him and required him to file an answer. Then on March 29, 1993, respondent, through his counsel, Atty. Pedro Castillo, filed an Answer. In administrative proceedings, the essence of due process is simply an opportunity to be heard, or an opportunity to explain one’s side or opportunity to seek a reconsideration of the action or ruling complained of. Where opportunity to be heard either through oral arguments or through pleadings is accorded, there is no denial of due process. Furthermore, as we have earlier mentioned and which Judge Quitain ought to know, cessation from office by his resignation does not warrant the dismissal of the administrative complaint filed against him while he was still in the service nor does it render said administrative case moot and academic. Judge Quitain was removed from office after investigation and was found guilty of grave misconduct. His dismissal from the service is a clear proof of his lack of the required qualifications to be a member of the Bench. More importantly, it is clear that Judge Quitain deliberately misled the JBC in his bid to gain an exalted position in the Judiciary. Thus, we find respondent guilty of dishonesty. “Dishonesty” means “disposition to lie, cheat or defraud; unworthiness; lack of integrity.” By his concealment of his previous dismissal from the public service, which the Judicial and Bar Council would have taken into consideration in acting on his application, Judge Cube committed an act of dishonesty that rendered him unfit to be appointed to, and to remain now in, the Judiciary he has tarnished with his falsehood. WHEREFORE, Judge Enrique A. Cube of the Metropolitan Trial Court of Manila is DISMISSED with prejudice to his reappointment to any position in the government, including government-owned or controlled corporations, and with forfeiture of all retirement benefits. This decision is immediately executory. We cannot overemphasize the need for honesty and integrity on the part of all those who are in the service of the Judiciary. We have often stressed that the conduct required of court personnel, from the presiding judge to the lowliest clerk of court, must always be beyond reproach and circumscribed with the heavy burden of responsibility as to let them be free from any suspicion that may taint the Judiciary. We condemn, and will never countenance any conduct, act or omission on the part of all those involved in the administration of justice, which would violate the norm of public accountability and diminish or even just tend to diminish the faith of the people in the Judiciary. 

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

ARTICLE IX A. COMMON PROVISIONS Section 5. The Commission shall enjoy fiscal autonomy. Their approved annual appropriations shall be automatically and regularly released. Doctrine NOTE: The obligation of the Department of Budget Department to automatically release amounts appropriated for offices with fiscal autonomy means that DBM may not retain a portion of the amount or program. Civil Service Commission v Department of Budget, G.R. No. 158791, February 10, 2006. CIVIL SERVICE COMMISSION V. DEPT. OF BUDGET The DBM assails this Court’s interpretation of Article IX (A) Section 5 of the Constitution and Sections 62, 63, and 64 of the FY 2002 General Appropriations Act (R.A. No. 9162). It claims that the constitutional mandate to automatically and regularly release funds does not preclude the implementation of a cash payment schedule for all agencies, including those belonging to the constitutional fiscal autonomous group (CFAG). The schedule was explained as thus: Ideally, the Notice of Cash Allocation (NCA) should cover in full the monthly allotment of the agency. The reality, however, is that every national budget is based on revenue projections, and that there is an ever present risk that these revenue targets are not met in full during the course of the budget year. It thus becomes imperative for the Executive Department, through the DBM, to manage the release of funds through implementation of cash payment schedules. For instance, if collections for a given month meet the monthly revenue target, then the NCA for that month shall cover 100% of the allotment. If, however, collections do not meet the monthly revenue target, then the NCA to be released may not cover 100% of the allotment. Add a few more variables, such as amount of deficit and total disbursement of agencies, then one gets a cash payment schedule that varies on a monthly basis. Issue: WON the cash payment schedule violates fiscal autonomy? Held:YES, because the DBM is given undue discretion in releasing the funds of the CFAG. The Court finds that the DBM, in fact, exercised discretion denied it by the constitutional mandate to automatically release such funds. Understandably, a shortfall in revenue in a given year would constrain the DBM not to release the total amount appropriated by the GAA for the government as a whole during that year. However, the DBM is certainly not compelled by such circumstance to proportionately reduce the funds appropriated for each and every agency. Given a revenue shortfall, it is still very possible for the DBM to release the full amount appropriated for the agencies with fiscal autonomy, especially since, as noted in the Decision, the total appropriation for such agencies in recent years does not even reach 3% of the national budget. That the full amount is, in fact, not fully released during a given fiscal year is plainly due to a policy decision of the DBM. Such a decision, whether it goes by the label of “cash payment schedule” or any other term,

TRUTH. HONOR. EXCELLENCE.

54

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

cannot be reconciled with the constitutional mandate that the release to these agencies should be automatic.

B. THE CIVIL SERVICE COMMISSION Section 8. No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign government. Pensions or gratuities shall not be considered as additional, double, or indirect compensation. Doctrine Q. The compensation allocated for Directors of Water Districts is only per diem. May they be given bonuses? A. No. Bonuses would violate the rule against additional compensation. Cabili v. CSC, G.R. No. 156503, June 22, 2006. CABILI V. CSC Local Water Utilities Administration Employees Association for Progress (LEAP) filed a complaint before the CSC against Camilo P. Cabili and Antonio R. De Vera, Chairman of the Board of Trustees and Administrator, respectively, of the Local Water Utilities Administration (LWUA). The complaint prayed for investigation on the validity of the multiple directorship of LWUA Deputy Administrator Rodolfo de Jesus and his entitlement to per diems, representation and transportation allowance (RATA), discretionary fund, and other extraordinary and miscellaneous expenses (EME) from the Olongapo City Water District where he was designated as member of the board of directors. He received these monetary benefits in addition to his compensation as Deputy Administrator of LWUA. CSC ruled that it is illegal for any LWUA officer or employee who sits as a member of the board of directors of a water district to receive any additional or indirect compensation. The CSC relied on Section 8, Article IX(B) of the 1987 Constitution which states that “No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law.” Issue: WON CSC can rule on compensation matters of water district personnel? Held: YES. We affirm the CSC’s jurisdiction in promulgating policies on compensation matters of water district personnel. We held in De Jesus v. CSC, viz: “The present case involves the acts of LWUA officials who are concurrently designated as members of the boards of directors of water districts. This Court has consistently ruled that water districts are governmentowned and controlled corporations with original charters, since they have been created pursuant to PD 198. Hence, they are under the jurisdiction of the CSC.” On the issue of compensation and other monetary benefits, we rule that all allowances and benefits, other than per diems, are prohibited to directors of water districts. The compensation of directors of water districts is governed by Section 13 of P.D. No. 198, as amended. ection 13 of P.D. No. 198 specifies per diem as the compensation of members of the board of directors of water districts. It even limits the total amount of per diems they

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

are allowed to receive each month. Above all, Section 13 expressly states that they shall receive no compensation other than the specified per diems. The prohibition cannot be any clearer. Thus, both De Jesus and Baybay hold that P.D. No. 198 authorizes the directors of water districts to receive only per diems, and no other compensation or allowance in whatever form. Doctrine/Notes: CSC has jurisdiction over matters of compensation of water district personnel, especially when the case involves violations of the Code of Conduct and Ethical Standards for Public Officials and Employees (RA 6713). Settled is the rule that when a law confers jurisdiction, all the incidental powers necessary for its effective exercise are included in the conferment.

C. THE COMMISSION ON ELECTIONS Sec. 2. The Commission on Elections shall exercise the following powers and functions: (1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. (2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable. (3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters. (4) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections. (5) Register, after sufficient publication, political parties, organizations, or coalitions which, in addition to other requirements, must present their platform or program of government; and accredit citizens' arms of the Commission on Elections. Religious denominations and sects shall not be registered. Those which seek to achieve their goals through violence or unlawful means, or refuse to uphold and adhere to this Constitution, or which are supported by any foreign government shall likewise be refused registration. Financial contributions from foreign governments and their agencies to political parties, organizations, coalitions, or candidates related to elections, constitute interference in national affairs, and, when accepted, shall be an additional ground for the cancellation of their registration with the Commission, in addition to other penalties that may be prescribed by law. (6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters;

TRUTH. HONOR. EXCELLENCE.

55

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices. (7) Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidacies. (8) Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to, its directive, order, or decision. (9) Submit to the President and the Congress, a comprehensive report on the conduct of each election, plebiscite, initiative, referendum, or recall. Doctrine NOTE: The general rule is that the proclamation of a congressional candidate divests COMELEC of jurisdiction in favor of the HRET – unless the proclamation was invalid. Planas v Comelec, G.R. No. 167594, March 10, 2006. IX,C,02 The Court considered and acted on the following issues. Whether the Comelec has jurisdiction over the Drilon petition in Comelec Case asking for invalidatin of election of Atienza? (Yes, 7-6) Whether the Daza amendment to the Liberal party Constitution was validly ratified? (9-5, Yes) Whether the Comelec had jurisdiction to order the Liberal Party to hold elections of its officers? (Academic) Liberal Party (Drilon) v. Comelec, GR 174992, April 17, 2007. IX,C,02(1) The Comelec cannot be compelled to hold a third barangay special election. For the reasons given, there was no abuse of discretion. Macacua v. Comelec, GR 175390, May 8, 2007.

IX,C,02(2) The Comelec has the power to review decisions of municipal courts on municipal election contests. And when it does so, the entire case is not opened as happens in appleas on criminal cases. Manzala v. Comelec, GR 176211m May 8, 2007. IX,C,03 Q. May the Comelec en banc decide an election case still pending before a division? A. No. Election contests are first decided in division. Muñoz v Comelec, G.R. 170678, JULY 17, 2006. The rule is that a motion to reconsider a decision, resolution, order, or ruling of a COMELEC Division shall be elevated to the COMELEC En Banc. However, a motion to reconsider an interlocutory order of a COMELEC Division shall be resolved by the division which issued the interlocutory order, except when all the members of the division decide to refer the matter to the COMELEC En Banc. Soriano et al v Comelec, GR 164496-505, April 2, 2007.

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

While automatic elevation of a case erroneously filed with the Division to En Banc is not provided in the COMELEC Rules of Procedure, such action is not prohibited. Mutilan v Comelec, G.R. 1712468, April 2, 2007.

PLANAS V COMELEC Planas and Cabochan filed their respective certificates of rd candidacy for representative of the 3 District of QC. Cabochan filed her certificate of candidacy on Jan. 5, 2004, notarized on the same date by Atty. Fernandez whose commission as Notary Public was “Until December 31, 2003.” Ramil Cortiguerra, a registered voter of QC, filed before the COMELEC a “Petition to Deny Due Course and/or Cancellation of the Certificate of Candidacy of Congressional Candidate Cabochan.” Cabochan withdrew her COC and Matias Defensor, Jr. filed his in substitution of Cabochan. Comelec en banc in a minute resolution, gave due course to, among other things, the certificate of candidacy of Cabochan and that of Defensor. In the meantime, elections were held. Planas filed with the QC Board of Canvassers a Petition for Suspension of Canvassing of Votes in favor of Defensor. COMELEC First Division then granted Cortiguerra’s petition and accordingly denied due course and cancelled Cabochan’s Certificate of Candidacy and declared invalid Defensor’s substitution for her. Planas’ counsel submitted to the QC Board of Canvassers a copy of the Resolution of the COMELEC First Division on Cortiguerras’s petition and moved that the votes in favor of Defensor be no longer read. His motion was, denied on the ground that there was yet no order from the COMELEC Central Office disqualifying Defensor. Defensor was proclaimed as the winning candidate for the congressional seat of the Third District of Quezon City. Issue: Whether COMELEC was divested of its jurisdiction by virtue of Defensor’s proclamation and assumption of office as member of the House of Representatives? Held: The general rule is that the proclamation of a congressional candidate divests COMELEC of jurisdiction in favor of the HRET. This rule, however, is not without exception. As held in Mutuc v. Comelec: “It is indeed true that after proclamation the usual remedy of any party aggrieved in an election is to be found in an election protest. But that is so only on the assumption that there has been a valid proclamation. Where as in the case at bar the proclamation itself is illegal, the assumption of office cannot in any way affect the basic issues. “ In the case at bar, at the time of the proclamation of Defensor who garnered the highest number of votes, the Division Resolution invalidating his certificate of candidacy was not yet final, hence, he had at that point in time remained qualified. Therefore, his proclamation was valid or legal. Following Mutuc then, as at the time of Defensor’s proclamation the denial of his COC due course was not yet final, his proclamation was valid or legal and as he in fact had taken his oath of office and assumed his duties as representative, the COMELEC had been effectively divested of jurisdiction over the case.

TRUTH. HONOR. EXCELLENCE.

56

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

LIBERAL PARTY (DRILON) V. COMELEC The Court considered and acted on the following issues: 1. Whether the COMELEC has jurisdiction over the Drilon petition in COMELEC Case SPP No. 06-002; 2. Whether the Daza-Drilon amendments to the Salonga Liberal Party Constitution were validly ratified; and 3. Whether the COMELEC has jurisdiction to order the Liberal Party to hold the election of its officers. On the first issue, the Court voted 7-6 that the COMELEC has jurisdiction over the Drilon petition. On the second issue, the Court voted 9-5 that the Daza-Drilon amendments were validly ratified. In view of the voting on the second issue, the third issue has become academic. MACACUA V. COMELEC Petitioner Alimudin A. Macacua and private respondent Mike A. Fermin were candidates for Kabuntalan, Maguindanao Mayor in the May 2004 local elections. The Municipal Board of Canvassers of Kabuntalan proclaimed Fermin as winner. COMELEC, however, annulled the proclamation due to the failure of clustered polling precincts to function. Thus, the COMELEC scheduled a special election in such clustered precincts. In the special election, Macacua was proclaimed as the winning candidate for Mayor. Fermin challenged the special election due to alleged procedural infirmities. COMELEC nullified the special election. Macacua’s proclamation was set aside and Vice Mayor-elect temporarily assumed the mayoralty post. nd

COMELEC scheduled a 2 special election. It was peaceful and orderly at the onset. However, at about 1:45 p.m., the election was disrupted when two persons, in the queue where the voters’ verification was being made, engaged in a heated argument and began pushing each other. They were later pacified. But before the special election could be concluded at 3pm, Chairman Suan-Radam stopped the election upon the advice of P/S Supt. Lumala Gunting, head of the PNP contingent, that armed elements were seen in the vicinity of the barangay. There were still 31 voters lined up to vote in the precinct when the election was stopped.

Thereafter, Comelec issued a Resolution denying or dismissing with finality any and all motions for the holding/conduct of a third and/or another special election in Barangay Guiawa for the position of Mayor of Kabuntalan, Maguindano in view of the failure of the second special election held thereat on 6 May 2006. ACCORDINGLY, the hiatus created by this decision in the herein contested position shall be filled in accordance with the provisions of Republic Act No. 7160, otherwise known as the Local Government Code. Issue: Whether or not the Public Respondent COMELEC [en banc] committed grave abuse of discretion amounting to lack or excess of jurisdiction in promulgating the questioned Resolution on November 20, 2006, disallowing the holding of a third Special Election for lack of funds? Held: NO, the COMELEC en banc’s decision not to hold a third special election in Barangay Guiawa for the position of Mayor of Kabuntalan, Maguindanao cannot be characterized as capricious, whimsical or arbitrary since it was based on the following considerations: (1) lack of available funds for holding another special election in Barangay Guiawa; (2) the anomalies that transpired during the regular and two special elections which all resulted in failure of election do not inspire assurance that the will of the voters in the area will be upheld in another special election; and (3) the next regular elections scheduled on May 14, 2007 is close-by. The COMELEC en banc enunciated that it would be impractical in terms of time, effort and money to declare the holding of a third special election in Barangay Guiawa, and it would be disadvantageous to the government, specifically to the Commission. The decision of the COMELEC en banc should not be taken as an abdication of its duty to conduct elections, but a judgment call by the Commission based on lack of available funds to hold another special election, the peculiar circumstances of this case, and the fast approaching regular elections on May 14, 2007 that would render the result of another special election moot. Based on the foregoing, the COMELEC en banc did not gravely abuse its discretion in issuing the Resolution dated November 20, 2006, denying petitioner’s motion to hold a third special election in Barangay Guiawa for the position of Mayor of Kabuntalan, Maguindanao.

Per canvass, petitioner obtained 136 votes, while private respondent garnered 39 votes. When the election results were added, petitioner and private respondent got 2,208 votes each, ending in a tie. The SMBOC notified the parties concerned that a Special Public Hearing would be held to break the tie pursuant to Sec. 240 of the Omnibus Election Code. Petitioner filed with the COMELEC en banc an Extremely Urgent Omnibus Motion to hold in abeyance the hearing, which was granted. Despite the Order, the Special Public Hearing pushed through and the SMBOC proclaimed private respondent as the duly elected Mayor. Petitioner filed a Manifestation and Motion to nullify the proclamation of private respondent. COMELEC en banc issued an Order, which annulled the proceedings of the Special Public Hearing and set aside the proclamation of private respondent.

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

MANZALA V. COMELEC Petitioner Manzala and private respondent Monton were mayoralty candidates in the Municipality of Magdiwang, Romblon, during the May 10, 2004 National and Local Elections. On May 13, 2004, the Municipal Board of Canvassers proclaimed Monton as the duly elected Municipal Mayor. Manzala filed an election protest with the RTC of Romblon for fraud, serious irregularities, and willful violation of the Omnibus Election Code. A revision of ballots was later conducted. In its decision, the trial court rendered judgment in favor of petitioner, annulling the previous proclamation of Monton. On appeal, Former Second Division of the COMELEC reversed and set aside the decision of the trial court. It found that Monton

TRUTH. HONOR. EXCELLENCE.

57

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

obtained 2,560 votes, or a margin of 17 votes, over Manzala’s 2,543 votes. Manzala’s MR was denied. Consequently, COMELEC en banc directed the implementation of the writ of execution ordering Manzala to cease and desist from discharging the powers and functions of the Office of the Municipal Mayor of Magdiwang, Romblon; to relinquish and vacate the post in favor of Monton. Issue: WON Comelec’s reversal of the RTC was proper? Held: YES. Section 2 (2) of Article IX-C of the Consti provides COMELEC with quasi-judicial power to exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal & barangay offices shall be final, executory, and unappealable. Clearly, from the decision of the trial court, the COMELEC exercises appellate jurisdiction to review, revise, modify, or even reverse and set aside the decision of the former and substitute it with its own decision. In the exercise of its adjudicatory or quasi-judicial powers, the Constitution also mandates the COMELEC to hear and decide cases first by division and upon motion for reconsideration, by the COMELEC en banc. Election cases cannot be treated in a similar manner as criminal cases where, upon appeal from a conviction by the trial court, the whole case is thrown open for review and the appellate court can resolve issues which are not even set forth in the pleadings. Moreover, the appreciation of the contested ballots and election documents involves a question of fact best left to the determination of the COMELEC, a specialized agency tasked with the supervision of elections all over the country. COMELEC is the constitutional commission vested with the exclusive original jurisdiction over election contests involving regional, provincial and city officials, as well as appellate jurisdiction over election protests involving elective municipal and barangay officials. Consequently, in the absence of grave abuse of discretion or any jurisdictional infirmity or error of law, the factual findings, conclusions, rulings and decisions rendered by the said Commission on matters falling within its competence shall not be interfered with by this Court.

FR. JOAQUIN BERNAS, S.J.

Private respondent filed with the COMELEC a petition to annul the proclamation of the petitioner for being premature and illegal. The case was docketed as SPC No. 04-124 and raffled to the COMELEC First Division. COMELEC First Division rendered a Resolution in SPC No. 04124 granting the petition to annul the proclamation. Petitioner’s motion for reconsideration was denied for lack of merit by the COMELEC En Banc. Issue: WON the proclamation of petitioner was valid? Held: NO, COMELEC First Division correctly annulled the proclamation of the petitioner. Time and again, this Court has given its imprimatur on the principle that COMELEC is with authority to annul any canvass and proclamation which was illegally made. At the time the proclamation was made, the COMELEC First Division had not yet resolved SPC No. 04-087. Pursuant to Section 36(i) of COMELEC Resolution No. 6669, which finds basis in Section 20(i) of RA7166, the MBC should not have proclaimed petitioner as the winning candidate absent the authorization from the COMELEC. Any proclamation made under such circumstances is void ab initio. We likewise do not agree with petitioner’s contention that the proclamation was valid as the contested ERs will not affect the results of the election. Section 20(i) of R.A. No. 7166 reads: ”Sec. 20. Procedure in Disposition of Contested Election Returns. – (i) The board of canvassers shall not proclaim any candidate as winner unless authorized by the Commission after the latter has ruled on the objections brought to it on appeal by the losing party. Any proclamation made in violation hereof shall be void ab initio, unless the contested returns will not adversely affect the results of the election.” The phrase “results of the election” is not statutorily defined. However, it had been jurisprudentially explained: “The net result of the election in the rest of the precincts in a given constituency, such that if the margin of a leading candidate over that of his closest rival in the latter precincts is less than the total number of votes in the precinct where there was failure of election, then such failure would certainly affect “the result of the election.” In the case at bar, petitioner obtained a margin of 762 votes over respondent based on the canvass of the uncontested ERs whereas the total number of votes is 5,178, higher than the 762-lead of the petitioner over private respondent. Clearly, the results of the election would be adversely affected by the uncanvassed returns. SORIANO ET AL V COMELEC

MUÑOZ V COMELEC Petitioner and private respondent were candidates for mayor of Camalig, Albay in the May 10, 2004 election. At 6pm of May 10, 2004, the Municipal Board of Canvassers (MBC) convened and canvassed the election returns. Lawyers of private respondent objected to the inclusion of the 26 ERs.

Petitioners and private respondents were candidates for City Council for the First and Second Districts of Muntinlupa City in the 10 May 2004 elections.

MBC denied the objections and ruled to include the objected ERs. Private respondent appealed to the COMELEC and was docketed as SPC No. 04-087 and raffled to the COMELEC First Division.

After the elections, the Muntinlupa City Board of Canvassers proclaimed private respondents as the duly elected Councilors of the Muntinlupa City Council. Petitioners individually and separately filed election protest cases against private respondents, contesting the results of the elections in all the 603 precincts of the First District and the 521 precincts of the Second District of Muntinlupa City.

Despite the pendency of the appeal, petitioner was proclaimed on May 19, 2004 by the MBC as the winning candidate for mayor of Camalig, Albay.

COMELEC First Division issued two identical orders. The first order directed petitioners (protestants) to deposit P454,020 each to the COMELEC Cash Division to defray expenses under

JEN LAYGO 4D 2007

TRUTH. HONOR. EXCELLENCE.

58

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

Section 8, Rule 20 of the COMELEC Rules, in the revision of 603 protested precincts in the First District of Muntinlupa City. The order also directed respondents (protestees) to deposit P454,020 each to the COMELEC Cash Division in the revision of 603 counter-protested precincts in the First District of Muntinlupa City. The second order directed petitioners (protestants) to deposit P408,990 each to the COMELEC Cash Division in the revision of 521 protested precincts in the Second District of Muntinlupa. The order also directed respondents (protestees) to deposit P408,990 each to the COMELEC Cash Division in the revision nd District of of 521 counter-protested precincts in the 2 Muntinlupa. Petitioners filed a motion for reconsideration of the Orders dated 26 June 2004. The COMELEC First Division denied the motion. Petitioners filed a petition for certiorari and prohibition with prayer for the issuance of a writ of preliminary injunction or temporary restraining order. Petitioners alleged that the Orders dated 26 June 2004 of the COMELEC First Division were issued with grave abuse of discretion amounting to lack or excess of jurisdiction. Petitioners maintain that the cash deposit of P454,020 to defray the expenses for the revision of the ballots for the First District of Muntinlupa should be paid jointly by all the protestants for the First District and that to require them to pay P454,020 each constitutes grave abuse of discretion. In the same manner, the cash deposit of P408,990 to defray the expenses for the revision of the ballots for the Second District of Muntinlupa should be paid jointly by all the protestants for the Second District and that to require them to pay P408,990 each constitutes grave abuse of discretion. Issue: Whether a writ of certiorari will lie in this case? Held: NO. The rule is that a motion to reconsider a decision, resolution, order, or ruling of a COMELEC Division shall be elevated to the COMELEC En Banc. However, a motion to reconsider an interlocutory order of a COMELEC Division shall be resolved by the division which issued the interlocutory order, except when all the members of the division decide to refer the matter to the COMELEC En Banc. Also, the general rule is that a decision or an order of a COMELEC Division cannot be elevated directly to this Court through a special civil action for certiorari. Furthermore, a motion to reconsider a decision, resolution, order, or ruling of a COMELEC Division shall be elevated to the COMELEC En Banc. However, a motion to reconsider an interlocutory order of a COMELEC Division shall be resolved by the division which issued the interlocutory order, except when all the members of the division decide to refer the matter to the COMELEC En Banc. Thus, in general, interlocutory orders of a COMELEC Division are not appealable, nor can they be proper subject of a petition for certiorari. To rule otherwise would not only delay the disposition of cases but would also unnecessarily clog the Court docket and unduly burden the Court. This does not mean that the aggrieved party is without recourse if a COMELEC Division denies the motion for reconsideration. The aggrieved party can still assign as error the interlocutory order if in the course of the proceedings he decides to appeal the main case to the COMELEC En Banc. The exception enunciated in Kho and

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

Repol is when the interlocutory order of a COMELEC Division is a patent nullity because of absence of jurisdiction to issue the interlocutory order, as where a COMELEC Division issued a temporary restraining order without a time limit, which is the Repol case, or where a COMELEC Division admitted an answer with counter-protest which was filed beyond the reglementary period, which is the Kho case. It is the decision, order or ruling of the COMELEC En Banc that, in accordance with Section 7, Art. IX-A of the Constitution, may be brought to the Supreme Court on certiorari.” The exception provided in Kho and Repol is unavailing in this case because unlike in Kho and Repol, the assailed interlocutory orders of the COMELEC First Division in this case are not a patent nullity. The assailed orders in this case involve the interpretation of the COMELEC Rules of Procedure. Neither will the Rosal case apply because in that case the petition for certiorari questioning the interlocutory orders of the COMELEC Second Division and the petition for certiorari and prohibition assailing the Resolution of the COMELEC En Banc on the main case were already consolidated. The Court also notes that the COMELEC First Division has already issued an Order dismissing the protests and counterprotests for failure of the protestants and protestees to pay the required cash deposits. Thus, we have this peculiar situation where the interlocutory order of the COMELEC First Division is pending before this Court but the main case has already been dismissed by the COMELEC First Division. This situation is precisely what we are trying to avoid by insisting on strict compliance of the rule that an interlocutory order cannot by itself be the subject of an appeal or a petition for certiorari. MUTILAN V COMELEC Mutilan and private respondent Ampatuan were candidates for Governor during the election of regional officials held on 8 August 2005 in the Autonomous Region of Muslim Mindanao (ARMM). Private respondent was proclaimed as the duly elected Governor of the ARMM. Petitioner filed an Electoral Protest and/or Petition to Annul the Elections. He contested the results of the elections in Maguindanao, Basilan, Tawi-Tawi, and Sulu on the ground that no actual election was conducted in the precincts in these provinces. Petitioner alleged that the voters did not actually vote and that the ballots were filled up by non-registered voters. Petitioner also contested the results in 7 municipalities in Lanao del Sur where massive substitute voting allegedly took place. COMELEC Second Division dismissed the petition. The Division stated that during the initial hearing of the case, petitioner’s counsel admitted that the petition was not an election protest but one for annulment of elections and sought for elevation of the case to the Comelec En Banc. The COMELEC Second Division ruled that jurisdiction over petitions for annulment of elections is vested in the COMELEC En Banc. However, the elevation of the case to the COMELEC En Banc is not sanctioned by the rules or by jurisprudence. Thus, the COMELEC Second Division dismissed the petition for lack of jurisdiction. Comelec En Banc affirmed upon MR. Issue: Whether the COMELEC Second Division acted in excess of its jurisdiction and with grave abuse of discretion amounting to lack or excess of jurisdiction in dismissing the petition to

TRUTH. HONOR. EXCELLENCE.

