Sandoval - Political Law & Public International Law Notes (2018)

PROF. EDWIN R. SANDOVAL

Notes and Cases POLITICAL LAW AND PUBLIC INTERNATIONAL LAW  Attorne y EDWIN REY SANDOVAL SA NDOVAL January 16 - July 28, 28, 2017  August  Aug ust 6, 2017  April 20, 2018 201 8 POLITICAL LAW THE CONSTITUTION CONSTITUTION The Doctrine Doctrine o f Constitutional Supremacy Under the doctrine o f constitutional constitutional supremacy, if supremacy, if a law or of the Constitution, that law or contract, whether promulgated executive branch or entered into by private persons for private without any force and and effect effect.. Thus, since since the Con stitu tio ns and supreme law of the nation, it is deemed written in evew s Prince Ho tel v. GSIS, GSIS, 267 SCRA 408 [199 7] [Bellos ttlo]) Self-executing Self-executing and Non-self-executing Non-self-executing P rovisior 

any norm ve or by the and void and  jaitfental, paramount paramou nt contract. (Manila

ie Constitution

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

C o ^ i l u t io io n a re p r e s u m ed ed to to be be Se Se lf - e x e c u t in g

nless iVis §xpressly provided that a legislative act is necessary to enforce a constituftenal constituftenal rmr oa te , the presumption now is that all all provisions are self-executing. self-executing. If the nstitution^L^rovisions are treated as requiring legislation instead of self-executing, the ould have the power to ignore and practically nullify the mandate of the ital ital law. law. This can be cataclysmic. (Manila Prince Hotel v. GSIS, 267 SCRA 408 [Bellosillo])

 AMEN DMENT S OR REVISION (Article XVII, XVII, 1987 1987 Co nstitution ) Ways Ways o f Proposing Amendments o r Revision  Address: Un it 2 ,4th Floor, Espaf Espaffa fa Place Place Building, 1139 Adelina S treet cor ner Espana Espana Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.villasislawcenter.com  / www.facebook.com/vil www.facebook.com/villasislawcent lasislawcenter er / www.remediallawdoctrine www.remediallawdoctrines.bloesDo s.bloesDot.com t.com [email protected] / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

First: Congress First:  Congress may directly propose amendments or revision by three-fourths vote of all its members. In such a case, Congres s will not be acting as a legislative bo dy but rather, as a constituent assembly - a non-legislative function of Congress. Second:  Second:  through a Constitutional Convention. A constitutional convention is convention is a body separate and distinct from that o f the Congress itself whose members shall be elected by th th people of their respective districts. districts. Third: through Third: through People’s Initiative. People’s initiative on the Constitution is done through a petition, but^ have to be signed by at least twelve ( 12) per cent of the total number provided that in each legislative district, at least three (3) per cent therein shall sign the petition. The provisions of R.A. R.A. No 6735 (The Initiative Initiative and and Re felwan rai \a w ) dealing with initiative initiative on the constitution constitution implements people’s initiative initiative qff qffii tn t C ^fc litu fion under Section Section 2, Article XVII, 1987 Constitution. Ratification  Any proposed amend ment or revision< revis ion<8 ^ ^ \ o n 5 ! f c j t i o n will have to t o be submitted submitte d to the people in a plebiscite to be ratified ratified by majority oH l® voters.

The The Effect of Declarat Declaration ion of u rron stitu tfeh ality of a Legislative Legislative or Executive Executive Act  A legislative legislati ve or executive act th a ri s declared void for being unconstitutional unconstitu tional cannot give rise to any right (Commissioner of Internal Revenue v. San Roque Power Co rp o ra tio n ^. Rl£lo. 48J485, 48J485