59

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

annul elections and in not elevating the petition to the COMELEC En Banc. Held: The COMELEC Second Division is Not Prohibited from Elevating the Petition to the COMELEC En Banc. Under Section 3, Article IX-C of the 1987 Constitution, all election cases, including pre-proclamation controversies, must be heard and decided by a division of the COMELEC. The COMELEC Second Division ruled that automatic elevation of the case to the En Banc is not sanctioned by the rules or by jurisprudence. Petitioner argues that the COMELEC Second Division should have elevated the petition to the COMELEC En Banc instead of dismissing the petition for lack of jurisdiction. We agree with petitioner. While automatic elevation of a case erroneously filed with the Division to En Banc is not provided in the COMELEC Rules of Procedure, such action is not prohibited. Section 4, Rule 2 of the COMELEC Rules of Procedure provides: “Means to Effect Jurisdiction. - All auxiliary writs, processes and other means necessary to carry into effect its powers or jurisdiction may be employed by the Commission; and if the procedure to be followed in the exercise of such power or jurisdiction is not specifically provided for by law or these rules, any suitable process or proceeding may be adopted.” Hence, there is nothing in the COMELEC Rules of Procedure to prevent the COMELEC Second Division from referring the petition to annul the elections to the COMELEC En Banc. Nevertheless, the petition must still fail. In his Electoral Protest and/or Petition to Annul the Elections, petitioner alleged that no actual election was conducted in the contested areas. Petitioner further alleged that the voters did not actually vote and the ballots were filled up by non-registered voters. Petitioner also alleged massive disenfranchisement and substitute voting. Petitioner argued that the irregularities warrant the annulment and setting aside of the elections in the contested areas. There are three instances where a failure of elections may be declared, thus: (a) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud or other analogous causes; (b) the election in any polling place has been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud or other analogous causes; or (c) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect on account of force majeure, violence, terrorism, fraud or other analogous causes. In all three instances, there is a resulting failure to elect. In the first instance, the election has not been held. In the second instance, the election has been suspended. In the third instance, the preparation and the transmission of the election returns give rise to the consequent failure to elect; the third instance is interpreted to mean that nobody emerged as a winner. None of the three instances is present in this case. In this case, the elections took place. In fact, private respondent was proclaimed the winner. Petitioner contests the results of the

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

elections on the grounds of massive disenfranchisement, substitute voting, and farcical and statistically improbable results. Petitioner alleges that no actual election was conducted because the voters did not actually vote and the ballots were filled up by non-registered voters.

D. THE COMMISSION ON AUDIT Section 1. (1) There shall be a Commission on Audit composed of a Chairman and two Commissioners, who shall be naturalborn citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, Certified Public Accountants with not less than ten years of auditing experience, or members of the Philippine Bar who have been engaged in the practice of law for at least ten years, and must not have been candidates for any elective position in the elections immediately preceding their appointment. At no time shall all Members of the Commission belong to the same profession. (2) The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, the Chairman shall hold office for seven years, one Commissioner for five years, and the other Commissioner for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. Doctrines COA can settle money claims based on laws. But if a money claim is denied by a law, COA has no authority to pass judgment on the constitutionality of the law. Parreño v. COA, G.R. 162224 June 7, 2007 NOTE: The obligation of the Department of Budget to automatically release amounts appropriated for offices with fiscal autonomy means that DBM may not retain a portion of the amount. CSC v. DBM, G.R. No. 158791, February 10, 2006. When the law says that money generated by a school may be used for “other programs/projects of the university or college,” it is not authorization for giving additional or double compensation. Benguet State U v. Colting, G.R. No. 169637, June 8, 2007. PARREÑO V. COA Salvador Parreño served in the AFP for 32 years. In 1982, petitioner retired, availed, and received payment, of a lump sum pension equivalent to three years pay. In 1985, he started receiving his monthly pension. Petitioner migrated to Hawaii and became a naturalized American citizen. In January 2001, the AFP stopped petitioner’s monthly pension in accordance with Section 27 of PD1638, providing that a retiree who loses his Filipino citizenship shall be removed from the retired list and his retirement benefits terminated upon loss of Filipino citizenship. Petitioner

TRUTH. HONOR. EXCELLENCE.

60

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

requested for recon-sideration but the Judge Advocate General of the AFP denied the request. Petitioner filed a claim before the COA for the continuance of his monthly pension. COA denied petitioner’s claim for lack of jurisdiction. Petitioner filed a motion for reconsideration. Petitioner alleged that the COA has the power and authority to incidentally rule on the constitutionality of Section 27 of PD 1638, as amended. Petitioner alleged that a direct recourse to the court would be dismissed for failure to exhaust administrative remedies. Petitioner further alleged that since his monthly pension involves government funds, the reason for the termination of the pension is subject to COA’s authority and jurisdiction. COA denied the motion. It ruled that the doctrine of exhaustion of administrative remedies does not apply if the administrative body has, in the first place, no jurisdiction over the case. COA also ruled that assuming it has jurisdiction over the claim, petitioner’s entitlement to the retirement benefits he was previously receiving must necessarily cease upon the loss of his Filipino citizenship in accordance with Section 27 of PD 1638, as amended. Issue: Whether COA has constitutionality of PD 1638?

jurisdiction

to

rule

on

the

Held: NO. Under Commonwealth Act No. 327, as amended by Presidential Decree No. 1445, money claims against the government shall be filed before the COA. The jurisdiction of the COA over money claims against the government does not include the power to rule on the constitutionality or validity of laws. The 1987 Constitution vests the power of judicial review or the power to declare unconstitutional a law, treaty, international or executive agreement, presidential decree, order, instruction, ordinance, or regulation in this Court and in all Regional Trial Courts. Petitioner’s money claim essentially involved the constitutionality of Section 27 of PD 1638, as amended. Hence, COA did not commit grave abuse of discretion in dismissing petitioner’s money claim. Petitioner submits that the COA has the authority to order the restoration of his pension even without ruling on the constitutionality of Section 27 of PD 1638, as amended. However, COA effectively denied petitioner’s claim because of the loss of his Filipino citizenship. Petitioner failed to overcome the presumption of constitutionality of Section 27 of PD 1638, as amended. Unless the provision is amended or repealed in the future, the AFP has to apply Section 27 of PD 1638, as amended. CSC V. DBM The DBM assails this Court’s interpretation of Article IX (A) Section 5 of the Constitution and Sections 62, 63, and 64 of the FY 2002 General Appropriations Act (R.A. No. 9162). It claims that the constitutional mandate to automatically and regularly release funds does not preclude the implementation of a cash payment schedule for all agencies, including those belonging to the constitutional fiscal autonomous group (CFAG). The schedule was explained as thus: Ideally, the Notice of Cash Allocation (NCA) should cover in full the monthly allotment of the agency. The reality, however, is that every national budget is based on revenue projections, and that there is an ever

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

present risk that these revenue targets are not met in full during the course of the budget year. It thus becomes imperative for the Executive Department, through the DBM, to manage the release of funds through implementation of cash payment schedules. For instance, if collections for a given month meet the monthly revenue target, then the NCA for that month shall cover 100% of the allotment. If, however, collections do not meet the monthly revenue target, then the NCA to be released may not cover 100% of the allotment. Add a few more variables, such as amount of deficit and total disbursement of agencies, then one gets a cash payment schedule that varies on a monthly basis. Issue: WON the cash payment schedule violates fiscal autonomy? Held:YES, because the DBM is given undue discretion in releasing the funds of the CFAG. The Court finds that the DBM, in fact, exercised discretion denied it by the constitutional mandate to automatically release such funds. Understandably, a shortfall in revenue in a given year would constrain the DBM not to release the total amount appropriated by the GAA for the government as a whole during that year. However, the DBM is certainly not compelled by such circumstance to proportionately reduce the funds appropriated for each and every agency. Given a revenue shortfall, it is still very possible for the DBM to release the full amount appropriated for the agencies with fiscal autonomy, especially since, as noted in the Decision, the total appropriation for such agencies in recent years does not even reach 3% of the national budget. That the full amount is, in fact, not fully released during a given fiscal year is plainly due to a policy decision of the DBM. Such a decision, whether it goes by the label of “cash payment schedule” or any other term, cannot be reconciled with the constitutional mandate that the release to these agencies should be automatic. Doctrine/Notes: Automatic release in the Constitution means FULL release. BENGUET STATE U V. COLTING Congress passed Ra8292, or the Higher Education Modernization Act of 1997. Pursuant to Section 4 (d) of the said law, the Board of Regents of BSU passed and approved Board Resolution 794, granting rice subsidy and health care allowance to BSU’s employees. The sums were taken from the income derived from the operations of BSU and were given to the employees at different periods in 1998. The grant of this rice subsidy and health care allowance in the total amount of P4,350,000.00 was disallowed in audit under Notice of Disallowance 99-001-STF(98), stating that RA8292 does not provide for the grant of said allowance to employees and officials of the university. BSU requested the lifting of the disallowance with the COA Regional Office but it was denied in COA-CAR Decision No. 2000-3 dated January 26, 2000. Citing Section 55 (2) of R.A. No. 8522 or the General Appropriation Act of 1998, it held that a non-existent item, project, activity, purpose, or object of expenditure cannot be funded by augmentation from savings or by the use of appropriations. It further held that the grant of said allowances lacked statutory basis, transgressed the constitutional proscription on additional, double, or indirect

TRUTH. HONOR. EXCELLENCE.

61

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

compensation and ran counter to the provisions of the Salary Standardization Law. BSU thereafter filed a petition for review of Decision No. 2000-3 with the COA, which petition was denied in Decision No. 2003112. A motion for reconsideration was filed but was denied. Issue: WON COA erred in disallowing the rice subsidy and health care? Held: NO. It bears noting that what was filed before this Court is a petition captioned as a Petition for Review on Certiorari. We point out that a petition for review on certiorari is not the proper mode by which the COA’s decisions are reviewed by this Court. Under Rule 64, Section 2 of the 1997 Rules of Civil Procedure, a judgment or final order of the COA may be brought by an aggrieved party to this Court on certiorari under Rule 65. Thus, it is only through a petition for certiorari under Rule 65 that the COA's decisions may be reviewed and nullified by us on the ground of grave abuse of discretion or lack or excess of jurisdiction. What is clear from Section 4 (d) of R.A. No. 8292 cited by BSU as legal basis of its claim as well as from its implementing rules is that income generated by the university may be disbursed by its Governing Board for “instruction, research, extension, or other programs/projects of the university or colleges.” BSU theorizes that the phrase “other programs/projects of the university or college” in Section 4 (d) covers all projects and programs of the university, including those designed to uplift the economic plight of the employees. It is not limited to those programs which the university may specifically undertake in pursuance of its primary objective to achieve quality education, contrary to the interpretation of the COA. We disagree. Under the principle of ejusdem generis, where a statute describes things of a particular class or kind accompanied by words of a generic character, the generic word will usually be limited to things of a similar nature with those particularly enumerated, unless there be something in the context of the statute which would repel such inference. The COA correctly ruled that the “other programs/projects” under R.A. No. 8292 and its Implementing Rules should be of the same nature as instruction, research, and extension. In BSU's case, the disbursements were for rice subsidy and health care allowances which are, in no way, intended for academic programs similar to instruction, research, or extension. Section 4 (d) cannot, therefore, be relied upon by BSU as the legal basis for the grant of the allowances. Furthermore, a reading of the entire provision supports the COA’s interpretation that the authority given to the Governing Board of state universities and colleges is not plenary and absolute. It is clear in Section 4 that the powers of the Governing Board are subject to limitations. This belies BSU's claim of plenary and absolute authority. Neither can BSU find solace in the academic freedom clause of the Constitution. Academic freedom as adverted to in the Constitution and in R.A. No. 8292 only encompasses the freedom of the institution of higher learning to determine for itself, on academic grounds, who may teach, what may be taught, how it shall be taught, and who may be admitted to study. The guaranteed academic freedom does not grant an institution of higher learning unbridled authority to disburse its funds and grant additional benefits sans statutory basis.

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

Unfortunately for BSU, it failed to present any sound legal basis that would justify the grant of these additional benefits to its employees.  ARTICLE X - LOCAL GOVERNMENT Section 5. Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments. Doctrines Q. Summarize the interplay of the inherent power of Congress to tax and the constitutionally delegated power of local governments to tax. A. Local governments no longer receive its power to tax from Congress. The Constitution has given it to them. However, Congress retains its inherent and superior power. Thus Congress can give tax exemptions which local governments must follow. Historically, after the effectivity of the 1987 Constitution, the Local Government Code withdrew previously granted exemptions. Because of this, local governments were able to tax previously exempted subjects. Subsequently, however, Congress restored tax exemptions in some cases. This subsequent law prevails. Quezon City v Bayantel, G.R. No. 162015, March 6, 2006. Q. Are the Airport Lands and Buildings of MIAA exempt from real estate tax under existing laws. A. They are. First, MIAA is not a government-owned or controlled corporation but an instrumentality of the National Government and is thus exempt from local taxation. Second, the real properties of MIAA are owned by the Republic of the Philippines and thus exempt from real estate tax. Manila International Airport v. Court of Appeals, G.R. 155650, July 20, 2006. The inherent taxing power of Congress can limit the constitutionally delegated taxing power of local governments. Digital v Pangasinan, GR 152534, February 23, 2007. QUEZON CITY V. BAYANTEL Bayantel is a legislative franchise holder under RA32594 to establish and operate radio stations for domestic telecommunications, radiophone, broadcasting and telecasting. Section 14 of its franchise states: “(a) The grantee shall be liable to pay the same taxes on its real estate, buildings and personal property, exclusive of the franchise, as other persons or corporations are now or hereafter may be required by law to pay. (b) The grantee shall further pay to the Treasurer of the Philippines each year, within ten days after the audit and approval of the accounts as prescribed in this Act, one and one-half per centum of all gross receipts from the business transacted under this franchise by the said grantee.”

TRUTH. HONOR. EXCELLENCE.

62

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

Under the LGC or RA7160 SEC. 232. Power to Levy Real Property Tax. A province or city or a municipality within the Metropolitan Manila Area may levy an annual ad valorem tax on real property such as land, building, machinery and other improvements not hereinafter specifically exempted. SEC. 234 - Exemptions from Real Property Tax. The following are exempted from payment of the real property tax: Except as provided herein, any exemption from payment of real property tax previously granted to, or enjoyed by, all persons, whether natural or juridical, including government-owned-or-controlled corporations is hereby withdrawn upon effectivity of this Code.

Barely few months after the LGC took effect, Congress enacted RA7633, amending Bayantel’s original franchise. It stated: “SEC. 11. The grantee, its successors or assigns shall be liable to pay the same taxes on their real estate, buildings and personal property, exclusive of this franchise, as other persons or corporations are now or hereafter may be required by law to pay. In addition thereto, the grantee, its successors or assigns shall pay a franchise tax equivalent to three percent (3%) of all gross receipts of the telephone or other telecommunications businesses transacted under this franchise by the grantee, its successors or assigns and the said percentage shall be in lieu of all taxes on this franchise or earnings thereof. Provided, That the grantee, its successors or assigns shall continue to be liable for income taxes payable under Title II of the National Internal Revenue Code.”

In 1993, the government of Quezon City, pursuant to the taxing power vested on local government units by Section 5, Article X of the 1987 Constitution, in relation to Section 232 of the LGC, enacted a City Ordinance otherwise known as the Quezon City Revenue Code, imposing a real property tax on all real properties in Quezon City, and, reiterating the withdrawal of exemption from real property tax under Section 234 of the LGC. Furthermore, much like the LGC, the QCRC, under its Section 230, withdrew tax exemption privileges in general. Meanwhile, RA7925, otherwise known as the "Public Telecommunications Policy Act of the Philippines," envisaged to level the playing field among telecommunications companies, took effect. Section 23 of the Act provides: “SEC. 23. Equality of Treatment in the Telecommunications Industry. Any advantage, favor, privilege, exemption, or immunity granted under existing franchises, or may hereafter be granted, shall ipso facto become part of previously granted telecommunications franchises and shall be accorded immediately and unconditionally to the grantees of such franchises: Provided, however, That the foregoing shall neither apply to nor affect provisions of telecommunications franchises concerning territory covered by the franchise, the life span of the franchise, or the type of service authorized by the franchise.”

Issue: Whether or not Bayantel’s real properties in Quezon City are exempt from real property taxes under its legislative franchise? Held: YES. Bayantel’s franchise being national in character, the "exemption" thus granted under Section 14 of RA3259 applies to all its real or personal properties found anywhere within the Philippine archipelago. However, with the LGC’s taking effect on January 1, 1992, Bayantel’s "exemption" from real estate taxes for properties of whatever kind located within the Metro Manila area was, by force of Section 234 of the Code, expressly withdrawn. But, not long thereafter, however, or on July 20, 1992, Congress passed RA7633 amending Bayantel’s original franchise. Worthy of note is that Section 11 of RA7633 is a virtual re-enacment of the tax provision, i.e., Section 14 of Bayantel’s original franchise under RA3259. Stated otherwise, Section 14 of Rep. Act No. 3259 which was deemed impliedly repealed by Section 234 of the LGC was expressly revived under Section 14 of RA7633. In

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

concrete terms, the realty tax exemption heretofore enjoyed by Bayantel under its original franchise, but subsequently withdrawn by force of Section 234 of the LGC, has been restored by Section 14 of RA7633. The Court has taken stock of the fact that by virtue of Section 5, Article X of the 1987 Constitution, local governments are empowered to levy taxes. And pursuant to this constitutional empowerment, juxtaposed with Section 2329 of the LGC, the Quezon City government enacted in 1993 its local Revenue Code, imposing real property tax on all real properties found within its territorial jurisdiction. And as earlier stated, the City’s Revenue Code, just like the LGC, expressly withdrew, under Section 230 thereof, supra, all tax exemption privileges in general. This thus raises the question of whether or not the City’s Revenue Code pursuant to which the city treasurer of Quezon City levied real property taxes against Bayantel’s real properties located within the City effectively withdrew the tax exemption enjoyed by Bayantel under its franchise, as amended. Bayantel answers the poser in the negative arguing that once again it is only "liable to pay the same taxes, as any other persons or corporations on all its real or personal properties, exclusive of its franchise." Bayantel’s posture is well-taken. While the system of local government taxation has changed with the onset of the 1987 Constitution, the power of local government units to tax is still limited. Clearly then, while a new slant on the subject of local taxation now prevails in the sense that the former doctrine of local government units’ delegated power to tax had been effectively modified with Article X, Section 5 of the 1987 Constitution now in place, .the basic doctrine on local taxation remains essentially the same. For as the Court stressed in Mactan, "the power to tax is [still] primarily vested in the Congress." This new perspective is best articulated by Fr. Joaquin G. Bernas, S.J., himself a Commissioner of the 1986 Constitutional Commission which crafted the 1987 Constitution, thus: What is the effect of Section 5 on the fiscal position of municipal corporations? Section 5 does not change the doctrine that municipal corporations do not possess inherent powers of taxation. What it does is to confer municipal corporations a general power to levy taxes and otherwise create sources of revenue. They no longer have to wait for a statutory grant of these powers. The power of the legislative authority relative to the fiscal powers of local governments has been reduced to the authority to impose limitations on municipal powers. Moreover, these limitations must be "consistent with the basic policy of local autonomy." The important legal effect of Section 5 is thus to reverse the principle that doubts are resolved against municipal corporations. Henceforth, in interpreting statutory provisions on municipal fiscal powers, doubts will be resolved in favor of municipal corporations. It is understood, however, that taxes imposed by local government must be for a public purpose, uniform within a locality, must not be confiscatory, and must be within the jurisdiction of the local unit to pass. In net effect, the controversy presently before the Court involves, at bottom, a clash between the inherent taxing power of the legislature, which necessarily includes the power to exempt, and the local government’s delegated power to tax under the aegis of the 1987 Constitution.

TRUTH. HONOR. EXCELLENCE.

63

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

Indeed, the grant of taxing powers to local government units under the Constitution and the LGC does not affect the power of Congress to grant exemptions to certain persons, pursuant to a declared national policy. The legal effect of the constitutional grant to local governments simply means that in interpreting statutory provisions on municipal taxing powers, doubts must be resolved in favor of municipal corporations. As we see it, then, the issue in this case no longer dwells on whether Congress has the power to exempt Bayantel’s properties from realty taxes by its enactment of RA7633 which amended Bayantel’s original franchise. The more decisive question turns on whether Congress actually did exempt Bayantel’s properties at all by virtue of Section 11 of RA7633. Admittedly, RA7633 was enacted subsequent to the LGC. Perfectly aware that the LGC has already withdrawn Bayantel’s former exemption from realty taxes, Congress opted to pass RA7633 using, under Section 11 thereof, exactly the same defining phrase "exclusive of this franchise" which was the basis for Bayantel’s exemption from realty taxes prior to the LGC. In plain language, Section 11 of RA 7633 states that "the grantee, its successors or assigns shall be liable to pay the same taxes on their real estate, buildings and personal property, exclusive of this franchise, as other persons or corporations are now or hereafter may be required by law to pay." The Court views this subsequent piece of legislation as an express and real intention on the part of Congress to once again remove from the LGC’s delegated taxing power, all of the franchisee’s (Bayantel’s) properties that are actually, directly and exclusively used in the pursuit of its franchise. MIAA V. CA Petitioner Manila International Airport Authority (MIAA) operates the NAIA Complex in Parañaque City under EO903, otherwise known as the Revised Charter of the Manila International Airport Authority. As operator of the international airport, MIAA administers the land, improvements and equipment within the NAIA Complex. The MIAA Charter transferred to MIAA approximately 600 hectares of land, including the runways and buildings ("Airport Lands and Buildings") then under the Bureau of Air Transportation. The MIAA Charter further provides that no portion of the land transferred to MIAA shall be disposed of through sale or any other mode unless specifically approved by the President of the Philippines. The Office of the Government Corporate Counsel (OGCC) issued Opinion 061, stating that the Local Government Code of 1991 withdrew the exemption from real estate tax granted to MIAA under Section 21 of the MIAA Charter. Thus, MIAA negotiated with respondent City of Parañaque to pay the real estate tax imposed by the City. MIAA then paid some of the real estate tax already due. However, MIAA became delinquent and the City of Parañaque, through its City Treasurer, issued notices of levy and warrants of levy on the Airport Lands and Buildings. The Mayor of the City of Parañaque threatened to sell at public auction the Airport Lands and Buildings should MIAA fail to pay the real estate tax delinquency. MIAA thus sought a clarification of OGCC Opinion No. 061. OGCC issued Opinion No. 147 clarifying OGCC Opinion No. 061. The OGCC pointed out that Section 206 of the Local

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

Government Code requires persons exempt from real estate tax to show proof of exemption. The OGCC opined that Section 21 of the MIAA Charter is the proof that MIAA is exempt from real estate tax. MIAA filed with the Court of Appeals an original petition for prohibition and injunction, with prayer for preliminary injunction or temporary restraining order. The petition sought to restrain the City of Parañaque from imposing real estate tax on, levying against, and auctioning for public sale the Airport Lands and Buildings. CA dismissed the petition. Issue: WON the Airport Lands and Buildings of MIAA are exempt from real estate tax under existing laws? Held: YES. We rule that MIAA’s Airport Lands and Buildings are exempt from real estate tax imposed by local governments. First, MIAA is not a government-owned or controlled corporation but an instrumentality of the National Government and thus exempt from local taxation. Second, the real properties of MIAA are owned by the Republic of the Philippines and thus exempt from real estate tax. There is no dispute that a government-owned or controlled corporation is not exempt from real estate tax. However, MIAA is not a government-owned or controlled corporation. A government-owned or controlled corporation must be "organized as a stock or non-stock corporation." MIAA is not organized as a stock or non-stock corporation. MIAA is not a stock corporation because it has no capital stock divided into shares. MIAA has no stockholders or voting shares. Under its Charter, MIAA does not have capital stock that is divided into shares. MIAA is also not a non-stock corporation because it has no members. Section 87 of the Corporation Code defines a nonstock corporation as "one where no part of its income is distributable as dividends to its members, trustees or officers." A non-stock corporation must have members. Even if we assume that the Government is considered as the sole member of MIAA, this will not make MIAA a non-stock corporation. Non-stock corporations cannot distribute any part of their income to their members. Section 11 of the MIAA Charter mandates MIAA to remit 20% of its annual gross operating income to the National Treasury. This prevents MIAA from qualifying as a non-stock corporation. Since MIAA is neither a stock nor a non-stock corporation, MIAA does not qualify as a government-owned or controlled corporation. What then is the legal status of MIAA within the National Government? MIAA is a government instrumentality vested with corporate powers to perform efficiently its governmental functions. MIAA is like any other government instrumentality, the only difference is that MIAA is vested with corporate powers. Section 2(10) of the Introductory Provisions of the Administrative Code defines a government "instrumentality" as follows: SEC. 2. General Terms Defined. (10) Instrumentality refers to any agency of the National Government, not integrated within the department framework, vested with special functions or jurisdiction by law, endowed with some if not all corporate powers, administering special funds, and enjoying operational autonomy, usually through a charter.

When the law vests in a government instrumentality corporate powers, the instrumentality does not become a corporation. Unless the government instrumentality is organized as a stock or non-stock corporation, it remains a government

TRUTH. HONOR. EXCELLENCE.

64

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

instrumentality exercising not only governmental but also corporate powers. Thus, MIAA exercises the governmental powers of eminent domain, police authority and the levying of fees and charges. At the same time, MIAA exercises "all the powers of a corporation under the Corporation Law, insofar as these powers are not inconsistent with the provisions of this Executive Order." Likewise, when the law makes a government instrumentality operationally autonomous, the instrumentality remains part of the National Government machinery although not integrated with the department framework. The MIAA Charter expressly states that transforming MIAA into a "separate and autonomous body" will make its operation more "financially viable." A government instrumentality like MIAA falls under Section 133(o) of the Local Government Code, which states: “SEC. 133. Common Limitations on the Taxing Powers of Local Government Units. Unless otherwise provided herein, the exercise of the taxing powers of provinces, cities, municipalities, and barangays shall not extend to the levy of the following: (o) Taxes, fees or charges of any kind on the National Government, its agencies and instrumentalities and local government units.” Section 133(o) recognizes the basic principle that local governments cannot tax the national government, which historically merely delegated to local governments the power to tax. While the 1987 Constitution now includes taxation as one of the powers of local governments, local governments may only exercise such power "subject to such guidelines and limitations as the Congress may provide." When local governments invoke the power to tax on national government instrumentalities, such power is construed strictly against local governments. The rule is that a tax is never presumed and there must be clear language in the law imposing the tax. Any doubt whether a person, article or activity is taxable is resolved against taxation. This rule applies with greater force when local governments seek to tax national government instrumentalities. Another rule is that a tax exemption is strictly construed against the taxpayer claiming the exemption. However, when Congress grants an exemption to a national government instrumentality from local taxation, such exemption is construed liberally in favor of the national government instrumentality. There is, moreover, no point in national and local governments taxing each other, unless a sound and compelling policy requires such transfer of public funds from one government pocket to another. There is also no reason for local governments to tax national government instrumentalities for rendering essential public services to inhabitants of local governments. The only exception is when the legislature clearly intended to tax government instrumentalities for the delivery of essential public services for sound and compelling policy considerations. There must be express language in the law empowering local governments to tax national government instrumentalities. Any doubt whether such power exists is resolved against local governments.

FR. JOAQUIN BERNAS, S.J.

DIGITAL V. PANGASINAN Section 137 of the Local Government Code, in principle, withdrew any exemption from the payment of a tax on businesses enjoying a franchise. Expressly, it authorized local governments to impose a franchise tax on businesses enjoying a franchise within its territorial jurisdiction. Section 232 likewise authorizes the imposition of an ad valorem tax on real property by the local government of a province, city or municipality within the Metropolitan Manila Area wherein the land, building, machinery and other improvement not thereinafter specifically exempted. Petitioner DIGITEL was granted, under Provincial Ordinance No. 18-92, a provincial franchise to install, maintain and operate a telecommunications system within the territorial jurisdiction of respondent Province of Pangasinan. Under the said provincial franchise, the grantee is required to pay franchise and real property taxes. Pursuant to the mandate of Sections 137 and 232 of the Local Government Code, the Sangguniang Panlalawigan of respondent Province of Pangasinan enacted Provincial Tax Ordinance No. 1, entitled "The Real Property Tax Ordinance of 1992." Section 4 thereof imposed a real property tax on real properties located within the territorial jurisdiction of the province. The particular provision, however, technically expanded the application of Sec. 6 of the provincial franchise of petitioner DIGITEL to include machineries and other improvements, not thereinafter exempted. Thereafter, Provincial Tax Ordinance No. 4, otherwise known as "The Pangasinan Franchising Ordinance of 1993," was similarly ratified. Sections 4, 5 and 6 thereof, positively imposed a franchise tax on businesses enjoying a franchise within the territorial jurisdiction of respondent Province of Pangasinan. Petitioner DIGITEL was then granted by RA7678, a legislative franchise authorizing the grantee to install, operate and maintain telecommunications systems, this time, throughout the Philippines. Under its legislative franchise, particularly Sec. 5 thereof, petitioner DIGITEL became liable for the payment of a franchise tax "as may be prescribed by law of all gross receipts of the telephone or other telecommunications businesses transacted under it by the grantee,"8 as well as real property tax "on its real estate, and buildings "exclusive of this franchise." Later, Pangasinan, in its examination of its record found that petitioner DIGITEL had a franchise tax deficiency. In the interregnum, Congress passed RA7925, otherwise known as "The Public Telecommunications Policy Act of the Philippines." Section 23 of this law entitled Equality of Treatment in the Telecommunications Industry, provided for the ipso facto application to any previously granted telecommunications franchises of any advantage, favor, privilege, exemption or immunity granted under existing franchises, or those still to be granted, to be accorded immediately and unconditionally to earlier grantees. Issue: WON DIGITEL’s real properties found within the territorial jurisdiction of respondent Province of Pangasinan are exempt from the payment of real property taxes by virtue of the phrase "exclusive of this franchise" found in Section 5 of its legislative franchise?

JEN LAYGO 4D 2007

TRUTH. HONOR. EXCELLENCE.

65

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

Held: YES. However, it is with the caveat that such exemption solely applies to those real properties actually, directly and exclusively used by the grantee in its franchise. The present issue actually boils down to a dispute between the inherent taxing power of Congress and the delegated authority to tax of the local government borne by the 1987 Constitution. We already sustained the power of Congress to grant exemptions over and above the power of the local government s delegated taxing authority notwithstanding the source of such power. Indeed, the grant of taxing powers to local government units under the Constitution and the LGC does not affect the power of Congress to grant exemptions to certain persons, pursuant to a declared national policy. The legal effect of the constitutional grant to local governments simply means that in interpreting statutory provisions on municipal taxing powers, doubts must be resolved in favor of municipal corporations. Succinctly put, had the Congress of the Philippines intended to tax each and every real property of petitioner DIGITEL, regardless of whether or not it is used in the business or operation of its franchise, it would not have incorporated a qualifying phrase, which such manifestation admittedly is. And, to our minds, "the issue in this case no longer dwells on whether Congress has the power to exempt" petitioner DIGITEL’s properties from realty taxes by its enactment of RA7678 which contains the phrase "exclusive of this franchise," in the face of the mandate of the Local Government Code. The more pertinent issue to consider is whether or not, by passing RA7678, Congress intended to exempt petitioner DIGITEL’s real properties actually, directly and exclusively used by the grantee in its franchise. The fact that Republic Act No. 7678 was a later piece of legislation can be taken to mean that Congress, knowing fully well that the Local Government Code had already withdrawn exemptions from real property taxes, chose to restore such immunity even to a limited degree. In view of the unequivocal intent of Congress to exempt from real property tax those real properties actually, directly and exclusively used by petitioner DIGITEL in the pursuit of its franchise, respondent Province of Pangasinan can only levy real property tax on the remaining real properties of the grantee located within its territorial jurisdiction not part of the abovestated classification. Said exemption, however, merely applies from the time of the effectivity of petitioner DIGITEL’s legislative franchise and not a moment sooner. 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. Doctrine Q. After serving a full third year term, Alegre was declared to have been invalidly elected to his third term. Should that term be counted for purposes of the three term limit?

JEN LAYGO 4D 2007

A.

FR. JOAQUIN BERNAS, S.J.

Yes. The decision declaring him not elected is of no practical consequence because he has already served. Ong v. Alegre, G.R. No. 163295, January 23, 2006.

The fact that a person served as Mayor for a whole term even if he had been declared not elected, such fact does not interrupt that running of three consecutive terms, as in Ong v. Alegre. Rivera III v. Morales, GR 167591, May 9, 2007. ONG V. ALEGRE In the May 1998 elections, Alegre and Ong opposed each other, with the latter being subsequently proclaimed by COMELEC winner in that contest. Alegre subsequently filed an election protest. RTC declared Alegre as the duly elected mayor in that 1998 mayoralty contest, albeit the decision came out only on July 4, 2001, when Ong had fully served the 1998-2001 mayoralty term and was in fact already starting to serve the 2001-2004 term as mayor-elect of the municipality of San Vicente. Now, private respondent Alegre and petitioner Ong were once again candidates for mayor of San Vicente, Camarines Norte in the 2004 elections. Alegre filed with the COMELEC Provincial Office a Petition to Disqualify, Deny Due Course and Cancel Certificate of Candidacy of Ong. The petition to disqualify was predicated on the three-consecutive term rule, Ong having, according to Alegre, ran in the May 1995, May 1998, and May 2001 mayoralty elections and have assumed office as mayor and discharged the duties thereof for 3 consecutive full terms corresponding to those elections. Comelec denied the petition. Undaunted, Alegre filed a timely motion for reconsideration. COMELEC en banc issued a resolution reversing and thereby (a) declaring Ong "as disqualified to run for mayor of San Vicente, Camarines Norte in the 2004 elections"; (b) ordering the deletion of Ong’s name from the official list of candidates; and (c) directing the concerned board of election inspectors not to count the votes cast in his favor. Issue: WON petitioner Francis Ong’s assumption of office as Mayor of San Vicente, Camarines Norte for the mayoralty term 1998 to 2001 should be considered as full service for the purpose of the three-term limit rule. Held: YES, he is thus barred from running again as he falls under the three-term limit rule. For the three-term limit for elective local government officials to apply, two conditions or requisites must concur, to wit: (1) that the official concerned has been elected for three (3) consecutive terms in the same local government post, and (2) that he has fully served three (3) consecutive terms. With the view we take of the case, the disqualifying requisites are present herein, thus effectively barring petitioner Francis from running for mayor of San Vicente, Camarines Norte in the May 10, 2004 elections. There can be no dispute about petitioner Francis Ong having been duly elected mayor of that municipality in the May 1995 and again in the May 2001 elections and serving the July 1, 1995- June 30, 1998 and the July 1, 2001-June 30, 2004 terms in full. The herein controversy revolves around the 1998-2001 mayoral term, albeit there can also be no quibbling that Francis ran for mayor of the same municipality in the May 1998 elections and actually served the

TRUTH. HONOR. EXCELLENCE.

66

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

1998-2001 mayoral term by virtue of a proclamation initially declaring him mayor-elect of the municipality of San Vicente. The question that begs to be addressed, therefore, is whether or not Francis Ong’s assumption of office as Mayor of San Vicente, Camarines Norte from July 1, 1998 to June 30, 2001, may be considered as one full term service in the context of the consecutive three-term limit rule. We hold that such assumption of office constitutes, for Francis, "service for the full term", and should be counted as a full term served in contemplation of the three-term limit prescribed by the constitutional and statutory provisions, supra, barring local elective officials from being elected and serving for more than three consecutive term for the same position. It is true that the RTC-Daet, Camarines Norte ruled in Election Protest Case No. 6850,17 that it was Francis Ong’s opponent (Alegre) who "won" in the 1998 mayoralty race and, therefore, was the legally elected mayor of San Vicente. However, that disposition, it must be stressed, was without practical and legal use and value, having been promulgated after the term of the contested office has expired. Petitioner Francis contention that he was only a presumptive winner in the 1998 mayoralty derby as his proclamation was under protest did not make him less than a duly elected mayor. His proclamation by the Municipal Board of Canvassers of San Vicente as the duly elected mayor in the 1998 mayoralty election coupled by his assumption of office and his continuous exercise of the functions thereof from start to finish of the term, should legally be taken as service for a full term in contemplation of the three-term rule. The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary view would mean that Alegre would under the three-term rule - be considered as having served a term by virtue of a veritably meaningless electoral protest ruling, when another actually served such term pursuant to a proclamation made in due course after an election.

RIVERA III V. MORALES In the May 2004 Synchronized National and Local Elections, respondent Marino "Boking" Morales ran as candidate for mayor of Mabalacat, Pampanga for the term commencing July 1, 2004 to June 30, 2007. Prior thereto or on January 5, 2004, he filed his Certificate of Candidacy. On January 10, 2004, Attys. Venancio Q. Rivera and Normandick De Guzman, petitioners, filed with the Second Division of the Commission on Elections (COMELEC) a petition to cancel respondent Morales’ Certificate of Candidacy on the ground that he was elected and had served three previous consecutive terms as mayor of Mabalacat. In his answer to the petition, respondent Morales admitted that he was elected mayor of Mabalacat for the term commencing July 1, 1995 to June 30, 1998 (first term) and July 1, 2001 to June 30, 2004 (third term), but he served the second term from July 1, 1998 to June 30, 2001 only as a "caretaker of the office" or as a "de facto officer" because of the following reasons: (a) He was not validly elected for the second term 1998 to 2001 since his proclamation as mayor was declared void by the Regional Trial Court (RTC), Branch 57, Angeles City in its Decision dated April 2, 2001 in Election Protest Case (EPC) No. 98-131. The Decision became final and executory on August 6,

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

2001; and (b) He was preventively suspended by the Ombudsman in an anti-graft case from January 16, 1999 to July 15, 1999. COMELEC Second Division rendered its Resolution finding respondent Morales disqualified to run for the position of municipal mayor on the ground that he had already served 3 consecutive terms. Accordingly, his Certificate of Candidacy was cancelled. On May 24, 2004, after respondent Morales was proclaimed the duly elected mayor of Mabalacat for the term commencing July 1, 2004 to June 30, 2007, petitioner Anthony Dee, also a candidate for mayor, filed with the RTC a petition for quo warranto against the said respondent. Petitioner alleged that respondent Morales, having served as mayor for three consecutive terms, is ineligible to run for another term or fourth term. In his answer, respondent Morales raised the following defenses: (a) He was not validly elected for the term 1998 to 2001 since the RTC, Branch 57, Angeles City declared in its Decision that his proclamation as mayor of Mabalacat was void. Petitioner Dee was then proclaimed the duly elected mayor; and (b) He was preventively suspended for six months by the Ombudsman, during the same term in an anti-graft case, an interruption in the continuity of his service as municipal mayor of Mabalacat. In its Decision RTC dismissed petitioner Dee’s petition for quo warranto on the ground that respondent Morales did not serve the three-term limit since he was not the duly elected mayor of Mabalacat, but petitioner Dee in the May 1998 elections for the term 1998 to 2001. It is undisputed that respondent Morales was elected to the position of mayor of Mabalacat for the following consecutive terms: a) July 1, 1995 to June 30, 1998 b) July 1, 1998 to June 30, 2001 c) July 1, 2001 to June 30, 2004 d) July 1, 2004 to June 30, 2007 Issue: WON the Morales’ 2nd term from 1998 to 2001 may be considered as fully served? Held: YES. Here, respondent Morales was elected for the term July 1, 1998 to June 30, 2001. He assumed the position. He served as mayor until June 30, 2001. He was mayor for the entire period notwithstanding the Decision of the RTC in the electoral protest case filed by petitioner Dee ousting him (respondent) as mayor. To reiterate, as held in Ong v. Alegre, such circumstance does not constitute an interruption in serving the full term. Section 8, Article X of the Constitution can not be more clear and explicit: “The term of the office of elected local officials x x x, shall be three years and no such official shall serve for more than three consecutive terms.” Upon the other hand, Section 43 (b) of R.A. No. 7160 (the Local Government Code) clearly provides: “No local official shall serve for more than three consecutive terms in the same position.” Respondent Morales is now serving his fourth term. He has been mayor of Mabalacat continuously without any break since July 1, 1995. In just over a month, by June 30, 2007, he will have been mayor of Mabalacat for 12 continuous years.

TRUTH. HONOR. EXCELLENCE.

67

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

Respondent Morales maintains that he served his second term (1998 to 2001) only as a "caretaker of the office" or as a "de facto officer." Section 8, Article X of the Constitution is violated and its purpose defeated when an official serves in the same position for three consecutive terms. Whether as "caretaker" or "de facto" officer, he exercises the powers and enjoys the prerequisites of the office which enables him "to stay on indefinitely". Respondent Morales should be promptly ousted from the position of mayor of Mabalacat.  ARTICLE XI - ACCOUNTABILITY OF PUBLIC OFFICERS Section 6. The officials and employees of the Office of the Ombudsman, other than the Deputies, shall be appointed by the Ombudsman, according to the Civil Service Law. Doctrine Under the Constitution, the Office of the Ombudsman is an independent body. As a guaranty of this independence, the Ombudsman has the power to appoint all officials and employees of the Office of the Ombudsman, except his deputies. This power necessarily includes the power of setting, prescribing and administering the standards for the officials and personnel of the Office. To further ensure its independence, the Ombudsman has been vested with the power of administrative control and supervision of the Office. This includes the authority to organize such directorates for administration and allied services as may be necessary for the effective discharge of the functions of the Office, as well as to prescribe and approve its position structure and staffing pattern. Necessarily, it also includes the authority to determine and establish the qualifications, duties, functions and responsibilities of the various directorates and allied services of the Office. This must be so if the constitutional intent to establish an independent Office of the Ombudsman is to remain meaningful and significant. The Civil Service Commission has no power over this. Ombudsman v. CSC, G.R. No. 162215, July 30, 1007. OMBUDSMAN V. CSC This controversy traces its roots to Ombudsman Simeon V. Marcelo’s lette to the Civil Service Commission (CSC) requesting the approval of the amendment of qualification standards for Director II positions in the Central Administrative Service and Finance and Management Service of the Office of the Ombudsman. Acting thereon, the CSC issued Opinion No. 44, s. 2004, disapproving the request. The Office of the Ombudsman, claiming that its constitutional and statutory powers were unduly curtailed, now seeks to set aside and nullify CSC Opinion No. 44, s. 2004 via this petition for certiorari. The Office of the Ombudsman asserts that its specific, exclusive and discretionary constitutional and statutory power as an independent constitutional body to administer and supervise its own officials and personnel, including the authority to administer competitive examinations and prescribe reasonable qualification standards for its own officials, cannot be curtailed by the general

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

power of the CSC to administer the civil service system. Any unwarranted and unreasonable restriction on its discretionary authority, such as what the CSC did when it issued Opinion No. 44, s. 2004, is constitutionally and legally infirm. Issue: WON the Ombudsman may provide the qualifications for its own personnel, independent from the CSC? Held: YES. The CSC’s opinion that the Director II positions in the Central Administrative Service and the Finance and Management Service of the Office of the Ombudsman are covered by the CES is wrong. The CES covers presidential appointees only. Under the Constitution, the Ombudsman is the appointing authority for all officials and employees of the Office of the Ombudsman, except the Deputy Ombudsmen. Thus, a person occupying the position of Director II in the Central Administrative Service or Finance and Management Service of the Office of the Ombudsman is appointed by the Ombudsman, not by the President. As such, he is neither embraced in the CES nor does he need to possess CES eligibility. To classify the positions of Director II in the Central Administrative Service and the Finance and Management Service of the Office of the Ombudsman as covered by the CES and require appointees thereto to acquire CES or CSE eligibility before acquiring security of tenure will lead to unconstitutional and unlawful consequences. It will result either in (1) vesting the appointing power for said position in the President, in violation of the Constitution or (2) including in the CES a position not held by a presidential appointee, contrary to the Administrative Code. Section 6, Article XI of the Constitution provides: “Sec. 6. The officials and employees of the Office of the Ombudsman, other than the Deputies, shall be appointed by the Ombudsman according to the Civil Service Law.” This is complemented by RA[13] 6770, otherwise known as “The Ombudsman Act of 1989.” Section 11 thereof states: “Sec. 11. Structural Organization. – The authority and responsibility for the exercise of the mandate of the Office of the Ombudsman and for the discharge of its power and functions shall be vested in the Ombudsman, who shall have supervision and control of the said Office. xxx (1) The Office of the Ombudsman may organize such directorates for administration and allied services as may be necessary for the effective discharge of its functions. xxx Those appointed as directors or heads shall have the rank and salary of line bureau directors. Xxx (5) The position structure and staffing pattern of the Office of the Ombudsman, including the Office of the Special Prosecutor, shall be approved and prescribed by the Ombudsman. The Ombudsman shall appoint all officers and employees of the Office of the Special Prosecutor, in accordance with the civil service law, rules and regulations.” Under the Constitution, the Office of the Ombudsman is an independent body. As a guaranty of this independence, the Ombudsman has the power to appoint all officials and employees of the Office of the Ombudsman, except his deputies. This power necessarily includes the power of setting, prescribing and administering the standards for the officials and personnel of the Office. To further ensure its independence, the Ombudsman has been vested with the power of administrative control and supervision of the Office. This includes the authority to organize such directorates for administration and allied services as may be

TRUTH. HONOR. EXCELLENCE.

68

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

necessary for the effective discharge of the functions of the Office, as well as to prescribe and approve its position structure and staffing pattern. Necessarily, it also includes the authority to determine and establish the qualifications, duties, functions and responsibilities of the various directorates and allied services of the Office. This must be so if the constitutional intent to establish an independent Office of the Ombudsman is to remain meaningful and significant. Qualification standards are used as guides in appointment and other personnel actions, in determining training needs and as aid in the inspection and audit of the personnel work programs. They are intimately connected to the power to appoint as well as to the power of administrative supervision. Thus, as a corollary to the Ombudsman’s appointing and supervisory powers, he possesses the authority to establish reasonable qualification standards for the personnel of the Office of the Ombudsman. Section 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof. Doctrine The jurisdiction of the Ombudsman over disciplinary cases against government employees, which includes public school teachers, is vested by no less than Section 12, Article XI of the Constitution. However, Section 9 of Rep. Act No. 4670, otherwise known as the Magna Carta for Public School Teachers, provides that it must first go to a committee appointed by the Secretary of Education. Ombudsman v. Estandarte, GR 168670, April 13, 2007. OMBUDSMAN V. ESTANDARTE People’s Graftwatch, through its Chairman, Dr. Patricio Y. Tan, referred to the Office of the Ombudsman, for immediate investigation, a complaint of the Faculty Club and Department Heads of the Ramon Torres National High School against Heidi Estandarte, the school principal. The complaint consisted of 33 allegations of improprieties ranging from illegal handling of school funds, irregular financial transactions, perjury, and abuse of authority. However, the complaint was not subscribed and sworn to by the complainant, and not supported by the sworn statements of witnesses. The complaint also lacked a statement of non-forum shopping as required. The Ombudsman forwarded the complaint to the DECS and the Commission on Audit (COA) for appropriate action pursuant to Section 15(2) of Republic Act No. 6770, otherwise known as the Ombudsman Act of 1989. DECS-Region VI found that the complaint did not comply with the formalities under EO292, otherwise known as The Administrative Code of 1987. Thus, it dismissed the complaint, without prejudice to the filing of an appropriate one. Undaunted, the Faculty Club filed a formal complaint, sworn and subscribed to by the complainants, with DECS-Region VI. However, in a letter, the said office dismissed the complaint

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

outright for lack of verification and certification against forum shopping. DECS-Region VI received the requisite verification and certification. This case was entitled "Faculty and Department Heads of the Ramon Torres National High School, Bago City v. Heidi Estandarte." (After so many procedural matters), the CA held that the Ombudsman (Visayas) acted without or in excess of jurisdiction when it took over the case after it issued a memorandum considering the case closed and terminated and after jurisdiction had already been vested in the Special Investigating Committee. Such act violates the doctrine of primary jurisdiction. Once jurisdiction is acquired by or attached to a proper investigative body or agency, such jurisdiction continues until the termination of the case. Citing Fabella v. Court of Appeals and Emin v. de Leon, the CA held that Rep. Act No. 4670 specifically covers and governs administrative proceedings involving public school teachers, and jurisdiction over such cases is originally and exclusively lodged with the Investigating Committee created pursuant to Section 9 of Rep. Act No. 4670. The appellate court further held that, assuming the Ombudsman (Visayas) has jurisdiction, the assailed decision and order would have to be set aside because Estandarte was denied her right to substantive and procedural due process. It pointed out that she was denied the right to a formal investigation and the opportunity to be heard. Following the Court’s ruling in Tapiador v. Office of the Ombudsman, the CA held that the Ombudsman (Visayas) has no authority to directly impose the penalty of dismissal on those who are the subject of its investigation because its power is merely recommendatory. Issue: WON Ombudsman had jurisdiction? Held: YES, but even if we hold that the Ombudsman (Visayas) had concurrent jurisdiction over the administrative case, we would still sustain the DECS’ authority to decide the administrative case. The Magna Carta for Public School Teachers, provides that it must first go to a committee appointed by the Secretary of Education The jurisdiction of the Ombudsman over disciplinary cases against government employees, which includes public school teachers, is vested by no less than Section 12, Article XI of the Constitution which states: “Sec. 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof.” In a case of recent vintage, the Court held that the Ombudsman has full administrative disciplinary authority over public officials and employees of the government, thus: “All these provisions in Republic Act No. 6770 taken together reveal the manifest intent of the lawmakers to bestow on the Office of the Ombudsman full administrative disciplinary authority. These provisions cover the entire gamut of administrative adjudication which entails the authority to, inter alia, receive complaints, conduct investigations, hold hearings in accordance with its rules of procedure, summon witnesses and require the production of documents, place under preventive suspension public officers and employees pending an investigation, determine the

TRUTH. HONOR. EXCELLENCE.

69

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

appropriate penalty imposable on erring public officers or employees as warranted by the evidence, and necessarily, impose the said penalty.” However, Section 9 of Rep. Act No. 4670, otherwise known as the Magna Carta for Public School Teachers, provides that: “Section 9. Administrative Charges. Administrative charges against a teacher shall be heard initially by a committee composed of the corresponding School Superintendent of the Division or a duly authorized representative who would at least have the rank of a division supervisor, where the teacher belongs, as chairman, a representative of the local or, in its absence, any existing provincial or national teacher’s organization and a supervisor of the Division, the last two to be designated by the Director of Public Schools. The committee shall submit its findings, and recommendations to the Director of Public Schools within thirty days from the termination of the hearings: Provided, however, That, where the school superintendent is the complainant or an interested party, all the members of the committee shall be appointed by the Secretary of Education.” Republic Act No. 6770, the Ombudsman Act of 1989, provides that the Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries except over officials who may be removed by impeachment or over Members of Congress, and the Judiciary. However, in Fabella v. Court of Appeals, it was held that R.A. No. 4670, the Magna Carta for Public School Teachers, specifically covers and governs administrative proceedings involving public school teachers. Undoubtedly, the DECS-Region VI first assumed jurisdiction over the administrative complaint against the respondent. It should be recalled that when People’s Graftwatch forwarded the complaint to the Ombudsman (Visayas), the latter treated it as a request for assistance and referred it to the DECS-Region VI and COA for appropriate action. After it had resolved to upgrade the matter to an administrative case, the Ombudsman decided not to take cognizance of the same and refer it, instead, to the DECS-Region VI pursuant to Section 23(2) of R.A. 6770. We do not agree with petitioner’s contention that it could assume jurisdiction over the administrative case after the DECS-Region VI had voluntarily relinquished its jurisdiction over the same in favor of the petitioner. Jurisdiction is a matter of law. Jurisdiction once acquired is not lost upon the instance of the parties but continues until the case is terminated. When the complainants filed their formal complaint with the DECS-Region VI, jurisdiction was vested on the latter. It cannot now be transferred to petitioner upon the instance of the complainants, even with the acquiescence of the DECS and petitioner. Considering that the respondent is a public school teacher who is covered by the provisions of Rep. Act No. 4670, the Magna Carta for Public School Teachers, the DECS-Region VI is in a better position to decide the matter. Moreover, the DECS has already commenced proceedings over the administrative case by constituting the Special Investigating Committee pursuant to Section 9 of Rep. Act No. 4670.

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties: (1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. (2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties. (3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. (4) Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action. (5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents. (6) Publicize matters covered by its investigation when circumstances so warrant and with due prudence. (7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency. (8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law. Doctrine Q. What is the scope of the investigatory power of the Ombudsman? A. Based on Secton 13, the Office of the Ombudsman exercises jurisdiction over public officials/ employees of GOCCs with original charters. This being so, it can only investigate and prosecute acts or omissions of the officials/employees of government corporations. Therefore, although the government later on acquired the controlling interest in PAL, the fact remains that the latter did not have an “original charter” and its officers/employees could not be investigated and/or prosecuted by the Ombudsman. Khan, Jr v Ombudsman, G.R. No. 125296, July 20. 2006. We see no reason to deviate from these rulings. They are consistent with our earlier observation that unlike the “classical Ombudsman model” whose function is merely to “receive and process the people’s complaints against corrupt and abusive government personnel,” the Philippine Ombudsman — as protector of the people, is armed with the power to prosecute erring public officers and employees, giving him an active role in the enforcement of laws on anti-graft and corrupt practices and

TRUTH. HONOR. EXCELLENCE.

70

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

such other offenses that may be committed by such officers and employees. The legislature has vested him with broad powers to enable him to implement his own actions. Ombudsman v. CA, G.R. No. 167844, November 22, 2006. The finding of the Court of Appeals in CA-G.R. SP No. 83356 that there is sufficient evidence of respondent Farida T. Lucero’s guilt for dishonesty is AFFIRMED. However, the appellate court’s declaration that the Ombudsman has no power to order her removal or dismissal from office is SET ASIDE. Consequently, the decision of the Ombudsman dismissing respondent Lucero is AFFIRMED. Ombudsman v. Lucero, G.R. No. 168718, November 24, 2006. Q. Does the Ombudsman have the power to impose the penalty of suspension? A. Yes. The enumeration of the powers of the Ombudsman in the Constitution is not exclusive. Congress may add additional powers. In conjunction therewith, Section 19 of Republic Act No. 6770 grants to the Ombudsman fuller authority. Ombudsman v. CA, G.R. No. 160675, June 16, 2006. Q. May the Special Prosecutor file an information without authority from the Ombudsman? A. No. Republic Act No. 6770, by conferring upon the Ombudsman the power to prosecute, likewise grants to the Ombudsman the power to authorize the filing of informations. A delegated authority to prosecute was also given to the Deputy Ombudsman, but no such delegation exists to the Special Prosecutor. Nor is there an implied delegation. The doctrine of qualified political agency governing the relation between department secretaries and the President does not apply to the relation between the Ombudsman and the Special Prosecutor. The Special Prosecutor prosecutes only when authorized by the Ombudsman. Perez v. Sandigabayan, G.R. No. 166062, September 26, 2006. The powers of the Ombudsman are found in Article XI of the 1987 Constitution, which states in part that the Ombudsman shall “exercise such other powers or performs such functions or duties as may be provided by law.” This refers to Sections 15, 21, and 25 of Republic Act No. 6770 (RA 6770), otherwise known as the Ombudsman Act of 1989. While Section 15(3) of RA 6770 states that the Ombudsman has the power to “recommend x x x removal, suspension, demotion x x x” of government officials and employees, the same Section 15(3) also states that the Ombudsman in the alternative may “enforce its disciplinary authority as provided in Section 21” of RA 6770. The word “or” in Section 15(3) before the phrase “enforce its disciplinary authority as provided in Section 21” grants the Ombudsman this alternative power. Section 21 of RA 6770 vests in the Ombudsman “disciplinary authority over all elective and appointive officials of the Government,” except impeachable officers, members of Congress, and the Judiciary. And under Section 25 of RA 6770, the Ombudsman may impose in administrative proceedings the “penalty ranging from suspension without pay for one year to dismissal with forfeiture of benefits or a fine ranging from five thousand pesos (P5,000.00) to twice the amount malversed, illegally taken or lost, or both at the discretion of the Ombudsman x x x.”

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

Clearly, under RA 6770 the Ombudsman has the power to impose directly administrative penalty on public officials or employees. Hence, the Court of Appeals erred in ruling that petitioner has no power to impose directly administrative penalties on public officials or employees. Ombudsman v. CA, G.R. No. 168079, July 17, 2007. NOTE: But according to Local Government Code, elective officials may be dismissed only by the proper court. Ombudsman has rule making power. The finality and execution of decisions of the Ombudsman are governed by Rules the Ombudsman is authorized to promulgate. Buencamino v. CA, GR 175895,April 4, 2007. KHAN, JR V OMBUDSMAN Private respondents Rosauro Torralba and Celestino Bandala charged petitioners before the Deputy Ombudsman (Visayas) for violation of RA 3019. In their complaint, private respondents accused petitioners of using their positions in PAL to secure a contract for Synergy Services Corporation, a corporation engaged in hauling and janitorial services in which they were shareholders. Petitioners filed an omnibus motion to dismiss the complaint on the following grounds: (1) the Ombudsman had no jurisdiction over them since PAL was a private entity and (2) they were not public officers, hence, outside the application of RA 3019. Issue: WON Ombudsman has jurisdiction? Held: NO. Based on Article XI Section 13(2) of the Constitution, the Office of the Ombudsman exercises jurisdiction over public officials/ employees of GOCCs with original charters. This being so, it can only investigate and prosecute acts or omissions of the officials/employees of government corporations. Therefore, although the government later on acquired the controlling interest in PAL, the fact remains that the latter did not have an "original charter" and its officers/employees could not be investigated and/or prosecuted by the Ombudsman. OMBUDSMAN V. CA Respondent Santos belonged to the clerical staff of the Director of LTFRB Region VII, Mandaue City, Cebu. In November 1998, respondent was designated as concurrent acting “Special Collection/Disbursing Officer.” COA audited respondent’s cash and accounts. After inspecting respondent’s records, the COA’s examining auditors noted a shortage of P34k in respondent’s accounts. Although respondent acknowledged the shortage, she failed to explain the same. Respondent remitted the missing amount. COA required respondent to explain the discrepancy. Instead of explaining, respondent merely confirmed the cash shortage. COA charged respondent in the Office of the Ombudsman, Visayas (“Ombudsman Visayas”) with Dishonesty. In her counter-affidavit, respondent claimed that the missing funds comprised her collections for 11 June 1999. Respondent stated that during the auditing on 21 June 1999, she kept the collections, which allegedly included two fake P500 bills, in her vault. Respondent explained, for the first time, that she did not turn over the collections to the COA auditors because of the

TRUTH. HONOR. EXCELLENCE.

71

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

fake bills. Respondent added that had the COA auditors asked, she would have produced the funds. In its Decision dated 28 October 2002, the Ombudsman Visayas found respondent guilty as charged and dismissed her from service. In its Decision dated 31 January 2005, the Court of Appeals, while finding respondent liable for “malversation of funds,” lowered respondent’s administrative offense to Neglect of Duty due to attendant “mitigating circumstances.” Further, the Court of Appeals sustained respondent’s contention on the Ombudsman’s powers and held that the latter’s “jurisdiction and authority in administrative cases is only recommendatory.” Thus, the Court of Appeals “recommended” to the LTFRB respondent’s suspension from service for six months. Issue: WON the Ombudsman had authority to directly impose a penalty in the admin case? Held: YES. Giving a literal interpretation to the word “recommend” in the provisions concerning the functions of the Ombudsman, the Court of Appeals concluded that petitioner could do no more. This is error. In Ledesma v. Court of Appeals, we rejected such interpretation as unduly restrictive and not “consistent with the wisdom and spirit behind the creation of the Office of the Ombudsman.” Instead, we held that “[b]y stating x x x that the Ombudsman ‘recommends’ the action to be taken against an erring officer or employee, the provisions in the Constitution and in RA 6770 intended [only] that the implementation of the order be coursed through the proper officer.”

FR. JOAQUIN BERNAS, S.J.

Held: YES. We agree with the ratiocination of public respondents. Several reasons militate against a literal interpretation of the subject constitutional provision. Firstly, a cursory reading of Tapiador reveals that the main point of the case was the failure of the complainant therein to present substantial evidence to prove the charges of the administrative case. The statement that made reference to the power of the Ombudsman is, at best, merely an obiter dictum and, as it is unsupported by sufficient explanation, is susceptible to varying interpretations, as what precisely is before us in this case. Hence, it cannot be cited as a doctrinal declaration of this Court nor is it safe from judicial examination. The issue raised in this Court has already been resolved in Office of the Ombudsman v. Court of Appeals. In that case, the Court declared that in the exercise of its administrative disciplinary authority under Section 12, Article XI of the 1987 Constitution and RA6770, the Office of the Ombudsman is empowered not merely to recommend, but to impose the penalty of removal, suspension, demotion, fine, censure, or prosecution of a public officer or employee found to be at fault. The legislative history of RA6770 bears out the conclusion that the Office of the Ombudsman was intended to possess full administrative disciplinary authority, including the power to impose penalty of removal, suspension, demotion, fine, censure, or prosecution of a public officer or employee. The lawmakers envisioned the Office of the Ombudsman to be “an activist watchman,” not merely a passive one. OMBUDSMAN V. CA

In our recent ruling in Office of the Ombudsman v. Court of Appeals, we reiterated Ledesma and expounded that taken together, the relevant provisions of RA 6770 vested petitioner with “full administrative disciplinary authority” including the power to “determine the appropriate penalty imposable on erring public officers or employees as warranted by the evidence, and, necessarily, impose the said penalty.”

Joan and Thomas Corominas, and Maria Constancia Corominas-Lim filed with the Office of the Ombudsman a criminal complaint for violation of Article 281 (Other Forms of Trespass) of the Revised Penal Code against herein Arregadas, et al, all employees of the DENR. The same criminal complaint was also treated by the Office of the Ombudsman as an administrative complaint for abuse of authority and misconduct.

OMBUDSMAN V. LUCERO

It was alleged that the above-named DENR employees conspired to enter the parcel of land owned by the Corominas family without seeking permission from the latter or their representative and despite the big "NO TRESPASSING" sign attached to the perimeter fences enclosing the said property.

Petitioner Farida T. Lucero was appointed as Clerk II of the Land Transportation Office, Regional Office No. VII, and was assigned at the Chief Finance Division in order to augment the personnel complement thereat. In a Memorandum which was issued by Regional Director Isabelo K. Apor, she was likewise directed to assist the Regional Cashier in collecting and receiving miscellaneous fees/revenues. Then OIC-Regional Director Porferio I. Mendoza of the LTO, Regional Office No. VII, Cebu City requested COA to conduct an audit in the Cash Section of the Operations Division of their office in order to determine the extent of malversation of funds just discovered covering the period from November 18, 1999 up to September 30, 2000. An audit was conducted, revealing Petitioner to have issued sixty-nine (69) altered miscellaneous receipts. Thereafter, an administrative case for dishonesty was filed against the Petitioner in the Office of the Ombudsman (Visayas). On July 20, 2003, the Office of the Ombudsman (Visayas) rendered its Decision finding the Petitioner guilty of dishonesty. Issue: WON Ombudsman has authority?

JEN LAYGO 4D 2007

By way of refutation, respondents alleged that they entered the Corominas landholding pursuant to the Order of the RTC of Cebu City, involving a complaint for annulment and cancellation of title. Office of the Ombudsman dismissed the criminal complaint for lack of probable cause. However, in the administrative case, the Office of the Ombudsman rendered the Decision finding that, except for Arregadas, the other named DENR employees are guilty of simple misconduct and imposed on them the penalty of suspension for one month. Issue: WON Ombudsman had authority? Held: In Acop v. Office of the Ombudsman, the Court recognized that the foregoing enumeration is not exclusive and that the framers of the Constitution had given Congress the leeway to prescribe, by subsequent legislation, additional powers to the Ombudsman. Congress thus enacted Republic Act No. 6770 to provide for the functional and structural

TRUTH. HONOR. EXCELLENCE.

72

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

organization of the Office of the Ombudsman. It substantially reiterates the constitutional provisions relating to the Office of the Ombudsman. The authority of the Ombudsman to conduct administrative investigations is beyond cavil. It is mandated by no less than Section 13(1), Article XI of the Constitution. In conjunction therewith, Section 19 of RA6770 grants to the Ombudsman the authority to act on all administrative complaints. Section 2230 thereof vests in the Office of the Ombudsman the power to investigate any serious misconduct in the office allegedly committed by officials removable by impeachment, for the purpose of filing a verified complaint for impeachment, if warranted. Such power, likewise, includes the investigation of private persons who conspire with public officers and employees. Section 2331 requires that the administrative investigations conducted by the Office of the Ombudsman shall be in accordance with its rules of procedure and consistent with due process. The Office of the Ombudsman is, however, given the option to refer certain complaints to the proper disciplinary authority for the institution of appropriate administrative proceedings against erring public officers or employees. Still in connection with their administrative disciplinary authority, the Ombudsman and his deputies are expressly given the power to preventively suspend public officials and employees facing administrative charges in accordance with Sec.24 of RA6770. Under PD807, the penalties that may be imposed by the disciplining authority in administrative disciplinary cases are removal from the service, transfer, demotion in rank, suspension for not more than one year without pay, fine in an amount not exceeding six months salary, or reprimand. Findings of facts by the Office of the Ombudsman when supported by substantial evidence are conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one month’s salary shall be final and unappealable. All these provisions in RA6770 taken together reveal the manifest intent of the lawmakers to bestow on the Office of the Ombudsman full administrative disciplinary authority. These provisions cover the entire gamut of administrative adjudication which entails the authority to, inter alia, receive complaints, conduct investigations, hold hearings in accordance with its rules of procedure, summon witnesses and require the production of documents, place under preventive suspension public officers and employees pending an investigation, determine the appropriate penalty imposable on erring public officers or employees as warranted by the evidence, and, necessarily, impose the said penalty. Clearly, the Philippine Ombudsman departs from the classical Ombudsman model whose function is merely to receive and process the people’s complaints against corrupt and abusive government personnel. The Philippine Ombudsman, as protector of the people, is armed with the power to prosecute erring public officers and employees, giving him an active role in the enforcement of laws on anti-graft and corrupt practices and such other offenses that may be committed by such officers and employees. The legislature has vested him with broad powers to enable him to implement his own actions.

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

PEREZ V. SANDIGABAYAN Office of the Deputy Ombudsman filed charges of violation of RA 3019 against petitioners, Mayor Salvador M. Perez, and Municipal Treasurer Juanita Apostol for buying a personal computer through their own canvassing. It was alleged that the acquisition clearly indicated that the public officials involved gave the supplier, unwarranted benefits, advantage or preference through manifest partiality, evident bad faith or gross inexcusable negligence by paying much more than the prevailing price for a comparable computer set in the market, and against the rules of procurement. In filing the information, the Special Prosecutor had not prior authority or approval of the Ombudsman, and such filing was in fact against the latter’s instructions. Issue: WON Special Prosecutor may file the Amended Information without authority from or the approval of the Honorable Ombudsman, and against the latter’s specific instruction? Held: NO. When one considers that by express mandate of paragraph 8, Section 13, Article XI of the Constitution, the Ombudsman may “exercise such other powers or perform functions or duties as may be provided by law,” it is indubitable then that Congress has the power to place the Office of the Special Prosecutor under the Office of the Ombudsman, as was done in the Ombudsman Act. In the same vein, Congress may remove some of the powers granted to the Tanodbayan by P.D. No. 1630 and transfer them to the Ombudsman; or grant the Office of the Special Prosecutor such other powers and functions and duties as Congress may deem fit and wise. This Congress did through the passage of R.A No. 6770. RA6770, by conferring upon the Ombudsman the power to prosecute, likewise grants to the Ombudsman the power to authorize the filing of informations. As to the Special Prosecutor, respondent People invokes the aforesaid authority of the Ombudsman in Section 15(10) to delegate his powers, and claim that there was a general delegation of the authority to approve the filing of informations in Office Order No. 03-97, series of 2003 (dated 15 September 2003), and Office Order No. 40-05, series of 2005 (dated 4 April 2005). Contrary to the contention of respondent People, the delegation of the power to authorize the filing of informations under Office Order No. 40-05 was only made to Deputy Ombudsmen, and not to the Special Prosecutor. All that was delegated to the Special Prosecutor was the discretional authority to review and modify the Deputy Ombudsmen-authorized information, but even this is subject to the condition that such modification must be “without departing from, or varying in any way, the contents of the basic Resolution, Order or Decision.” Even the title of Office Order No. 40-05 betray the contention of delegation to the Special Prosecutor: “DELEGATION OF FINAL APPROVING AUTHORITY TO THE DEPUTY OMBUDSMAN FOR LUZON, DEPUTY OMBUDSMAN FOR VISAYAS AND DEPUTY OMBUDSMAN FOR MINDANAO.” There being no express delegation of the power to prosecute, we are constrained to go back to our main query: Is there an implied delegation of the power to prosecute under Republic Act No. 6770, such that Special Prosecutors are presumed to have

TRUTH. HONOR. EXCELLENCE.

73

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

been delegated such power, in the absence of a prohibition from the Ombudsman? Springing from the power of control is the doctrine of qualified political agency, wherein the acts of a subordinate bears the implied approval of his superior, unless actually disapproved by the latter. Thus, taken with the powers of control and supervision, the acts of Department Secretaries in the performance of their duties are presumed to be the act of the President, unless and until the President alters, modifies, or nullifies the same. By arguing that “[w]hat is important is that the amended Information has not been withdrawn, and or recalled by the Honorable Ombudsman, [a] clear showing that the latter acknowledged/upheld the act of the Special Prosecutor in signing the Amended Information,” respondent People claims that the doctrine of qualified political agency should be applied as well to the relationship between the Ombudsman and the Special Prosecutor. After serious reflection, we have decided to sustain the contention of the government in this case on the broad proposition, albeit not suggested, that under the presidential type of government which we have adopted and considering the departmental organization established and continued in force by paragraph 1, section 12, Article VII, of our Constitution, all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or the law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive. While we do not underestimate the quantity of work in the hands of the Office of the Ombudsman, the same simply does not measure up to the workload of the Office of the President as to necessitate having the Special Prosecutor as an alter ego of the Ombudsman. In any case, the Office of the Ombudsman could very well make a general delegation of powers to the Special Prosecutor, if it is so desired. An examination of the office orders issued by the Ombudsman, however, reveal that there had been no such intention to make a general delegation. Indeed, a statute granting powers to an agency created by the Constitution should be liberally construed for the advancement of the purposes and objectives for which it was created. Yet, the Ombudsman would be severely hampered from exercising his power of control if we are to allow the Special Prosecutor to authorize the filing of informations in the first instance. This is because while the Ombudsman has full discretion to determine whether or not a criminal case should be filed in the Sandiganbayan, once the case has been filed with said court, it is the Sandiganbayan, and no longer the Ombudsman, which has full control of the case so much so that the informations may not be dismissed, without the approval of the said court.

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

OMBUDSMAN V. CA Respondents were charged and found guilty by the Ombdusman of neglect of duty for apparent shortages in collections. On appeal, CA affirmed but held that Ombudsman had no power to impose directly sanctions against government officials and employees who are subject of its investigation. Issue: WON Ombudsman has the power to impose directly administrative penalties on public officials or employees? Held: YES. The Court upholds the Office of the Ombudsman’s power to impose the penalty of removal, suspension, demotion, fine, censure, or prosecution of a public officer or employee found to be at fault, in the exercise of its administrative disciplinary authority. The exercise of such power is well founded in the Constitution and Republic Act No. 6770. The legislative history of RA6770 bears out the conclusion that the Office of the Ombudsman was intended to possess full administrative disciplinary authority, including the power to impose the penalty of removal, suspension, demotion, fine, censure, or prosecution of a public officer or employee found to be at fault. The lawmakers envisioned the Office of the Ombudsman to be “an activist watchman,” not merely a passive one. While Section 15(3) of RA 6770 states that the Ombudsman has the power to “recommend x x x removal, suspension, demotion x x x” of government officials and employees, the same Section 15(3) also states that the Ombudsman in the alternative may “enforce its disciplinary authority as provided in Section 21” of RA 6770. The word “or” in Section 15(3) before the phrase “enforce its disciplinary authority as provided in Section 21” grants the Ombudsman this alternative power. Section 21 of RA 6770 vests in the Ombudsman “disciplinary authority over all elective and appointive officials of the Government,” except impeachable officers, members of Congress, and the Judiciary. And under Section 25 of RA 6770, the Ombudsman may impose in administrative proceedings the “penalty ranging from suspension without pay for one year to dismissal with forfeiture of benefits or a fine ranging from five thousand pesos (P5,000.00) to twice the amount malversed, illegally taken or lost, or both at the discretion of the Ombudsman.” Clearly, under RA 6770 the Ombudsman has the power to impose directly administrative penalty on public officials or employees. Hence, the Court of Appeals erred in ruling that petitioner has no power to impose directly administrative penalties on public officials or employees.

BUENCAMINO V. CA Petitioners were charged of Graft and Corruption for demanding payment (without official receipt) of a "pass way" fee or a regulatory fee of P1,000.00 for every delivery truck that passes the territorial jurisdiction of San Miguel, Bulacan. Ombudsman declared petitioner administratively liable. Petitioner filed a petition for review with application for the issuance of a temporary restraining order and a writ of preliminary injunction in the CA, praying that the Ombudsman be enjoined from implementing its Decision during the pendency

TRUTH. HONOR. EXCELLENCE.

74

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

of his appeal. CA issued a TRO but subsequently denied the application for preliminary injunction. Petitioner alleges that in denying his application for a preliminary injunction, the Court of Appeals gravely abused its discretion; that pursuant to Section 7, Rule III of Administrative Order No. 07, the Decision of the Office of the Ombudsman suspending him from office is not immediately executory; and that in enforcing its Decision suspending him from the service during the pendency of his appeal, the Office of the Ombudsman violated Section 27 of the Ombudsman Act. Ombudsman countered that the Court of Appeals did not gravely abuse its discretion in issuing the assailed Resolutions; and that the cases cited by petitioner are not applicable to this case, the same having been overturned by the ruling of this Court in "In the Matter to Declare in Contempt of Court Hon. Simeon A. Datumanong, Secretary of DPW;" and that Section 7, Rule III of Administrative Order No. 07 has been amended by Administrative Order No. 17, thus: “this Honorable Court emphatically declared that Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman was already amended by Administrative Order No. 17 wherein the pertinent provision on the execution of the Ombudsman’s decision pending appeal is now similar to Section 47 of the "Uniform Rules on Administrative Cases in the Civil Service" that is, decisions of the Ombudsman are immediately executory even pending appeal.” Issue: WON the Ombudsman may promulgate its own rules providing that its decisions are immediately executory? Held: YES. Section 7, Rule III of Administrative Order No. 07, relied upon by petitioner, provides: “Sec. 7. Finality of Decision. Where the respondent is absolved of the charge and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine not equivalent to one month salary, the decision shall be final and unappealable. In all other cases, the decision shall become final after the expiration of ten (10) days from receipt thereof by the respondent, unless a motion for reconsideration or petition for certiorari, shall have been filed by him as prescribed in Section 27 of R.A. 6770.” In interpreting the above provision, this Court held that "only orders, directives or decisions of the Office of the Ombudsman in administrative cases imposing the penalties of public censure, reprimand or suspension of not more than one month or a fine not equivalent to one month salary shall be final and unappealable hence, immediately executory. In all other disciplinary cases where the penalty imposed is other than public censure, reprimand, or suspension of not more than one month, or a fine not equivalent to one month salary, the law gives the respondent the right to appeal. In these cases, the order, directive or decision becomes final and executory only after the lapse of the period to appeal if no appeal is perfected, or after the denial of the appeal from the said order, directive or decision. It is only then that execution shall perforce issue as a matter of right. The fact that the Ombudsman Act gives parties the right to appeal from its decisions should generally carry with it the stay of these decisions pending appeal. Otherwise, the essential nature of these judgments as being appealable would be rendered nugatory." However, as aptly stated by the Office of the Ombudsman in its comment, Section 7, Rule III of Administrative Order No. 07 has

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

been amended by Administrative Order No. 17, thus: “Sec. 7. Finality and execution of decision. - Where the respondent is absolved of the charge, and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine not equivalent to one month salary, the decision shall be final, executory and unappealabe. In all other cases, the decision may be appealed to the Court of Appeals on a verified petition for review under the requirements and conditions set forth in Rule 43 of the Rules of Court, within fifteen (15) days from receipt of the written Notice of the Decision or Order denying the Motion for Reconsideration.” An appeal shall not stop the decision from being executory. In case the penalty is suspension or removal and the respondent wins such appeal, he shall be considered as having been under preventive suspension and shall be paid the salary and such other emoluments that he did not receive by reason of the suspension or removal. A decision of the Office of the Ombudsman in administrative cases shall be executed as a matter of course. The Office of the Ombudsman shall ensure that the decision shall be strictly enforced and properly implemented. The refusal or failure by any officer without just cause to comply with an order of the Office of the Ombudsman to remove, suspend, demote, fine, or censure shall be a ground for disciplinary action against said officer. Clearly, considering that an appeal under Administrative Order No. 17, the amendatory rule, shall not stop the Decision of the Office of the Ombudsman from being executory, we hold that the Court of Appeals did not commit grave abuse of discretion in denying petitioner’s application for injunctive relief. It bears stressing at this point that Section 13(8), Article XI of the Constitution authorizes the Office of the Ombudsman to promulgate its own rules, thus: “Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties: xxx (8) Promulgate its own rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law.” In turn, Section 18 of the Ombudsman Act of 1989 provides: “Section 18. Rules of Procedure. (1) The Office of the Ombudsman shall promulgate its rules of procedure for the effective exercise or performance of its powers, functions and duties.” Furthermore, under Section 27 of R.A. No. 6770, the Office of the Ombudsman has the power to amend or modify its rules as the interest of justice may require.  ARTICLE XII - NATIONAL ECONOMY AND PATRIMONY Section 1. The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged. The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full

TRUTH. HONOR. EXCELLENCE.

75

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices. In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to develop. Private enterprises, including corporations, cooperatives, and similar collective organizations, shall be encouraged to broaden the base of their ownership. Doctrines Q. How are forest reserves converted into non-forest reserve? A. Unlike Proclamation No. 369, Commonwealth Act No. 137 vests solely in the President, with the concurrence of the National Assembly, the power to withdraw forest reserves found to be more valuable for their mineral contents than for the purpose for which the reservation was made and convert the same into non-forest reserves. A similar provision can also be found in Presidential Decree No. 463 dated 17 May 1974, with the modifications that (1) the declaration by the President no longer requires the concurrence of the National Assembly and the DENR Secretary merely exercises the power to recommend to the President which forest reservations are to be withdrawn from the coverage thereof. Apex Mining v. Southeast Mindanao Gold, G.R. No. 152613 & No. 152628, June 23, 2006.

FR. JOAQUIN BERNAS, S.J.

lands shall revert to the public domain and be subject to disposition under the provisions of this Act.” Unlike Proclamation No. 369, Commonwealth Act No. 137 vests solely in the President, with the concurrence of the National Assembly, the power to withdraw forest reserves found to be more valuable for their mineral contents than for the purpose for which the reservation was made and convert the same into nonforest reserves. A similar provision can also be found in Presidential Decree No. 463 dated 17 May 1974, with the modifications that (1) the declaration by the President no longer requires the concurrence of the National Assembly and (2) the DENR Secretary merely exercises the power to recommend to the President which forest reservations are to be withdrawn from the coverage thereof. Section 8 of Presidential Decree No. 463 reads: “SEC. 8. Exploration and Exploitation of Reserved Lands. – When lands within reservations, which have been established for purposes other than mining, are found to be more valuable for their mineral contents, they may, upon recommendation of the Secretary be withdrawn from such reservation by the President and established as a mineral reservation.” Against the backdrop of the applicable statutes which govern the issuance of DAO No. 66, this Court is constrained to rule that said administrative order was issued not in accordance with the laws. Inescapably, DAO No. 66, declaring 729 hectares of the areas covered by the Agusan-Davao-Surigao Forest Reserve as non-forest land open to small-scale mining operations, is null and void as, verily, the DENR Secretary has no power to convert forest reserves into non-forest reserves.

APEX MINING V. SOUTHEAST MINDANAO GOLD In 1931, Governor General Dwight F. Davis issued Proclamation No. 369, establishing the Agusan-Davao-Surigao Forest Reserve consisting of approximately 1,927,400 hectares. DENR secretary issued DAO No. 66, declaring 729 hectares of the areas covered by the Agusan-Davao-Surigao Forest Reserve as non-forest land open to small-scale mining operations. Issue: WON DENR Secretary has authority to issue DAO66? Held: NO. The Court of Appeals theorizes that DAO No. 66 was issued beyond the power of the DENR Secretary since the power to withdraw lands from forest reserves and to declare the same as an area open for mining operation resides in the President. Under Proclamation No. 369 dated 27 February 1931, the power to convert forest reserves as non-forest reserves is vested with the DENR Secretary. Proclamation No. 369 partly states: “From this reserve shall be considered automatically excluded all areas which had already been certified and which in the future may be proclaimed as classified and certified lands and approved by the Secretary of Agriculture and Natural Resources.” However, a subsequent law, Commonwealth Act No. 137, otherwise known as “The Mining Act” which was approved on 7 November 1936 provides: “Sec. 14. Lands within reservations for purposes other than mining, which, after such reservation is made, are found to be more valuable for their mineral contents than for the purpose for which the reservation was made, may be withdrawn from such reservations by the President with the concurrence of the National Assembly, and thereupon such

JEN LAYGO 4D 2007

Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twentyfive years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant. The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fish- workers in rivers, lakes, bays, and lagoons. The President may enter into agreements with foreign-owned corporations involving either technical or

TRUTH. HONOR. EXCELLENCE.

76

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources. The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution. Doctrine Q. X is in possession of patented land which the government claims to be part of the forest domain. In such a situation, the action to be taken by government is an action for reversion on the ground of fraud and misrepresentation. Who has the burden of proof? A. The government. Fraud and misrepresentation is never presumed. In applying the regalian doctrine the paramount values of fairness and due process must be observed. Saad-Agro Industries vs. Republic, G.R. No. 152570, September 27, 2006. SAAD-AGRO INDUSTRIES VS. REPUBLIC Orcullo applied and was issued a free patent over a parcel of land. Orcullo subsequently sold the land to SAAD Agro Industries Inc. Thereafter, the Republic of the Philippines, through the Solicitor General, filed a complaint for annulment of title and reversion of the lot covered by the Free Patent and the reversion of such to the mass of the public domain, on the ground that the issuance of the said free patent was irregular and erroneous, following the discovery that the lot is allegedly part of the timberland and forest reserve of Sibonga, Cebu. RTC dismissed the complaint, finding that respondent failed to show that the subject lot is part of the timberland or forest reserve or that it has been classified as such before the issuance of the free patent and the original title. According to the trial court, the issuance of the free patent and title was regular and in order, and must be accorded full faith. Considering the validity of the free patent and the OCT, petitioner’s purchase of the property was also declared legal and valid. On appeal, CA reversed, holding that the timber or forest lands, to which the subject lot belongs, are not subject to private ownership, unless these are first classified as agricultural lands. Thus, absent any declassification of the subject lot from forest to alienable and disposable land for agricultural purposes, the officers erred in approving Orcullo’s free patent application and in issuing the OCT; hence, title to the lot must be cancelled. Consequently, the Court of Appeals invalidated the sale of the lot to petitioner. Petitioner asserts that respondent failed to show that the subject lot is inside the timberland block, thereby casting doubt on the accuracy of the survey conducted by the Bureau of Forestry and the opinions of DENR officers. Since respondent is the original plaintiff in the reversion case, the burden is on it to prove that subject lot is part of the timberland block, petitioner adds. Issue: WON the government has the burden of proof that the lot is part of timberland?

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

Held: YES. It has been held that a complaint for reversion involves a serious controversy, involving a question of fraud and misrepresentation committed against the government and it is aimed at the return of the disputed portion of the public domain. It seeks to cancel the original certificate of registration, and nullify the original certificate of title, including the transfer certificate of title of the successors-in-interest because the same were all procured through fraud and misrepresentation. Thus, the State, as the party alleging the fraud and misrepresentation that attended the application of the free patent, bears that burden of proof. Fraud and misrepresentation, as grounds for cancellation of patent and annulment of title, should never be presumed but must be proved by clear and convincing evidence, mere preponderance of evidence not even being adequate. It is but judicious to require the Government, in an action for reversion, to show the details attending the issuance of title over the alleged inalienable land and explain why such issuance has deprived the State of the claimed property. In concluding that the subject parcel of land falls within the timberland or forest reserve, the Court of Appeals relied on the testimony of Isabelo R. Montejo that as it had remained unclassified until 1980 and consequently became an unclassified forest zone, it was incapable of private appropriation. In one case, the SC held that although it is not disputed that the aforesaid Land Classification Project No. 3, classifying the 22hectare area as timberland, was certified by the Director of Lands only on December 22, 1924, whereas the possession thereof by private respondents and their predecessor-in-interest commenced as early as 1909. While the Government has the right to classify portions of public land, the primary right of a private individual who possessed and cultivated the land in good faith much prior to such classification must be recognized and should not be prejudiced by after-events which could not have been anticipated. Thus, We have held that the Government, in the first instance may, by reservation, decide for itself what portions of public land shall be considered forestry land, unless private interests have intervened before such reservation is made. Obviously, private interests have intervened before classification was made pursuant to P.D. No. 705. Not only has Orcullo by herself and through her predecessors-in-interest cultivated and possessed the subject lot since 1930, a free patent was also awarded to her and a title issued in her name as early as 1971. In fact, it appears that the issuance of the free patent and certificate of title was regular and in order. Orcullo complied with the requisites for the acquisition of free patent provided under Commonwealth Act No. 141 (Public Land Act), as certified by the Director of Lands and approved by the Secretary of Agriculture and Natural Resources. The Regalian doctrine is well-enshrined not only in the present Constitution, but also in the 1935 and 1973 Constitutions. The Court has always recognized and upheld the Regalian doctrine as the basic foundation of the State's property regime. Nevertheless, in applying this doctrine, we must not lose sight of the fact that in every claim or right by the Government against one of its citizens, the paramount considerations of fairness and due process must be observed. Respondent in this case failed to show that the subject lot is part of timberland or forest reserve

TRUTH. HONOR. EXCELLENCE.

77

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

it adverted to. In the face of the uncontroverted status of Free Patent No. 473408 and OCT No. 0-6667 as valid and regular issuances, respondent’s insistence on the classification of the lot as part of the forest reserve must be rejected. Section 3. Lands of the public domain are classified into agricultural, forest or timber, mineral lands and national parks. Agricultural lands of the public domain may be further classified by law according to the uses to which they may be devoted. Alienable lands of the public domain shall be limited to agricultural lands. Private corporations or associations may not hold such alienable lands of the public domain except by lease, for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and not to exceed one thousand hectares in area. Citizens of the Philippines may lease not more than five hundred hectares, or acquire not more than twelve hectares thereof, by purchase, homestead, or grant. Taking into account the requirements of conservation, ecology, and development, and subject to the requirements of agrarian reform, the Congress shall determine, by law, the size of lands of the public domain which may be acquired, developed, held, or leased and the conditions therefor. Doctrines Q. Can an unclassified forested area be acquired by continuous possession? A. No because it is inalienable. Republic v. Naguiat, G.R. No. 134209. January 24, 2006. The prerogative of classifying public lands pertains to administrative agencies which have been specially tasked by statutes to do so and the courts will not interfere on matters which are addressed to the sound discretion of government and/or quasi-judicial agencies entrusted with the regulation of activities coming under their special technical knowledge and training. Republic v. Mendoza, GR 153727. March 28, 2007. Reclaimed lands are alienable after being classified as such. The reclaimed land in this case are alienable because they had been declared alienable by presidential proclamation. When President Aquino issued MO 415 conveying the land covered by the Smokey Mountain Dumpsite is to the National Housing Authority as well as the area to be reclaimed across R-10, the coneyance implicitly carried with it the declaration that said lands are alienable and disposable. Otherwise, the NHA cannot effectively use them in its housing and resettlement project. President Ramos made similar conveyances to the NHA. Apropos the requisite law categorizing reclaimed land as alienable or disposable, we find that RA 6957 as amended by RA 7718 provides ample authority for the classification of reclaimed land. While RA 6957 as modified by RA 7718 does not expressly declare that the reclaimed lands that shall serve as payment to the project proponent have become alienable and disposable lands and opened for disposition; nonetheless, this conclusion is necessarily implied, for how else can the land be used as the enabling component for the Project if such classification is not deemed made?

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

We ruled in PEA that “alienable lands of public domain must be transferred to qualified private parties, or to government entities not tasked to dispose of public lands, before these lands can become private or patrimonial lands (emphasis supplied).” To lands reclaimed by PEA or through a contract with a private person or entity, such reclaimed lands still remain alienable lands of public domain which can be transferred only to Filipino citizens but not to a private corporation. This is because PEA under PD 1084 and EO 525 is tasked to hold and dispose of alienable lands of public domain and it is only when it is transferred to Filipino citizens that it becomes patrimonial property. On the other hand, the NHA is a government agency not tasked to dispose of public lands under its charter—The Revised Administrative Code of 1987. The NHA is an “end-user agency” authorized by law to administer and dispose of reclaimed lands. The moment titles over reclaimed lands based on the special patents are transferred to the NHA by the Register of Deeds, they are automatically converted to patrimonial properties of the State which can be sold to Filipino citizens and private corporations, 60% of which are owned by Filipinos. The reason is obvious: if the reclaimed land is not converted to patrimonial land once transferred to NHA, then it would be useless to transfer it to the NHA since it cannot legally transfer or alienate lands of public domain. More importantly, it cannot attain its avowed purposes and goals since it can only transfer patrimonial lands to qualified beneficiaries and prospective buyers to raise funds for the SMDRP. From the foregoing considerations, we find that the 79-hectare reclaimed land has been declared alienable and disposable land of the public domain; and in the hands of NHA, it has been reclassified as patrimonial property. Chavez v. NHA, G.R. No. 164527, August 15, 2007. REPUBLIC V. NAGUIAT Naguiat applied for registration of a parcel of land, alleging that she is the owner of the said land having acquired them by purchase from the LID Corporation which likewise acquired the same from Demetria Calderon, Josefina Moraga and Fausto Monje and their predecessors-in-interest who have been in possession thereof for more than 30 years; and that to the best of her knowledge, said lots suffer no mortgage or encumbrance of whatever kind nor is there any person having any interest, legal or equitable, or in possession thereof. Republic opposed on the ground that neither the applicant nor her predecessors-in interest have been in open, continuous, exclusive and notorious possession and occupation of the lands; that the applicant’s claim of ownership in fee simple on the basis of Spanish title or grant can no longer be availed of; and that the parcels of land applied for are part of the public domain belonging to the Republic of the Philippines not subject to private appropriation. RTC rendered judgment in favor of Naguiat, adjudicating unto her the parcels of land in question and decreeing the registration thereof in her name. CA affirmed. Issue: WON an unclassified forested area be acquired by continuous possession? Held: NO. Public forest lands or forest reserves, unless declassified and released by positive act of the Government so that they may form part of the disposable agricultural lands of

TRUTH. HONOR. EXCELLENCE.

78

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

the public domain, are not capable of private appropriation. As to these assets, the rules on confirmation of imperfect title do not apply. Given this postulate, the principal issue to be addressed turns on the question of whether or not the areas in question have ceased to have the status of forest or other inalienable lands of the public domain. Forests, in the context of both the Public Land Act and the Constitution classifying lands of the public domain into "agricultural, forest or timber, mineral lands and national parks," do not necessarily refer to a large tract of wooded land or an expanse covered by dense growth of trees and underbrush. As we stated in Heirs of Amunategui – “A forested area classified as forest land of the public domain does not lose such classification simply because loggers or settlers have stripped it of its forest cover. Parcels of land classified as forest land may actually be covered with grass or planted to crops by kaingin cultivators or other farmers. "Forest lands" do not have to be on mountains or in out of the way places. xxx. The classification is merely descriptive of its legal nature or status and does not have to be descriptive of what the land actually looks like.” Under Section 2, Article XII of the Constitution, which embodies the Regalian doctrine, all lands of the public domain belong to the State the source of any asserted right to ownership of land. All lands not appearing to be clearly of private dominion presumptively belong to the State. Accordingly, public lands not shown to have been reclassified or released as alienable agricultural land or alienated to a private person by the State remain part of the inalienable public domain. Under Section 6 of the Public Land Act, the prerogative of classifying or reclassifying lands of the public domain, i.e., from forest or mineral to agricultural and vice versa, belongs to the Executive Branch of the government and not the court. Needless to stress, the onus to overturn, by incontrovertible evidence, the presumption that the land subject of an application for registration is alienable or disposable rests with the applicant. Here, respondent never presented the required certification from the proper government agency or official proclamation reclassifying the land applied for as alienable and disposable. Matters of land classification or reclassification cannot be assumed. It calls for proof. Aside from tax receipts, respondent submitted in evidence the survey map and technical descriptions of the lands, which, needless to state, provided no information respecting the classification of the property. As the Court has held, however, these documents are not sufficient to overcome the presumption that the land sought to be registered forms part of the public domain. It cannot be overemphasized that unwarranted appropriation of public lands has been a notorious practice resorted to in land registration cases. For this reason, the Court has made it a point to stress, when appropriate, that declassification of forest and mineral lands, as the case may be, and their conversion into alienable and disposable lands need an express and positive act from the government. REPUBLIC V. MENDOZA Democrito T. Mendoza, Sr. was accorded Ordinary Fishpond Permit for an area within Silot Bay, which was previously leased by his father who waived the leasehold rights in his favor. Meanwhile, then President Ferdinand E. Marcos issued a Memorandum addressed to the Secretary of Agriculture and

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

Natural Resources, the Chairman of the Board of Governors of the Development Bank of the Philippines, the Undersecretary of Natural Resources, and the Directors of the Bureaus of Fishery, Forestry, and Lands, respectively, thereby constituting a continuing committee to accomplish the following: 1. Identify the exact locations and area of these 700,000 hectares of fishpond areas on or before February 28, 1967. x x x. 2. Within the month of March 1967, all these fishpond areas shall be released by the Bureau of Forestry to the Bureau of Lands as alienable and disposable, but subject to the disposal of the Bureau of Fisheries for fishpond purposes.

Thereafter, Mendoza, Sr. filed an application for sales patent to purchase the area covered by Ordinary Fishpond Permit. Then Acting Director of Forestry Jose Viado issued a Letter Certification addressed to the Director of Lands, stating that the land in Silot is within the Timberland Block, but since it has been certified as available for fishpond development and is thus no longer needed for forest purposes, the same was certified and released as Alienable or Disposable for fishpond purposes only pursuant to the directive of the President, subject ti certain conditions. In compliance with the process for sales patent application, Democrito Mendoza, Sr. secured and submitted separate certifications from concerned government. Subsequently, notices of sale were published. In the interim, Presidential Decree No. 43, Providing for the Accelerated Development of the Fishery Industry of the Philippines, was issued, whereupon all public lands, such as tidal swamps, mangrove and other swamps, marshes, ponds and streams within public lands, including public lands left dry during the lowest low tide and covered by water during the highest tide; and which are not needed for forestry purposes were declared available for fishpond purposes and automatically transferred to the Bureau of Fisheries for its administration and disposition. A day before the scheduled auction sale of the disputed property, then Liloan Mayor Cesar Bugtai filed a letter-protest with the Director of Lands objecting to the proposed sale of the property. According to Mayor Bugtai, the area was intended for development by the local government as a tourist attraction. Despite said opposition by the municipal mayor, the District Land Office of Cebu City proceeded with the scheduled auction sale, wherein Democrito Mendoza, Sr. was declared winner, being the sole bidder thereat. In the meantime, the 1973 Constitution came into force, providing that the purchase of lands of the public dominion was limited to 24 hectares per individual. However, despite such, the application for patent was granted. Issue: WON the issuance of the patent was proper? Held: YES. Under Opinion No. 64, series of 1973, it has been held that "even sales application already awarded are not to be exempted from constitutional injunction regarding the acquisition of public lands for the reason that other requirements have still to be satisfied before a patent may be issued". In the case of the abovementioned application, while the land covered thereby was sold at public auction in which the applicant is the successful bidder and has been considerably improved and developed, no formal award has up to now been issued by this Office. In other words, the applicant may be considered not having acquired vested rights over the land applied for prior to

TRUTH. HONOR. EXCELLENCE.

79

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

the advent of the New Constitution which will entitle him to exemption from the constitutional limitation. From the abovequoted Opinion, it can be deduced that had it not been for circumstance beyond the applicant’s control, i.e., the adoption of the 1973 Constitution during the pendency of the sales patent application of Democrito T. Mendoza, Sr., there would not have been any obstacle for its approval by the Office of the President. Hence, taking into account the fact that Democrito T. Mendoza, Sr. had complied with all the necessary requirements for the issuance of sales patent covering the disputed area, then Acting Director of the Bureau of Lands Ramon N. Casanova recommended the approval of said application in the spirit of justice and equity. It is worth noting that in order to conform to the prohibitions imposed by the 1973 Constitution which limits the purchase of lands of the public dominion to 24 hectares per individual, Democrito Mendoza, Sr., subdivided the property in question into four, each comprising an area not more than 24 hectares, and assigned his rights over three parts to his three children. Accordingly, Democrito Mendoza, Sr. amended his sales patent application while his three children filed their own applications for their respective parts. The area applied for in each of the Mendozas’ sales patent applications were, by then, well-within the constitutional limitation. Such subdivision of the area originally applied for by Democrito Mendoza, Sr. was made with the full knowledge and the subsequent approval of all the appropriate government authorities. There is nothing to suggest that it was done illicitly or fraudulently. That the subdivision was executed overtly actually establish the good faith of the Mendozas to comply with the Constitutional and statutory provisions on sales patent applications. In the absence of any evidence of fraud or violation of law, the title of the Mendozas over the disputed property has now become indefeasible, even as against the petitioner Republic. While the general rule is that the State cannot be put in estoppel by the mistakes or errors of its officials or agents, like all general rules, this is also subject to exceptions. We recognized such exceptions in Republic v. Court of Appeals, to wit – “The general rule is that the State cannot be put in estoppel by the mistakes or errors of its officials or agents. However, like all general rules, this is also subject to exceptions, viz: Estoppels against the public are little favored. They should not be invoked except in rare and unusual circumstances, and may not be invoked where they would operate to defeat the effective operation of a policy adopted to protect the public. They must be applied with circumspection and should be applied only in those special cases where the interests of justice clearly require it. Nevertheless, the government must not be allowed to deal dishonorably or capriciously with its citizens, and must not play an ignoble part or do a shabby thing; and subject to limitations x x x the doctrine of equitable estoppel may be invoked against public authorities as well as against private individuals." In the Petition at bar, the Mendozas were given clearances and certifications on the lack of objections to their sales patent applications by the Director of Forestry, Provincial Engineer of Cebu, the District Engineer of Cebu, the Municipal Council of Liloan, Cebu, and the Commissioner of Customs, and the Secretary of Public Works and Highways. Subsequently, their sales patent applications were approved by the Director of the Bureau of Lands, the Secretary of the Department of Natural Resources, and the President of the Republic. Based on their

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

patents, the Mendozas were able to acquire original certificates of tile from the Registry of Deeds. Without any allegation and evidence that these government officials committed any mistake, error or irregularity in the approval of the sales patent applications and issuance of the certificates of title in the name of the Mendozas, then their acts in relation thereto estop the Republic from questioning the validity of the said sales patents and the certificates of title. Finally, it should be borne in mind that that the contested areas and titles thereto had already passed on to third parties who acquired the same from the Mendozas in good faith and for value. When the Mendozas’ sales patents were registered, they were brought under the operation of Presidential Decree No. 11529, otherwise know as the Land Registration Decree. CHAVEZ V. NHA Pres. Aquino issued Memorandum Order 161 approving and directing the implementation of the Comprehensive and Integrated Metropolitan Manila Waste Management Plan. The Metro Manila Commission, in coordination with various government agencies, was tasked as the lead agency to implement the Plan as formulated by the Pres’l Task Force on Waste Management created by Memorandum Circular 39. A day after, MO 161-A was issued, containing the guidelines which prescribed the functions and responsibilities of 15 various government departments and offices tasked to implement the Plan. Respondent NHA was ordered to “conduct feasibility studies and develop low-cost housing projects at the dumpsite and absorb scavengers in NHA resettlement/low-cost housing projects.” On the other hand, the DENR was tasked to “review and evaluate proposed projects under the Plan with regard to their environmental impact, conduct regular monitoring of activities of the Plan to ensure compliance with environmental standards and assist DOH in the conduct of the study on hospital waste management.” Pursuant to MO 161-A, NHA prepared the feasibility studies of the Smokey Mountain low-cost housing project which resulted in the formulation of the “Smokey Mountain Development Plan and Reclamation of the Area Across R-10” or the Smokey Mountain Development and Reclamation Project (SMDRP; the Project). The Project aimed to convert the Smokey Mountain dumpsite into a habitable housing project, inclusive of the reclamation of the area across R-10, adjacent to the Smokey Mountain as the enabling component of the project. Once finalized, the Plan was submitted to President Aquino for her approval, which was granted. Issue: WON the reclaimed foreshore and submerged parcels of land are inalienable public lands which are beyond the commerce of man? Held: NO, they are alienable once declared by the government as such. Secs. 2 and 3, Art. XII of the Constitution declare that all natural resources are owned by the State and they cannot be alienated except for alienable agricultural lands of the public domain. One of the State’s natural resources are lands of public domain which include reclaimed lands. Petitioner contends that for these reclaimed lands to be alienable, there must be a law or presidential proclamation officially classifying these reclaimed lands as alienable and disposable and open to disposition or concession. Absent such

TRUTH. HONOR. EXCELLENCE.

80

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

law or proclamation, the reclaimed lands cannot be the enabling component or consideration to be paid to RBI as these are beyond the commerce of man. We are not convinced of petitioner’s postulation. The reclaimed lands across R-10 were classified alienable and disposable lands of public domain of the State for the following reasons, viz: First, there were 3 presidential proclamations classifying the reclaimed lands across R-10 as alienable or disposable hence open to disposition or concession. Secondly, Special Patents issued by the DENR anchored on Proclamations Nos. 39 and 465 issued by President Ramos, without doubt, classified the reclaimed areas as alienable and disposable. Admittedly, it cannot be said that MO 415, Proclamations Nos. 39 and 465 are explicit declarations that the lands to be reclaimed are classified as alienable and disposable. We find however that such conclusion is derived and implicit from the authority given to the NHA to transfer the reclaimed lands to qualified beneficiaries. The query is, when did the declaration take effect? It did so only after the special patents covering the reclaimed areas were issued. It is only on such date that the reclaimed lands became alienable and disposable lands of the public domain. This is in line with the ruling in PEA where said issue was clarified and stressed: PD No. 1085, coupled with President Aquino’s actual issuance of a special patent covering the Freedom Islands, is equivalent to an official proclamation classifying the Freedom Islands as alienable or disposable lands of the public domain. PD No. 1085 and President Aquino’s issuance of a land patent also constitute a declaration that the Freedom Islands are no longer needed for public service. The Freedom Islands are thus alienable or disposable lands of the public domain, open to disposition or concession to qualified parties. Thus, MO 415 and Proclamations Nos. 39 and 465 cumulatively and jointly taken together with Special Patent Nos. 3591, 3592, and 3598 more than satisfy the requirement in PEA that “[t]here must be a law or presidential proclamation officially classifying these reclaimed lands as alienable or disposable and open to disposition or concession.” Apropos the requisite law categorizing reclaimed land as alienable or disposable, we find that RA 6957 as amended by RA 7718 provides ample authority for the classification of reclaimed land in the SMDRP for the repayment scheme of the BOT project as alienable and disposable lands of public domain. Sec. 6 of RA 6957 as amended by RA 7718 provides: “For the financing, construction, operation and maintenance of any infrastructure projects undertaken through the buildoperate-and transfer arrangement or any of its variations pursuant to the provisions of this Act, the project proponent x x x may likewise be repaid in the form of a share in the revenue of the project or other non-monetary payments, such as, but not limited to, the grant of a portion or percentage of the reclaimed land, subject to the constitutional requirements with respect to the ownership of the land.” While RA 6957 as modified by RA 7718 does not expressly declare that the reclaimed lands that shall serve as payment to the project proponent have become alienable and disposable lands and opened for disposition; nonetheless, this conclusion is necessarily implied, for how else can the land be used as the enabling component for the Project if such classification is not deemed made?

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

It may be argued that the grant of authority to sell public lands, pursuant to PEA, does not convert alienable lands of public domain into private or patrimonial lands. We ruled in PEA that “alienable lands of public domain must be transferred to qualified private parties, or to government entities not tasked to dispose of public lands, before these lands can become private or patrimonial lands.” To lands reclaimed by PEA or through a contract with a private person or entity, such reclaimed lands still remain alienable lands of public domain which can be transferred only to Filipino citizens but not to a private corporation. This is because PEA under PD 1084 and EO 525 is tasked to hold and dispose of alienable lands of public domain and it is only when it is transferred to Filipino citizens that it becomes patrimonial property. On the other hand, the NHA is a government agency not tasked to dispose of public lands under its charter—The Revised Administrative Code of 1987. The NHA is an “end-user agency” authorized by law to administer and dispose of reclaimed lands. The moment titles over reclaimed lands based on the special patents are transferred to the NHA by the Register of Deeds, they are automatically converted to patrimonial properties of the State which can be sold to Filipino citizens and private corporations, 60% of which are owned by Filipinos. The reason is obvious: if the reclaimed land is not converted to patrimonial land once transferred to NHA, then it would be useless to transfer it to the NHA since it cannot legally transfer or alienate lands of public domain. More importantly, it cannot attain its avowed purposes and goals since it can only transfer patrimonial lands to qualified beneficiaries and prospective buyers to raise funds for the SMDRP. Section 7. 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. Q. Maria, a Filipina, married Klaus, a German, in Germany. Later they settled in the Philippines. Klaus sold the property in Germany which he had inherited and with the proceeds he bought a lot in Antipolo but, knowing that he could not acquire land in the Philippines, registered it in the name of Maria. With the rest of the money he constructed a house. Upon the dissolution of the community of property Klaus does not claim ownership of the land but reimbursement in equity on the theory that Maria merely held the property in trust. Can he? A. No. To claim equity he must come with clean hands. Klaus knew he was violating the law when he purchased the land. Muller v Muller, G.R. No. 149615, August 29, 2006. MULLER V. MULLER The issue for resolution is whether respondent is entitled to reimbursement of the funds used for the acquisition of the Antipolo property. Respondent was aware of the constitutional prohibition and expressly admitted his knowledge thereof to this Court. He declared that he had the Antipolo property titled in the name of petitioner because of the said prohibition. His attempt at subsequently asserting or claiming a right on the said property cannot be sustained. Thus, in the instant case, respondent cannot seek reimbursement on the ground of equity where it is

TRUTH. HONOR. EXCELLENCE.

81

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

clear that he willingly and knowingly bought the property despite the constitutional prohibition. Further, the distinction made between transfer of ownership as opposed to recovery of funds is a futile exercise on respondent’s part. To allow reimbursement would in effect permit respondent to enjoy the fruits of a property which he is not allowed to own. Thus, it is likewise proscribed by law. As expressly held in Cheesman v. Intermediate Appellate Court:”Finally, the fundamental law prohibits the sale to aliens of residential land. Section 14, Article XIV of the 1973 Constitution ordains that, “Save in cases of hereditary succession, no private land shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain.” Petitioner Thomas Cheesman was, of course, charged with knowledge of this prohibition. Thus, assuming that it was his intention that the lot in question be purchased by him and his wife, he acquired no right whatever over the property by virtue of that purchase; and in attempting to acquire a right or interest in land, vicariously and clandestinely, he knowingly violated the Constitution; the sale as to him was null and void. In any event, he had and has no capacity or personality to question the subsequent sale of the same property by his wife on the theory that in so doing he is merely exercising the prerogative of a husband in respect of conjugal property. To sustain such a theory would permit indirect controversion of the constitutional prohibition. If the property were to be declared conjugal, this would accord to the alien husband a not insubstantial interest and right over land, as he would then have a decisive vote as to its transfer or disposition. This is a right that the Constitution does not permit him to have.” As already observed, the finding that his wife had used her own money to purchase the property cannot, and will not, at this stage of the proceedings be reviewed and overturned. But even if it were a fact that said wife had used conjugal funds to make the acquisition, the considerations just set out to militate, on high constitutional grounds, against his recovering and holding the property so acquired, or any part thereof. And whether in such an event, he may recover from his wife any share of the money used for the purchase or charge her with unauthorized disposition or expenditure of conjugal funds is not now inquired into; that would be, in the premises, a purely academic exercise.

Section 11. 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; nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so requires. The State shall encourage equity participation in public utilities by the general public. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation or association must be citizens of the Philippines.

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

Doctrine Water Districts are public utilities covered by XII, 11. Metropolitan Cebu Water v. Adala, G.R. No. 168914, July 4, 2007. METROPOLITAN CEBU WATER V. ADALA Respondent filed an application with the NWRB for the issuance of a Certificate of Public Convenience (CPC) to operate and maintain waterworks system in sitios San Vicente, Fatima, and Sambag in Barangay Bulacao, Cebu City. In its Opposition, petitioner prayed for the denial of respondent’s application on the following grounds: (1) petitioner’s Board of Directors had not consented to the issuance of the franchise applied for, such consent being a mandatory condition pursuant to P.D. 198, (2) the proposed waterworks would interfere with petitioner’s water supply which it has the right to protect, and (3) the water needs of the residents in the subject area was already being well served by petitioner. Issue: WON the term franchise as used in Section 47 of PD198, means a franchise granted by Congress through legislation only or does it also include in its meaning a certificate of public convenience issued by the National Water Resources Board for the maintenance of waterworks system or water supply service? Held: Petitioner contends that “franchise” should be broadly interpreted, such that the prohibition against its grant to other entities without the consent of the district’s board of directors extends to the issuance of CPCs. A contrary reading, petitioner adds, would result in absurd consequences, for it would mean that Congress’ power to grant franchises for the operation of waterworks systems cannot be exercised without the consent of water districts. Petitioner’s position that an overly strict construction of the term “franchise” as used in Section 47 of P.D. 198 would lead to an absurd result impresses. If franchises, in this context, were strictly understood to mean an authorization issuing directly from the legislature, it would follow that, while Congress cannot issue franchises for operating waterworks systems without the water district’s consent, the NWRB may keep on issuing CPCs authorizing the very same act even without such consent. In effect, not only would the NWRB be subject to less constraints than Congress in issuing franchises. The exclusive character of the franchise provided for by Section 47 would be illusory. Nonetheless, while the prohibition in Section 47 of P.D. 198 applies to the issuance of CPCs for the reasons discussed above, the same provision must be deemed void ab initio for being irreconcilable with Article XIV Section 5 of the 1973 Constitution which was ratified on January 17, 1973 – the constitution in force when P.D. 198 was issued on May 25, 1973. Thus, Section 5 of Art. XIV of the 1973 Constitution reads: “SECTION 5. 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 the capital of which is owned by such citizens, nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Batasang Pambansa when the public interest so requires. The State shall encourage equity

TRUTH. HONOR. EXCELLENCE.

82

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

participation in public utilities by the general public. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in the capital thereof.” This provision has been substantially reproduced in Article XII Section 11 of the 1987 Constitution, including the prohibition against exclusive franchises. In view of the purposes for which they are established, water districts fall under the term “public utility” as defined in the case of National Power Corporation v. Court of Appeals: A “public utility” is a business or service engaged in regularly supplying the public with some commodity or service of public consequence such as electricity, gas, water, transportation, telephone or telegraph service. It bears noting, moreover, that as early as 1933, the Court held that a particular water district – the Metropolitan Water District – is a public utility. Since Section 47 of P.D. 198, which vests an “exclusive franchise” upon public utilities, is clearly repugnant to Article XIV, Section 5 of the 1973 Constitution, it is unconstitutional and may not, therefore, be relied upon by petitioner in support of its opposition against respondent’s application for CPC and the subsequent grant thereof by the NWRB. Section 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest. Doctrine Q. When the President declares a state of emergency, does she acquire the power to take over the operation of public utilities? A. No. Article XII, Section 17 must be read with Article VI, Section 23. Section 17 gives the power to the State not to the President. The President acquires emergency powers when given to her by Congress in a state of emergency declared by Congress. Obiter in David v. Ermita, G.R. No. 171409, May 3, 2006. DAVID V. ERMITA On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power I, President Arroyo issued PP 1017 declaring a state of national emergency, thus: NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of the Philippine Constitution which states that: “The President. . . whenever it becomes necessary, . . . may call out (the) armed forces to prevent or suppress. . .rebellion. . .,” and in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction; and as provided in Section 17, Article 12 of the Constitution do hereby declare a State of National Emergency.

She then issued General orders 5 implementing PP 1017, stating: NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under the Constitution as President of the Republic of the Philippines, and Commander-in-Chief of the Republic of the Philippines, and pursuant to Proclamation

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

No. 1017 dated February 24, 2006, do hereby call upon the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), to prevent and suppress acts of terrorism and lawless violence in the country; I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and men of the AFP and PNP, to immediately carry out the necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence.”

Exactly one week after the declaration of a state of national emergency and after all these petitions had been filed, the President lifted PP1017 via Proclamation 1021 which reads: “NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines, by virtue of the powers vested in me by law, hereby declare that the state of national emergency has ceased to exist.” Issue: Whether the President can take over private businesses? Held: A distinction must be drawn between the President’s authority to declare “a state of national emergency” and to exercise emergency powers. To the first, Section 18, Article VII grants the President such power, hence, no legitimate constitutional objection can be raised. But to the second, manifold constitutional issues arise. President Arroyo could validly declare the existence of a state of national emergency even in the absence of a Congressional enactment. But the exercise of emergency powers, such as the taking over of privately owned public utility or business affected with public interest, is a different matter. This requires a delegation from Congress. Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a body cannot delegate a power not reposed upon it. However, knowing that during grave emergencies, it may not be possible or practicable for Congress to meet and exercise its powers, the Framers of our Constitution deemed it wise to allow Congress to grant emergency powers to the President, subject to certain conditions, thus: (1) There must be a war or other emergency; (2) The delegation must be for a limited period only; (3) The delegation must be subject to such restrictions as the Congress may prescribe; and (4) The emergency powers must be exercised to carry out a national policy declared by Congress. Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over of private business affected with public interest is just another facet of the emergency powers generally reposed upon Congress. Thus, when Section 17 states that the “the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest,” it refers to Congress, not the President. Now, whether or not the President may exercise such power is dependent on whether Congress may delegate it to him pursuant to a law prescribing the reasonable terms thereof. Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP 1017, this Court rules that such Proclamation does not authorize her during the emergency to temporarily take over or direct the operation of any privately owned public utility or business affected with public interest without authority from Congress. Let it be emphasized that while the President alone can declare a state of national emergency, however, without legislation, he has no power to take over privately-owned

TRUTH. HONOR. EXCELLENCE.

83

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

public utility or business affected with public interest. The President cannot decide whether exceptional circumstances exist warranting the take over of privately-owned public utility or business affected with public interest. Nor can he determine when such exceptional circumstances have ceased. Likewise, without legislation, the President has no power to point out the types of businesses affected with public interest that should be taken over. In short, the President has no absolute authority to exercise all the powers of the State under Section 17, Article VII in the absence of an emergency powers act passed by Congress. Section 19. The State shall regulate or prohibit monopolies when the public interest so requires. No combinations in restraint of trade or unfair competition shall be allowed. Doctrine Contracts requiring exclusivity are not per se void. Each contract must be viewed vis-à-vis all the circumstances surrounding such agreement in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition. Avon v. Luna, G. R. No. 153674, December 20, 2006. Digest AVON V. LUNA Respondent Luna has been working for Beautifont, Inc. since 1972, which later became Avon Cosmetics, Inc. (Avon). By virtue of the execution of the aforequoted Supervisors Agreement, respondent Luna became part of the independent sales force of petitioner Avon. Sometime in the latter part of 1988, respondent Luna was invited by a former Avon employee who was then currently a Sales Manager of Sandré Philippines, Inc., a domestic corporation engaged in direct selling of vitamins and other food supplements, to sell said products. Respondent Luna apparently accepted the invitation as she then became a Group Franchise Director of Sandré Philippines, Inc. concurrently with being a Group Supervisor of petitioner Avon. As Group Franchise Director, respondent Luna began selling and/or promoting Sandré products to other Avon employees and friends.

FR. JOAQUIN BERNAS, S.J.

Constitutional proscription against "reasonable restraint of trade or occupation." The pertinent provision of the Constitution is quoted hereunder. Section 19 of Article XII of the 1987 Constitution is relevant. First off, restraint of trade or occupation embraces acts, contracts, agreements or combinations which restrict competition or obstruct due course of trade. Now to the basics. From the wordings of the Constitution, truly then, what is brought about to lay the test on whether a given agreement constitutes an unlawful machination or combination in restraint of trade is whether under the particular circumstances of the case and the nature of the particular contract involved, such contract is, or is not, against public interest. Thus, restrictions upon trade may be upheld when not contrary to public welfare and not greater than is necessary to afford a fair and reasonable protection to the party in whose favor it is imposed. Even contracts which prohibit an employee from engaging in business in competition with the employer are not necessarily void for being in restraint of trade. In sum, contracts requiring exclusivity are not per se void. Each contract must be viewed vis-à-vis all the circumstances surrounding such agreement in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition. The question that now crops up is this, when is a restraint in trade unreasonable? Authorities are one in declaring that a restraint in trade is unreasonable when it is contrary to public policy or public welfare. Plainly put, public policy is that principle of the law which holds that no subject or citizen can lawfully do that which has a tendency to be injurious to the public or against the public good. As applied to contracts, in the absence of express legislation or constitutional prohibition, a court, in order to declare a contract void as against public policy, must find that the contract as to the consideration or thing to be done, has a tendency to injure the public, is against the public good, or contravenes some established interests of society, or is inconsistent with sound policy and good morals, or tends clearly to undermine the security of individual rights, whether of personal liability or of private property.

Issue: WON THE CA COMMITTED SERIOUS ERROR IN DECLARING THAT THE SUPERVISOR S AGREEMENT EXECUTED BETWEEN AVON AND RESPONDENT LUNA AS NULL AND VOID FOR BEING AGAINST PUBLIC POLICY?

From another perspective, the main objection to exclusive dealing is its tendency to foreclose existing competitors or new entrants from competition in the covered portion of the relevant market during the term of the agreement. Only those arrangements whose probable effect is to foreclose competition in a substantial share of the line of commerce affected can be considered as void for being against public policy. The foreclosure effect, if any, depends on the market share involved. The relevant market for this purpose includes the full range of selling opportunities reasonably open to rivals, namely, all the product and geographic sales they may readily compete for, using easily convertible plants and marketing organizations.

Held: At the crux of the issue is the validity of paragraph 5 of the Supervisor’s Agreement, viz: “The Company and the Supervisor mutually agree: xxx 5) That the Supervisor shall sell or offer to sell, display or promote only and exclusively products sold by the Company.” In business parlance, this is commonly termed as the "exclusivity clause." This is defined as agreements which prohibit the obligor from engaging in "business" in competition with the obligee. This exclusivity clause is more often the subject of critical scrutiny when it is perceived to collide with the

Applying the preceding principles to the case at bar, there is nothing invalid or contrary to public policy either in the objectives sought to be attained by paragraph 5, i.e., the exclusivity clause, in prohibiting respondent Luna, and all other Avon supervisors, from selling products other than those manufactured by petitioner Avon. We quote with approval the determination of the U.S. Supreme Court in the case of Board of Trade of Chicago v. U.S. that "the question to be determined is whether the restraint imposed is such as merely regulates and

In a letter, petitioner Avon notified respondent Luna of the termination or cancellation of her Supervisor’s Agreement with petitioner Avon. Aggrieved, respondent Luna filed a complaint for damages before the RTC. RTC rendered judgment in favor of respondent Luna.

JEN LAYGO 4D 2007

TRUTH. HONOR. EXCELLENCE.

84

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

FR. JOAQUIN BERNAS, S.J.

perhaps thereby promotes competition, or whether it is such as may suppress or even destroy competition." Such prohibition is neither directed to eliminate the competition like Sandré Phils., Inc. nor foreclose new entrants to the market. In its Memorandum, it admits that the reason for such exclusion is to safeguard the network that it has cultivated through the years. Admittedly, both companies employ the direct selling method in order to peddle their products. By direct selling, petitioner Avon and Sandre, the manufacturer, forego the use of a middleman in selling their products, thus, controlling the price by which they are to be sold. The limitation does not affect the public at all. It is only a means by which petitioner Avon is able to protect its investment. It was not by chance that Sandré Philippines, Inc. made respondent Luna one of its Group Franchise Directors. It doesn’t take a genius to realize that by making her an important part of its distribution arm, Sandré Philippines, Inc., a newly formed direct-selling business, would be saving time, effort and money as it will no longer have to recruit, train and motivate supervisors and dealers. Respondent Luna, who learned the tricks of the trade from petitioner Avon, will do it for them. This is tantamount to unjust enrichment. Worse, the goodwill established by petitioner Avon among its loyal customers will be taken advantaged of by Sandre Philippines, Inc. It is not so hard to imagine the scenario wherein the sale of Sandré products by Avon dealers will engender a belief in the minds of loyal Avon customers that the product that they are buying had been manufactured by Avon. In other words, they will be misled into thinking that the Sandré products are in fact Avon products. From the foregoing, it cannot be said that the purpose of the subject exclusivity clause is to foreclose the competition, that is, the entrance of Sandré products in to the market. Therefore, it cannot be considered void for being against public policy. How can the protection of one s property be violative of public policy? Sandré Philippines, Inc. is still very much free to distribute its products in the market but it must do so at its own expense. The exclusivity clause does not in any way limit its selling opportunities, just the undue use of the resources of petitioner Avon. It has been argued that the Supervisor’s Agreement is in the nature of a contract of adhesion; but just because it is does not necessarily mean that it is void. A contract of adhesion is socalled because its terms are prepared by only one party while the other party merely affixes his signature signifying his adhesion thereto. Such contract is just as binding as ordinary contracts. "It is true that we have, on occasion, struck down such contracts as void when the weaker party is imposed upon in dealing with the dominant bargaining party and is reduced to the alternative of taking it or leaving it, completely deprived of the opportunity to bargain on equal footing. Nevertheless, contracts of adhesion are not invalid per se and they are not entirely prohibited. The one who adheres to the contract is in reality free to reject it entirely, if he adheres, he gives his consent." In the case at bar, there was no indication that respondent Luna was forced to sign the subject agreement. Being of age, financially stable and with vast business experience, she is presumed to have acted with due care and to have signed the assailed contract with full knowledge of its import. Under the premises, it would be difficult to assume that she was morally abused. She was free to reject the agreement if she wanted to. 

JEN LAYGO 4D 2007

ARTICLE XIII - SOCIAL JUSTICE AND HUMAN RIGHTS Section 2. The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance. Doctrine A retirement plan imposing automatic retirement after 35 years of service before the statutory retirement age of 65 is valid if voluntarily entered into by the employee. Jaculbe v. Silliman U, GR 156934, March 16,2007. Digest JACULBE V. SILLIMAN U. Respondent, through its Human Resources Development Office, informed petitioner that she was approaching her 35th year of service with the university and was due for automatic retirement on November 18, 1993, at which time she would be 57 years old. This was pursuant to respondent’s retirement plan for its employees which provided that its members could be automatically retired "upon reaching the age of 65 or after 35 years of uninterrupted service to the university." Petitioner filed a complaint in the NLRC for "termination of service with preliminary injunction and/or restraining order." Thereafter, respondent compulsorily retired petitioner. Issue: did respondent’s retirement plan imposing automatic retirement after 35 years of service contravene the security of tenure clause in the 1987 Constitution and the Labor Code? Held: NO. Retirement plans allowing employers to retire employees who are less than the compulsory retirement age of 65 are not per se repugnant to the constitutional guaranty of security of tenure. Article 287 of the Labor Code provides: “ART. 287. Retirement - Any employee may be retired upon reaching the retirement age established in the collective bargaining agreement or other applicable employment contract.” By its express language, the Labor Code permits employers and employees to fix the applicable retirement age at below 60 years. However, after reviewing the assailed decision together with the rules and regulations of respondent’s retirement plan, we find that the plan runs afoul of the constitutional guaranty of security of tenure contained in Article XIII, also known as the provision on Social Justice and Human Rights. The CA held: “The records disclose that the private respondents Retirement Plan has been in effect for more than 30 years. The said plan is deemed integrated into the employment contract between private respondent and its employees as evidenced by the latter’s voluntary contribution through monthly salary deductions. Previous retirees have already enjoyed the benefits of the retirement plan, and ever since the said plan was effected, no questions or disagreement have been raised, until the same was made to apply to the petitioner.” The problem with this line of reasoning is that a perusal of the rules and regulations of the plan shows that participation therein was not voluntary at all. From the language of the retirement plan rules, the compulsory nature of both membership in and contribution to the plan

TRUTH. HONOR. EXCELLENCE.

85

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

debunked the CA’s theory that petitioner’s "voluntary contributions" were evidence of her willing participation therein. It was through no voluntary act of her own that petitioner became a member of the plan. In fact, the only way she could have ceased to be a member thereof was if she stopped working for respondent altogether. Furthermore, in the rule on contributions, the repeated use of the word "shall" ineluctably pointed to the conclusion that employees had no choice but to contribute to the plan (even when they were on leave). According to the assailed decision, respondent’s retirement plan "ha(d) been in effect for more than 30 years." What was not pointed out, however, was that the retirement plan came into being in 1970 or 12 years after petitioner started working for respondent. In short, it was not part of the terms of employment to which petitioner agreed when she started working for respondent. Neither did it become part of those terms shortly thereafter, as the CA would have us believe. Retirement is the result of a bilateral act of the parties, a voluntary agreement between the employer and the employee whereby the latter, after reaching a certain age agrees to sever his or her employment with the former. In Pantranco North Express, Inc. v. NLRC, to which both the CA and respondent refer, the imposition of a retirement age below the compulsory age of 65 was deemed acceptable because this was part of the CBA between the employer and the employees. The consent of the employees, as represented by their bargaining unit, to be retired even before the statutory retirement age of 65 was laid out clearly in black and white and was therefore in accord with Article 287. In this case, neither the CA nor the respondent cited any agreement, collective or otherwise, to justify the latter’s imposition of the early retirement age in its retirement plan, opting instead to harp on petitioner’s alleged "voluntary" contributions to the plan, which was simply untrue. The truth was that petitioner had no choice but to participate in the plan, given that the only way she could refrain from doing so was to resign or lose her job. It is axiomatic that employer and employee do not stand on equal footing, a situation which often causes an employee to act out of need instead of any genuine acquiescence to the employer. This was clearly just such an instance. As already stated, an employer is free to impose a retirement age less than 65 for as long as it has the employees’ consent. Stated conversely, employees are free to accept the employer’s offer to lower the retirement age if they feel they can get a better deal with the retirement plan presented by the employer. Thus, having terminated petitioner solely on the basis of a provision of a retirement plan which was not freely assented to by her, respondent was guilty of illegal dismissal.  LABOR Section 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to selforganization, collective bargaining and negotiations, and

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth. Doctrine Q. Does the policy of the employer banning spouses from working in the same company violate the rights of the employee under the Constitution and the Labor Code or is it a valid exercise of management prerogative? A. We employ the standard of reasonableness of the company policy which is parallel to the bona fide occupational qualification requirement. In the recent case of Duncan Association of Detailman-PTGWO and Pedro Tecson v. Glaxo Wellcome Philippines, Inc., we held that Glaxo had a right to guard its trade secrets, manufacturing formulas, marketing strategies and other confidential programs and information from competitors. We considered the prohibition against personal or marital relationships with employees of competitor companies upon Glaxo’s employees reasonable under the circumstances because relationships of that nature might compromise the interests of Glaxo. We do not find a reasonable business necessity in the case at bar. Petitioners’ sole contention that “the company did not just want to have two (2) or more of its employees related between the third degree by affinity and/or consanguinity” is lame. Star Corporation v. Ongsitco, G.R. No. 164774, April 12, 2006.

STAR CORPORATION V. ONGSITCO Whether the policy of the employer banning spouses from working in the same company violates the rights of the employee under the Constitution and the Labor Code or is a valid exercise of management prerogative. Issue: WON the policy/regulation is violative of the constitutional rights towards marriage and the family of employees and of Article 136 of the Labor Code? Held: YES. Respondents submit that their dismissal violates the above provision. Petitioners allege that its policy "may appear to be contrary to Article 136 of the Labor Code" but it assumes a new meaning if read together with the first paragraph of the rule. The rule does not require the woman employee to resign. The employee spouses have the right to choose who between them should resign. Further, they are free to marry persons other than co-employees. Hence, it is not the marital status of the employee, per se, that is being discriminated. It is only intended to carry out its no-employment-for-relatives-within-the-third-

TRUTH. HONOR. EXCELLENCE.

86

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

degree-policy which is within the ambit of the prerogatives of management. It is true that the policy of petitioners prohibiting close relatives from working in the same company takes the nature of an antinepotism employment policy. Companies adopt these policies to prevent the hiring of unqualified persons based on their status as a relative, rather than upon their ability. These policies focus upon the potential employment problems arising from the perception of favoritism exhibited towards relatives. With more women entering the workforce, employers are also enacting employment policies specifically prohibiting spouses from working for the same company. We note that two types of employment policies involve spouses: policies banning only spouses from working in the same company (no-spouse employment policies), and those banning all immediate family members, including spouses, from working in the same company (anti-nepotism employment policies). We note that since the finding of a bona fide occupational qualification justifies an employer’s no-spouse rule, the exception is interpreted strictly and narrowly by these state courts. There must be a compelling business necessity for which no alternative exists other than the discriminatory practice. To justify a bona fide occupational qualification, the employer must prove two factors: (1) that the employment qualification is reasonably related to the essential operation of the job involved; and, (2) that there is a factual basis for believing that all or substantially all persons meeting the qualification would be unable to properly perform the duties of the job. The concept of a bona fide occupational qualification is not foreign in our jurisdiction. We employ the standard of reasonableness of the company policy which is parallel to the bona fide occupational qualification requirement. In the recent case of Duncan Association of Detailman-PTGWO and Pedro Tecson v. Glaxo Wellcome Philippines, Inc., we passed on the validity of the policy of a pharmaceutical company prohibiting its employees from marrying employees of any competitor company. We held that Glaxo has a right to guard its trade secrets, manufacturing formulas, marketing strategies and other confidential programs and information from competitors. We considered the prohibition against personal or marital relationships with employees of competitor companies upon Glaxo’s employees reasonable under the circumstances because relationships of that nature might compromise the interests of Glaxo. In laying down the assailed company policy, we recognized that Glaxo only aims to protect its interests against the possibility that a competitor company will gain access to its secrets and procedures. The requirement that a company policy must be reasonable under the circumstances to qualify as a valid exercise of management prerogative was also at issue in the 1997 case of Philippine Telegraph and Telephone Company v. NLRC. In said case, the employee was dismissed in violation of petitioner’s policy of disqualifying from work any woman worker who contracts marriage. We held that the company policy violates the right against discrimination afforded all women workers under Article 136 of the Labor Code, but established a permissible exception, viz.: “[A] requirement that a woman employee must remain unmarried could be justified as a "bona fide occupational qualification," or BFOQ, where the particular

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

requirements of the job would justify the same, but not on the ground of a general principle, such as the desirability of spreading work in the workplace. A requirement of that nature would be valid provided it reflects an inherent quality reasonably necessary for satisfactory job performance.” The cases of Duncan and PT&T instruct us that the requirement of reasonableness must be clearly established to uphold the questioned employment policy. The employer has the burden to prove the existence of a reasonable business necessity. The burden was successfully discharged in Duncan but not in PT&T. We do not find a reasonable business necessity in the case at bar. Petitioners’ sole contention that "the company did not just want to have two (2) or more of its employees related between the third degree by affinity and/or consanguinity" is lame. That the second paragraph was meant to give teeth to the first paragraph of the questioned rule is evidently not the valid reasonable business necessity required by the law. It is significant to note that in the case at bar, respondents were hired after they were found fit for the job, but were asked to resign when they married a co-employee. Petitioners failed to show how the marriage of Simbol, then a Sheeting Machine Operator, to Alma Dayrit, then an employee of the Repacking Section, could be detrimental to its business operations. Neither did petitioners explain how this detriment will happen in the case of Wilfreda Comia, then a Production Helper in the Selecting Department, who married Howard Comia, then a helper in the cutter-machine. The policy is premised on the mere fear that employees married to each other will be less efficient. If we uphold the questioned rule without valid justification, the employer can create policies based on an unproven presumption of a perceived danger at the expense of an employee’s right to security of tenure.  AGRARIAN AND NATURAL RESOURCES REFORM Section 4. The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farmworkers who are landless, to own directly or collectively the lands they till or, in the case of other farmworkers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of all agricultural lands, subject to such priorities and reasonable retention limits as the Congress may prescribe, taking into account ecological, developmental, or equity considerations, and subject to the payment of just compensation. In determining retention limits, the State shall respect the right of small landowners. The State shall further provide incentives for voluntary land-sharing. Doctrines What lands are outside the coverage of CARL? A. Lands not devoted to agricultural activity are outside the coverage of CARL. These include lands previously converted to non-agricultural uses prior to the effectivity of CARL by government agencies other than respondent DAR. In its Revised Rules and Regulations Governing Conversion of Private Agricultural Lands to Non-Agricultural Uses, DAR itself defined "agricultural land" thus —

TRUTH. HONOR. EXCELLENCE.

87

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

x x x Agricultural lands refers to those devoted to agricultural activity as defined in R.A. 6657 and not classified as mineral or forest by the Department of Environment and Natural Resources (DENR) and its predecessor agencies, and not classified in town plans and zoning ordinances as approved by the Housing and Land Use Regulatory Board (HLURB) and its preceding competent authorities prior to 15 June 1988 for residential, commercial or industrial use. [The deliberations of the Constitutional Commission confirm this limitation. “Agricultural lands” are only those lands which are “arable and suitable agricultural lands” and “do not include commercial, industrial and residential lands.” ] Remman Enterprises v. C.A.,G.R. No. 132073, September 26, 2006 The challenge in this case was decided mainly by referring to the earlier Small Landowners case as stare decisis. Confederation of Sugar Producers v. DAR. GR 169514, March 30, 2007. REMMAN ENTERPRISES V. C.A. REMMAN is a private domestic corporation engaged in the business of developing subdivisions. On 17 August 1995, REMMAN filed with the Secretary of the Department of Agrarian Reform (DAR), through the Socialized Housing One-Stop Processing Center (SHOPC), an application for exemption from the coverage of the Comprehensive Agrarian Reform Program (CARP) over 17 parcels of land with a total land area of 46.9180 hectares located at Bo. San Jose, Dasmariñas, Cavite. Issue: Whether the subject parcels of land are exempted from the coverage of the CARP. Held: Republic Act No. 6657, otherwise referred to as the Comprehensive Agrarian Reform Law (CARL), was enacted as a piece of social legislation pursuant to the policy of the State to pursue a Comprehensive Agrarian Reform Program. It became effective on 15 June 1988. Section 4 thereof, specifies the lands covered by the CARP, thus: SECTION 4. Scope – The Comprehensive Agrarian Reform Law of 1988 shall cover, regardless of tenurial arrangement and commodity produced, all public and private agricultural lands as provided in Proclamation No. 131 and Executive Order No. 229, including other lands of the public domain suitable for agriculture.

More specifically, the following lands are covered by the Comprehensive Agrarian Reform Program: (a) All alienable and disposable lands of the public domain devoted to or suitable for agriculture. No reclassification of forest or mineral lands to agricultural lands shall be undertaken after the approval of this Act until Congress, taking into account ecological, developmental and equity considerations, shall have determined by law, the specific limits of the public domain; (b) All lands of the public domain in excess of the specific limits as determined by Congress in the preceding paragraph; (c) All other lands owned by the Government devoted to or suitable for agriculture; and (d) All private lands devoted to or suitable for agriculture regardless of the agricultural products raised or that can be raised thereon.

The exemption and exclusions of Republic Act No. 6657 are contained in Section 10 thereof, viz: SECTION 10. Exemptions and Exclusions – Lands actually, directly and exclusively used and found to be necessary for parks, wildlife, forest reserves, reforestration, fish sanctuaries and breeding grounds, watersheds and mangroves, national defense, school sites and campuses including experimental farm stations operated by public or private schools for educational purposes, seeds and seedlings research and pilot

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

production centers, church sites and convents appurtenant thereto, mosque sites and Islamic centers appurtenant thereto, communal burial grounds and cemeteries, penal colonies and penal farms actually worked by the inmates, government and private research and quarantine centers and all lands with eighteen percent (18%) slope and over, except those already developed shall be exempt from the coverage of this Act.

In the main, REMMAN hinges its application for exemption on the ground that the subject lands had ceased to be agricultural lands by virtue of the zoning classification by the Sangguniang Bayan of Dasmariñas, Cavite, and approved by the HSRC, specifying them as residential. As emphasized, the reclassification of lands to non-agricultural cannot be applied to defeat vested rights of tenant-farmers under Presidential Decree No. 27. In the case at bar, it appears on record that petitioners in were issued their respective emancipation patents on various dates. However, as was noted by the DAR Secretary in his Order of 5 June 1996, there is a pending action involving the subject parcels of land. The same action similarly involves the annulment of the Certificates of Land Transfer (CLT) and the emancipation patents issued to Eduardo Adriano. At any rate, DARAB Case No. IV-Ca. 0087-92, involves, inter alia, the validity of the emancipation patents issued to tenantfarmers, Eduardo Adriano, et al., who are the petitioners in G.R. No. 132361, and the private respondents in G.R. No. 132073. Inasmuch as the consolidated petitions before us raise the question of the exemption of the subject parcels of land from CARP, which parcels of land are similarly covered by existing emancipation patents, it behooves this Court to hold in abeyance the judgment on the propriety of the exemption sought by REMMAN, until after the issue as to the validity of the emancipation patents (which precisely cover most of the subject parcels of land) has been conclusively and finally determined. The issues are inextricably linked. We cannot decide on the question of exemption without causing a preemption on the question of the validity of the aforesaid emancipation patents. To ensure that our judgment on REMMAN’s application for exemption is complete, the parties, and especially, the tenantfarmers, Eduardo Adriano, et al., must be afforded due opportunity to ventilate their defenses in support of the emancipation patents issued in their names in the proceedings before the DARAB, in particular, DARAB Case No. IV-Ca. 008792. This is especially significant in light of the principles and policies behind the Comprehensive Agrarian Reform Law. Indeed, Section 2 of Republic Act No. 6657, pronounces in no uncertain terms that the welfare of the landless farmers and farmworkers will receive the highest consideration to promote social justice and to move the nation toward sound rural development and industrialization, and the establishment of owner cultivatorship of economic-size farms as the basis of Philippine agriculture.

CONFEDERATION OF SUGAR PRODUCERS V. DAR Confederation of Sugar Producers Association, Inc., et al. It seeks, inter alia, to enjoin the Department of Agrarian Reform, the Land Bank of the Philippines, and the Land Registration Authority from "subjecting the sugarcane farms of Petitioner Planters to eminent domain or compulsory acquisition without filing the necessary expropriation proceedings pursuant to the provisions of Rule 67 of the Rules of Court and/or without the

TRUTH. HONOR. EXCELLENCE.

88

THE WOMEN OF ALEITHEIA

POLITICAL LAW REVIEW application or conformity of farmworkers on said farms."

a majority of

the

regular

The petitioners assail the Court s Decision in Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform which affirmed the constitutionality of RA 6657. They describe the Decision as a "riddle wrapped in an enigma." They refer to pronouncements made therein that are allegedly inconsistent with its conclusion, i.e., affirming the validity of RA 6657, including paragraphs (d), (e) and (f) of Section 16. For example, while the Decision, citing EPZA, pronounced that "[t]o be sure, the determination of just compensation is a function addressed to the courts of justice and may not be usurped by any other branch or official of the government" and that "the determination made by the DAR is only preliminary unless accepted by all parties concerned," these pronouncements are allegedly irreconcilable with paragraphs (d) and (e) which allow the DAR, through summary administrative proceeding, "to take immediate possession of the land" and cause "the cancellation of the certificate of title of the landowner." Issue: WON RA6657 is constitutional? Held: YES. The validity of Section 16, including paragraphs (d), (e) and (f), of RA 6657, which sets forth the manner of acquisition of private agricultural lands and ascertainment of just compensation, has already been affirmed in Association of Small Landowners. Where the State itself is the expropriator, it is not necessary for it to make a deposit upon its taking possession of the condemned property, as "the compensation is a public charge, the good faith of the public is pledged for its payment, and all the resources of taxation may be employed in raising the amount." A reading of the aforecited Section 16(d) will readily show that it does not suffer from the arbitrariness that rendered the challenged decrees constitutionally objectionable. Although the proceedings are described as summary, the landowner and other interested parties are nevertheless allowed an opportunity to submit evidence on the real value of the property. But more importantly, the determination of the just compensation by the DAR is not by any means final and conclusive upon the landowner or any other interested party, for Section(f) clearly provides: “(f) Any party who disagrees with the decision may bring the matter to the court of proper jurisdiction for final determination of just compensation.” The determination made by the DAR is only preliminary unless accepted by all parties concerned. Otherwise, the courts of justice will still have the right to review with finality the said determination in the exercise of what is admittedly a judicial function. On the matter of when transfer of possession and ownership of the land to the Government is reckoned, Association of Small Landowners instructs: “The CARP Law, for its part, conditions the transfer of possession and ownership of the land to the government on receipt by the landowner of the corresponding payment or the deposit by the DAR of the compensation in cash or LBP bonds with an accessible bank. Until then, title also remains with the landowner. No outright change of ownership is contemplated either.” The foregoing disquisition is binding and applicable to the present case following the salutary doctrine of stare decisis et

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

non quieta movere which means "to adhere to precedents, and not to unsettle things which are established." Under the doctrine, when the Supreme Court has once laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are substantially the same; regardless of whether the parties and property are the same. The doctrine of stare decisis is based upon the legal principle or rule involved and not upon the judgment which results therefrom. In this particular sense stare decisis differs from res judicata which is based upon the judgment.  URBAN LAND REFORM AND HOUSING Section 9. The State shall, by law, and for the common good, undertake, in cooperation with the private sector, a continuing program of urban land reform and housing which will make available at affordable cost, decent housing and basic services to under-privileged and homeless citizens in urban centers and resettlement areas. It shall also promote adequate employment opportunities to such citizens. In the implementation of such program the State shall respect the rights of small property owners. Section 10. Urban or rural poor dwellers shall not be evicted nor their dwelling demolished, except in accordance with law and in a just and humane manner. No resettlement of urban or rural dwellers shall be undertaken without adequate consultation with them and the communities where they are to be relocated. Doctrine The due process guarantee cannot be invoked when no vested right has been acquired. The period during which petitioners occupied the lots, no matter how long, did not vest them with any right to claim ownership since it is a fundamental principle of law that acts of possessory character executed by virtue of license or tolerance of the owner, no matter how long, do not start the running of the period of acquisitive prescription. It bears recalling that BATAHAI was formed precisely to enable the Bagong Tanyag settlers, including petitioners, to purchase the lots they were occupying. The invocation of Article XIII, 9 & 10, does not help petitioners. Petitioners’ obstinancy in not complying with the BATAHAI and NHMFC requirements had delayed the release of the loan to BATAHAI to the detriment of the other BATAHAI members who, like petitioners, are also urban poor dwellers but who complied with the requirements and even agreed to be relocated in case the construction of roads for the common interest required the demolition of their houses or structures. To grant the petition would, instead of promoting, defeat social justice. Espinocilla et al. v Bagong Homeowners, G.R. No. 151019, August 9, 2007.

ESPINOCILLA ET AL. V BAGONG HOMEOWNERS Respondent corporation, the Bagong Tanyag Homeowners’ Association, Inc. (BATAHAI), was in 1989 incorporated to enable the occupants of the land owned by Fortune Development Corporation, Guillermo Tantuco, and Daniel

TRUTH. HONOR. EXCELLENCE.

89

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

Ignacio and located in Bagong Tanyag, Taguig to purchase the respective lots they were occupying under the Community Mortgage Program (CMP) of the National Home Mortgage Finance Corporation (NHMFC). Under the CMP, BATAHAI could obtain a loan from NHMFC to purchase the land from its owners and subdivide it among its member-beneficiaries, subject to the supervision and guidance of the National Housing Administration (NHA). In turn, each member-beneficiary would pay amortizations of the loan to BATAHAI. The BATAHAI Code of Policies (the Code) named as first priority beneficiaries the owners of houses or structures that were part of the census survey conducted in October 1984 in Bagong Tanyag and who were members of BATAHAI. The Code named as second priority beneficiaries members of BATAHAI who were part of the census survey as lessees or rent-free occupants (“nangungupahan na may bayad, nakikitira, o nakikisama”) of houses or structures in Bagong Tanyag. Under the Code, each beneficiary is entitled to only one lot, that on which his or her house or structure stands. Petitioners, however, wanted to claim the vacant lots adjacent to theirs on which vacant lots they planted crops or put up fences and other improvements. For failure to comply with the requirements, their applications were denied and they were removed from the list of prospective beneficiaries. Issue: WON the CA erred in not declaring the act of the respondents as contrary to the express mandate of Article XIII, Section 9 and 10 of the 1987 Constitution of the Philippines and the laws passed in relation thereto, particularly Republic Act No. 7279? Held: Petitioners invoke Article XIII and the social justice provisions of the Constitution. The invocation does not help their cause. Petitioners’ obstinancy in not complying with the BATAHAI and NHMFC requirements had delayed the release of the loan to BATAHAI to the detriment of the other BATAHAI members who, like petitioners, are also urban poor dwellers but who complied with the requirements and even agreed to be relocated in case the construction of roads for the common interest required the demolition of their houses or structures. To grant the petition would, instead of promoting, defeat social justice.  HUMAN RIGHTS Section 17. (1) There is hereby created an independent office called the Commission on Human Rights. (2) The Commission shall be composed of a Chairman and four Members who must be natural-born citizens of the Philippines and a majority of whom shall be members of the Bar. The term of office and other qualifications and disabilities of the Members of the Commission shall be provided by law. (3) Until this Commission is constituted, the existing Presidential Committee on Human Rights shall continue to exercise its present functions and powers. (4) The approved annual appropriations of the Commission shall be automatically and regularly released.

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

Doctrine Q. Does the Commission on Human Rights enjoy fiscal autonomy? A. No. Fiscal autonomy is given only to Commissions found in Article IX. The Commission on Human Rights is not of the same rank. CHR Employees v CHR, G.R. No. 155336, July 21, 2006. (NOTE: But see Section 17(4).) CHR EMPLOYEES V CHR Congress passed the General Appropriations Act of 1998. It provided for Special Provisions Applicable to All Constitutional Offices Enjoying Fiscal Autonomy. The last portion of Article XXXIII covers the appropriations of the CHR, authorizing the same to formulate and implement the organizational structures of their respective offices to fix and determine the salaries, allowances and other benefits of their respective personnel and whenever public interest so requires, make adjustments in the personnel services itemization including, but not limited to, the transfer of item or creation of new positions in their respective offices: PROVIDED, That officers and employees whose positions are affected by such reorganization or adjustments shall be granted retirement gratuities and separation pay in accordance with existing laws, which shall be payable from any unexpanded balance of, or savings in the appropriations of their respective offices. By virtue of such law, the CHR issued its own scheme, upgrading and augmenting the commensurate amount generated from savings under Personal Services. Annexed to said resolution is the proposed creation of ten additional plantilla positions. CHR then issued Resolution No. A98-055 providing for the upgrading or raising of salary grade of some positions in the Commission. The CHR forwarded said staffing modification and upgrading scheme to the Department of Budget and Management [DBM] with a request for its approval, but the DBM secretary Benjamin Diokno denied the request. It was further held that “being a member of the fiscal autonomy group does not vest the agency with the authority to reclassify, upgrade, and create positions without approval of the DBM. While the members of the Group are authorized to formulate and implement the organizational structures of their respective offices and determine the compensation of their personnel, such authority is not absolute and must be exercised within the parameters of the Unified Position Classification and Compensation System established under RA 6758 more popularly known as the Compensation Standardization Law. We therefore reiterate our previous stand on the matter.” In light of the DBM’s disapproval of the proposed personnel modification scheme, the CSC-National Capital Region Office, through a memorandum recommended to the CSC-Central Office that the subject appointments be rejected owing to the DBM’s disapproval of the plantilla reclassification. Meanwhile, the officers of petitioner Commission on Human Rights Employees’ Association [CHREA], in representation of the rank and file employees of the CHR, requested the CSCCentral office to affirm the recommendation of the CSCRegional Office. CHREA stood its ground in saying that the DBM is the only agency with appropriate authority mandated by

TRUTH. HONOR. EXCELLENCE.

90

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

law to evaluate and approve matters of reclassification and upgrading, as well as creation of positions. Issue: Does the Commission on Human Rights enjoy fiscal autonomy? Held: NO. Constitutional commissions are granted fiscal autonomy by the 1987 Constitution in Article IX, Part A, Section 5, a provision applied in common to all constitutional commissions. The Office of the Ombudsman enjoys fiscal autonomy by virtue of Article XI, Section 14, of the 1987 Constitution. Each of the afore-quoted provisions consists of two sentences stating that: (1) The government entity shall enjoy fiscal autonomy; and (2) its approved annual appropriation shall be automatically and regularly released. The respondent anchors its claim to fiscal autonomy on the fourth paragraph of Article XIII, Section 17, according to wit: “(4) The approved annual appropriations of the Commission shall be automatically and regularly released.” As compared to the previously quoted Article VIII, Section 3; Article IX, Part A, Section 5; and Article XI, Section 14 of the 1987 Constitution on the Judiciary, the constitutional commissions, and the Office of the Ombudsman, respectively, Article XIII, Section 17(4) on the Commission of Human Rights (CHR) evidently does not contain the first sentence on the express grant of fiscal autonomy, and reproduces only the second sentence on the automatic and regular release of its approved annual appropriations. Question now arises as to the significance of such a difference in the way the said provisions are worded. To settle this ambiguity, a perusal of the records of the Constitutional Commission (ConCom) is enlightening. After reviewing the deliberations of the ConCom on Article XIII, Section 17(4), of the 1987 Constitution, in its entirety, not just bits and pieces thereof, this Court is convinced that the ConCom had intended to grant to the respondent the privilege of having its approved annual appropriations automatically and regularly released, but nothing more. While it may be conceded that the automatic and regular release of approved annual appropriations is an aspect of fiscal autonomy, it is just one of many others. This Court has already defined the scope and extent of fiscal autonomy in the case of Bengzon v. Drilon, as follows- “As envisioned in the Constitution, the fiscal autonomy enjoyed by the Judiciary, the Civil Service Commission, the Commission on Audit, the Commission on Elections, and the Office of the Ombudsman contemplates a guarantee of full flexibility to allocate and utilize their resources with the wisdom and dispatch that their needs require. It recognizes the power and authority to levy, assess and collect fees, fix rates of compensation not exceeding the highest rates authorized by law for compensation and pay plans of the government and allocate and disburse such sums as may be provided by law or prescribed by them in the course of the discharge of their functions. Fiscal autonomy means freedom from outside control.” The foregoing excerpt sufficiently elucidates that the grant of fiscal autonomy is more extensive than the mere automatic and regular release of approved annual appropriations of the government entity. It is also worth stressing herein that in Bengzon v. Drilon, this Court, ruling En Banc, only recognized

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

the fiscal autonomy of the Judiciary; the constitutional commissions, namely, the Civil Service Commission, the Commission on Audit, and the Commission on Elections; and the Office of the Ombudsman. Respondent is conspicuously left out of the enumeration. On the main issue of whether or not the approval by the DBM is a condition precedent to the enactment of an upgrading, reclassification, creation and collapsing of plantilla positions in the CHR, this Court staunchly holds that as prescinding from the legal and jurisprudential yardsticks discussed in length in the assailed Decision, the imprimatur of the DBM must first be sought prior to implementation of any reclassification or upgrading of positions in government. Regardless of whether or not respondent enjoys fiscal autonomy, this Court shares the stance of the DBM that the grant of fiscal autonomy notwithstanding, all government offices must, all the same, kowtow to the Salary Standardization Law. This Court is of the same mind with the DBM on its standpoint, thus: “Being a member of the fiscal autonomy group does not vest the agency with the authority to reclassify, upgrade, and create positions without approval of the DBM. While the members of the Group are authorized to formulate and implement the organizational structures of their respective offices and determine the compensation of their personnel, such authority is not absolute and must be exercised within the parameters of the Unified Position Classification and Compensation System established under RA 6758 more popularly known as the Compensation Standardization Law.”  ARTICLE XIV - EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE AND SPORTS EDUCATION Section 1. The State shall protect and promote the right of all citizens to quality education at all levels, and shall take appropriate steps to make such education accessible to all. Doctrine The Constitution itself does not establish the parameters of state protection to marriage as a social institution and the foundation of the family. It remains the province of the legislature to define all legal aspects of marriage and prescribe the strategy and the modalities to protect it, based on whatever socio-political influences it deems proper. While it may appear that the judicial denial of a petition for declaration of nullity is reflective of the constitutional mandate to protect marriage, such action in fact merely enforces a statutory definition of marriage, not a constitutionally ordained decree of what marriage is. Indeed, if circumstances warrant, Sections 1 and 2 of Article XV need not be the only constitutional considerations to be taken into account in resolving a petition for declaration of nullity. Antonio v Reyes, G.R. No. 155800, March 10. ANTONIO V REYES Petitioner and respondent married in 1990. Petitioner filed a petition to have his marriage to respondent declared null and void. He anchored his petition for nullity on Article 36 of the

TRUTH. HONOR. EXCELLENCE.

91

POLITICAL LAW REVIEW Family Code incapacitated marriage. He the time their the present.

THE WOMEN OF ALEITHEIA

alleging that respondent was psychologically to comply with the essential obligations of asserted that respondent’s incapacity existed at marriage was celebrated and still subsists up to

As manifestations of respondent’s alleged psychological incapacity, petitioner claimed that respondent persistently lied about herself, the people around her, her occupation, income, educational attainment and other events or things, to wit: (1) She concealed the fact that she previously gave birth to an illegitimate son, and instead introduced the boy to petitioner as the adopted child of her family. She only confessed the truth about the boy s parentage when petitioner learned about it from other sources after their marriage. (2) She fabricated a story that her brother-in-law, Edwin David, attempted to rape and kill her when in fact, no such incident occurred. (3) She misrepresented herself as a psychiatrist to her obstetrician, Dr. Consuelo Gardiner, and told some of her friends that she graduated with a degree in psychology, when she was neither. (4) She claimed to be a singer or a free-lance voice talent affiliated with Blackgold Recording Company (Blackgold); yet, not a single member of her family ever witnessed her alleged singing activities with the group. In the same vein, she postulated that a luncheon show was held at the Philippine Village Hotel in her honor and even presented an invitation to that effect but petitioner discovered per certification by the Director of Sales of said hotel that no such occasion had taken place. (5) She invented friends named Babes Santos and Via Marquez, and under those names, sent lengthy letters to petitioner claiming to be from Blackgold and touting her as the "number one moneymaker" in the commercial industry worth P2 million. Petitioner later found out that respondent herself was the one who wrote and sent the letters to him when she admitted the truth in one of their quarrels. He likewise realized that Babes Santos and Via Marquez were only figments of her imagination when he discovered they were not known in or connected with Blackgold. (6) She represented herself as a person of greater means, thus, she altered her payslip to make it appear that she earned a higher income. She bought a sala set from a public market but told petitioner that she acquired it from a famous furniture dealer. She spent lavishly on unnecessary items and ended up borrowing money from other people on false pretexts. (7) She exhibited insecurities and jealousies over him to the extent of calling up his officemates to monitor his whereabouts. When he could no longer take her unusual behavior, he separated from her in August 1991. He tried to attempt a reconciliation but since her behavior did not change, he finally left her for good in November 1991.

Taking exception to the appellate court’s pronouncement, petitioner elevated the case to this Court. He contends herein that the evidence conclusively establish respondent’s psychological incapacity. Held: Now is also opportune time to comment on another common legal guide utilized in the adjudication of petitions for declaration of nullity under Article 36. All too frequently, this Court and lower courts, in denying petitions of the kind, have favorably cited Sections 1 and 2, Article XV of the Constitution, which respectively state that "[t]he State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total developmen[t]," and that "[m]arriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State." These provisions highlight the importance of the family and the constitutional protection accorded to the institution of marriage. But the Constitution itself does not establish the parameters of state protection to marriage as a social institution and the foundation of the family. It remains the province of the legislature to define all legal aspects of marriage and prescribe the strategy and the modalities to protect it, based on whatever socio-political influences it deems proper, and subject of course to the qualification that such legislative enactment itself adheres to the Constitution and the Bill of Rights. This being the case, it

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

also falls on the legislature to put into operation the constitutional provisions that protect marriage and the family. This has been accomplished at present through the enactment of the Family Code, which defines marriage and the family, spells out the corresponding legal effects, imposes the limitations that affect married and family life, as well as prescribes the grounds for declaration of nullity and those for legal separation. While it may appear that the judicial denial of a petition for declaration of nullity is reflective of the constitutional mandate to protect marriage, such action in fact merely enforces a statutory definition of marriage, not a constitutionally ordained decree of what marriage is. Indeed, if circumstances warrant, Sections 1 and 2 of Article XV need not be the only constitutional considerations to be taken into account in resolving a petition for declaration of nullity.  ARTICLE XVI - GENERAL PROVISIONS Section 6. The State shall establish and maintain one police force, which shall be national in scope and civilian in character, to be administered and controlled by a national police commission. The authority of local executives over the police units in their jurisdiction shall be provided by law. Doctrines From the foregoing, it appears clear to us that the INP was never, as posited by the petitioners, abolished or terminated out of existence by R.A. No. 6975. For sure, nowhere in R.A. No. 6975 does the words “abolish” or “terminate” appear in reference to the INP. Instead, what the law provides is for the “absorption,” “transfer,” and/or “merger” of the INP, as well as the other offices comprising the PC-INP, with the PNP. To “abolish” is to do away with, to annul, abrogate or destroy completely; to “absorb” is to assimilate, incorporate or to take in. “Merge” means to cause to combine or unite to become legally absorbed or extinguished by merger while “transfer” denotes movement from one position to another. Clearly, “abolition” cannot be equated with “absorption.” With the conclusion herein reached that the INP was not in fact abolished but was merely transformed to become the PNP, members of the INP which include the herein respondents are, therefore, not excluded from availing themselves of the retirement benefits accorded to PNP retirees under Sections 74 and 75 of R.A. No. 6975, as amended by R.A. No. 8551. It may be that respondents were no longer in the government service at the time of the enactment of R.A. No. 6975. This fact, however, without more, would not pose as an impediment to the respondents’ entitlement to the new retirement scheme set forth under the aforecited sections. Department of Budget v. Manila’s Finest, GTR 169466, May 9, 2007.

DEPARTMENT OF BUDGET V. MANILA’S FINEST PD765 was issued constituting the Integrated National Police (INP) to be composed of the Philippine Constabulary (PC) as the nucleus and the integrated police forces as components thereof. Complementing P.D. No. 765 was P.D. No. 1184 issued

TRUTH. HONOR. EXCELLENCE.

92

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

to professionalize the INP and promote career development therein. RA6975, referred to as PNP Law, was enacted. Under Section 23 of said law, the PNP would initially consist of the members of the INP, created under P.D. No. 765, as well as the officers and enlisted personnel of the PC. Later, RA6975 was amended by R.A. No. 8551, otherwise known as the "PHILIPPINE NATIONAL POLICE REFORM AND REORGANIZATION ACT OF 1998." Among other things, the amendatory law reengineered the retirement scheme in the police organization. Relevantly, PNP personnel, under the new law, stood to collect more retirement benefits than what INP members of equivalent rank, who had retired under the INP Law, received. Hence, all INP retirees filed a petition for declaratory relief. The petition alleged in gist that INP retirees were equally situated as the PNP retirees but whose retirement benefits prior to the enactment of R.A. No. 6975, as amended by R.A. No. 8551, were unconscionably and arbitrarily excepted from the higher rates and adjusted benefits accorded to the PNP retirees. RTC held that the INP Retirees entitled to the same or identical retirement benefits and such other benefits being granted, accorded and bestowed upon the PNP Retirees under the PNP Law (RA No. 6975, as amended). Issue: WON CA ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT NOTWITHSTANDING THAT IT IS CONTRARY TO LAW AND ESTABLISHED JURISPRUDENCE. Held: NO. In the main, it is petitioners’ posture that R.A. No. 6975 clearly abolished the INP and created in its stead a new police force, the PNP. Prescinding therefrom, petitioners contend that since the PNP is an organization entirely different from the INP, it follows that INP retirees never became PNP members. Ergo, they cannot avail themselves of the retirement benefits accorded to PNP members under R.A. No. 6975 and its amendatory law, R.A. No. 8551. The INP was never, as posited by the petitioners, abolished or terminated out of existence by R.A. No. 6975. For sure, nowhere in R.A. No. 6975 does the words "abolish" or "terminate" appear in reference to the INP. Instead, what the law provides is for the "absorption," "transfer," and/or "merger" of the INP, as well as the other offices comprising the PC-INP, with the PNP. To "abolish" is to do away with, to annul, abrogate or destroy completely; to "absorb" is to assimilate, incorporate or to take in. "Merge" means to cause to combine or unite to become legally absorbed or extinguished by merger while "transfer" denotes movement from one position to another. Clearly, "abolition" cannot be equated with "absorption." True it is that Section 90 of R.A. No. 6975 speaks of the INP "[ceasing] to exist" upon the effectivity of the law. It ought to be stressed, however, that such cessation is but the logical consequence of the INP being absorbed by the PNP. Far from being abolished then, the INP, at the most, was merely transformed to become the PNP, minus of course its military character and complexion. By removing the police force from under the control and supervision of military officers, the bill seeks to restore and underscore the civilian character of police work - an otherwise universal concept that was muddled up by the martial law years.

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

Indeed, were the legislative intent was for the INP’s abolition such that nothing would be left of it, the word "abolish" or what passes for it could have easily found its way into the very text of the law itself, what with the abundant use of the word during the legislative deliberations. But as can be gleaned from said deliberations, the lawmakers’ concern centered on the fact that if the entire PC-INP corps join the PNP, then the PC-INP will necessarily be abolished, for who then would be its members? Of more consequence, the lawmakers were one in saying that there should never be two national police agencies at the same time. With the conclusion herein reached that the INP was not in fact abolished but was merely transformed to become the PNP, members of the INP which include the herein respondents are, therefore, not excluded from availing themselves of the retirement benefits accorded to PNP retirees under Sections 74 and 75 of R.A. No. 6975, as amended by R.A. No. 8551. It may be that respondents were no longer in the government service at the time of the enactment of R.A. No. 6975. This fact, however, without more, would not pose as an impediment to the respondents’ entitlement to the new retirement scheme set forth under the aforecited sections. As correctly ratiocinated by the CA to which we are in full accord: For sure, R.A. No. 6975 was not a retroactive statute since it did not impose a new obligation to pay the INP retirees the difference between what they received when they retired and what would now be due to them after R.A. No. 6975 was enacted. Even so, that did not render the RTC’s interpretation of R.A. No. 6975 any less valid. The [respondents’] retirement prior to the passage of R.A. No. 6975 did not exclude them from the benefits provided by R.A. No. 6975, as amended by R.A. No. 8551, since their membership in the INP was an antecedent fact that nonetheless allowed them to avail themselves of the benefits of the subsequent laws. R.A. No. 6975 considered them as PNP members, always referring to their membership and service in the INP in providing for their retirement benefits.  ARTICLE XVII AMENDMENTS OR REVISIONS Section 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right. Doctrine There is as yet no law authorizing constitutional amendment by initiative and referendum. Even if there were, the authenticity of the signatures still have to be verified. Lambino v. Comelec, G.R. No. 174153October 25, 2006. Puno dissents. Affirmed in Resolution, November 2, 2006.

TRUTH. HONOR. EXCELLENCE.

93

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

LAMBINO V. COMELEC "Lambino Group," with other groups and individuals, commenced gathering signatures for an initiative petition to change the 1987 Constitution. The Group filed a petition with the COMELEC to hold a plebiscite that will ratify their initiative petition under Section 5(b) and (c) and Section 7 of Republic Act No. 6735 or the Initiative and Referendum Act ("RA 6735"). Issue: Whether the Lambino Group's initiative petition complies with Section 2, Article XVII of the Constitution on amendments to the Constitution through a people's initiative. Held: NO. The Lambino Group miserably failed to comply with the basic requirements of the Constitution for conducting a people's initiative. Thus, there is even no need to revisit Santiago, as the present petition warrants dismissal based alone on the Lambino Group's glaring failure to comply with the basic requirements of the Constitution. For following the Court's ruling in Santiago, no grave abuse of discretion is attributable to the Commision on Elections. The Initiative Petition Does Not Comply with Section 2, Article XVII of the Constitution on Direct Proposal by the People The deliberations of the Constitutional Commission vividly explain the meaning of an amendment "directly proposed by the people through initiative upon a petition.” Clearly, the framers of the Constitution intended that the "draft of the proposed constitutional amendment" should be "ready and shown" to the people "before" they sign such proposal. The framers plainly stated that "before they sign there is already a draft shown to them." The framers also "envisioned" that the people should sign on the proposal itself because the proponents must "prepare that proposal and pass it around for signature." The essence of amendments "directly proposed by the people through initiative upon a petition" is that the entire proposal on its face is a petition by the people. This means two essential elements must be present. First, the people must author and thus sign the entire proposal. No agent or representative can sign on their behalf. Second, as an initiative upon a petition, the proposal must be embodied in a petition. These essential elements are present only if the full text of the proposed amendments is first shown to the people who express their assent by signing such complete proposal in a petition. Thus, an amendment is "directly proposed by the people through initiative upon a petition" only if the people sign on a petition that contains the full text of the proposed amendments. The full text of the proposed amendments may be either written on the face of the petition, or attached to it. If so attached, the petition must state the fact of such attachment. This is an assurance that every one of the several millions of signatories to the petition had seen the full text of the proposed amendments before signing. Otherwise, it is physically impossible, given the time constraint, to prove that every one of the millions of signatories had seen the full text of the proposed amendments before signing. The framers of the Constitution directly borrowed the concept of people's initiative from the United States where various State constitutions incorporate an initiative clause. In almost all States which allow initiative petitions, the unbending requirement is that

JEN LAYGO 4D 2007

FR. JOAQUIN BERNAS, S.J.

the people must first see the full text of the proposed amendments before they sign to signify their assent, and that the people must sign on an initiative petition that contains the full text of the proposed amendments. Moreover, "an initiative signer must be informed at the time of signing of the nature and effect of that which is proposed" and failure to do so is "deceptive and misleading" which renders the initiative void. Section 2, Article XVII of the Constitution does not expressly state that the petition must set forth the full text of the proposed amendments. However, the deliberations of the framers of our Constitution clearly show that the framers intended to adopt the relevant American jurisprudence on people's initiative. In particular, the deliberations of the Constitutional Commission explicitly reveal that the framers intended that the people must first see the full text of the proposed amendments before they sign, and that the people must sign on a petition containing such full text. Indeed, Section 5(b) of Republic Act No. 6735, the Initiative and Referendum Act that the Lambino Group invokes as valid, requires that the people must sign the "petition x x x as signatories." The Initiative Violates Section 2, Article XVII of the Constitution Disallowing Revision through Initiatives A people's initiative to change the Constitution applies only to an amendment of the Constitution and not to its revision. In contrast, Congress or a constitutional convention can propose both amendments and revisions to the Constitution. Article XVII of the Constitution speaks of three modes of amending the Constitution. The first mode is through Congress upon three-fourths vote of all its Members. The second mode is through a constitutional convention. The third mode is through a people's initiative. Section 1 of Article XVII, referring to the first and second modes, applies to "[A]ny amendment to, or revision of, this Constitution." In contrast, Section 2 of Article XVII, referring to the third mode, applies only to "[A]mendments to this Constitution." This distinction was intentional as shown by the deliberations of the Constitutional Commission. The framers of the Constitution intended, and wrote, a clear distinction between "amendment" and "revision" of the Constitution. The framers intended, and wrote, that only Congress or a constitutional convention may propose revisions to the Constitution. The framers intended, and wrote, that a people's initiative may propose only amendments to the Constitution. Where the intent and language of the Constitution clearly withhold from the people the power to propose revisions to the Constitution, the people cannot propose revisions even as they are empowered to propose amendments. Similarly, in this jurisdiction there can be no dispute that a people's initiative can only propose amendments to the Constitution since the Constitution itself limits initiatives to amendments. There can be no deviation from the constitutionally prescribed modes of revising the Constitution. A popular clamor, even one backed by 6.3 million signatures, cannot justify a deviation from the specific modes prescribed in the Constitution itself. The question is, does the Lambino Group's initiative constitute an amendment or revision of the Constitution? If the Lambino Group's initiative constitutes a revision, then the present petition

TRUTH. HONOR. EXCELLENCE.

94

POLITICAL LAW REVIEW

THE WOMEN OF ALEITHEIA

FR. JOAQUIN BERNAS, S.J.

should be dismissed for being outside the scope of Section 2, Article XVII of the Constitution.

Constitution. Merging the legislative and executive branches is a radical change in the structure of government.

Courts have long recognized the distinction between an amendment and a revision of a constitution. One of the earliest cases that recognized the distinction described the fundamental difference in this manner: “[T]he very term "constitution" implies an instrument of a permanent and abiding nature, and the provisions contained therein for its revision indicate the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a like permanent and abiding nature. On the other hand, the significance of the term "amendment" implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.”

The abolition alone of the Office of the President as the locus of Executive Power alters the separation of powers and thus constitutes a revision of the Constitution. Likewise, the abolition alone of one chamber of Congress alters the system of checksand-balances within the legislature and constitutes a revision of the Constitution.

Revision broadly implies a change that alters a basic principle in the constitution, like altering the principle of separation of powers or the system of checks-and-balances. There is also revision if the change alters the substantial entirety of the constitution, as when the change affects substantial provisions of the constitution. On the other hand, amendment broadly refers to a change that adds, reduces, or deletes without altering the basic principle involved. Revision generally affects several provisions of the constitution, while amendment generally affects only the specific provision being amended. In California where the initiative clause allows amendments but not revisions to the constitution just like in our Constitution, courts have developed a two-part test: the quantitative test and the qualitative test. The quantitative test asks whether the proposed change is "so extensive in its provisions as to change directly the 'substantial entirety' of the constitution by the deletion or alteration of numerous existing provisions." The court examines only the number of provisions affected and does not consider the degree of the change. The qualitative test inquires into the qualitative effects of the proposed change in the constitution. The main inquiry is whether the change will "accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision." Whether there is an alteration in the structure of government is a proper subject of inquiry. Thus, "a change in the nature of [the] basic governmental plan" includes "change in its fundamental framework or the fundamental powers of its Branches." A change in the nature of the basic governmental plan also includes changes that "jeopardize the traditional form of government and the system of check and balances." Under both the quantitative and qualitative tests, the Lambino Group's initiative is a revision and not merely an amendment. Quantitatively, the Lambino Group's proposed changes overhaul two articles - Article VI on the Legislature and Article VII on the Executive - affecting a total of 105 provisions in the entire Constitution. Qualitatively, the proposed changes alter substantially the basic plan of government, from presidential to parliamentary, and from a bicameral to a unicameral legislature. A change in the structure of government is a revision of the Constitution, as when the three great co-equal branches of government in the present Constitution are reduced into two. This alters the separation of powers in the Constitution. A shift from the present Bicameral-Presidential system to a Unicameral-Parliamentary system is a revision of the

JEN LAYGO 4D 2007

By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a Unicameral-Parliamentary system, involving the abolition of the Office of the President and the abolition of one chamber of Congress, is beyond doubt a revision, not a mere amendment. On the face alone of the Lambino Group's proposed changes, it is readily apparent that the changes will radically alter the framework of government as set forth in the Constitution. Father Joaquin Bernas, S.J., a leading member of the Constitutional Commission, writes: “An amendment envisages an alteration of one or a few specific and separable provisions. The guiding original intention of an amendment is to improve specific parts or to add new provisions deemed necessary to meet new conditions or to suppress specific portions that may have become obsolete or that are judged to be dangerous. In revision, however, the guiding original intention and plan contemplates a re-examination of the entire document, or of provisions of the document which have over-all implications for the entire document, to determine how and to what extent they should be altered. Thus, for instance a switch from the presidential system to a parliamentary system would be a revision because of its over-all impact on the entire constitutional structure. So would a switch from a bicameral system to a unicameral system be because of its effect on other important provisions of the Constitution.” Since a revision of a constitution affects basic principles, or several provisions of a constitution, a deliberative body with recorded proceedings is best suited to undertake a revision. A revision requires harmonizing not only several provisions, but also the altered principles with those that remain unaltered. Thus, constitutions normally authorize deliberative bodies like constituent assemblies or constitutional conventions to undertake revisions. On the other hand, constitutions allow people's initiatives, which do not have fixed and identifiable deliberative bodies or recorded proceedings, to undertake only amendments and not revisions. The irreconcilable inconsistency envisioned in the proposed Section 2 of the Transitory Provisions is not between a provision in Article VI of the 1987 Constitution and a provision in the proposed changes. The inconsistency is between a provision in Article VI of the 1987 Constitution and the "Parliamentary system of government," and the inconsistency shall be resolved in favor of a "unicameral parliamentary form of government." DISSENTING OPINION - PUNO, J.: • The doctrine of stare decisis does not bar the reexamination of Santiago. • A reexamination of R.A. 6735 will show that it is sufficient to implement the people's initiative.

TRUTH. HONOR. EXCELLENCE.

95

POLITICAL LAW REVIEW









THE WOMEN OF ALEITHEIA

FR. JOAQUIN BERNAS, S.J.

o First. The text of R.A. 6735 is replete with references to the right of the people to initiate changes to the Constitution. o Second. The legislative history of R.A. 6735 also reveals the clear intent of the lawmakers to use it as the instrument to implement people's initiative. o Third. The sponsorship speeches by the authors of R.A. 6735 similarly demonstrate beyond doubt this intent. In his sponsorship remarks, the late Senator Raul Roco (then a Member of the House of Representatives) emphasized the intent to make initiative as a mode whereby the people can propose amendments to the Constitution. The proposed constitutional changes, albeit substantial, are mere amendments and can be undertaken through people's initiative. The argument that the people through initiative cannot propose substantial amendments to change the Constitution turns sovereignty on its head. At the very least, the submission constricts the democratic space for the exercise of the direct sovereignty of the people. It also denigrates the sovereign people who they claim can only be trusted with the power to propose "simple" but not "substantial" amendments to the Constitution. According to Sinco, the concept of sovereignty should be strictly understood in its legal meaning as it was originally developed in law. Legal sovereignty, he explained, is "the possession of unlimited power to make laws. Its possessor is the legal sovereign. It implies the absence of any other party endowed with legally superior powers and privileges. It is not subject to law 'for it is the author and source of law.' Legal sovereignty is thus the equivalent of legal omnipotence." At the very least, the power to propose substantial amendments to the Constitution is shared with the people. We should accord the most benign treatment to the sovereign power of the people to propose substantial amendments to the Constitution especially when the proposed amendments will adversely affect the interest of some members of Congress. A contrary approach will suborn the public weal to private interest and worse, will enable Congress (the delegate) to frustrate the power of the people to determine their destiny (the principal). All told, the teaching of the ages is that constitutional clauses acknowledging the right of the people to exercise initiative and referendum are liberally and generously construed in favor of the people. Initiative and referendum powers must be broadly construed to maintain maximum power in the people. We followed this orientation in Subic Bay Metropolitan Authority v. Commission on Elections. There is not an iota of reason to depart from it.  - end -

JEN LAYGO 4D 2007

TRUTH. HONOR. EXCELLENCE.

96

View more...

Comments

Copyright © 2017 KUPDF Inc.
SUPPORT KUPDF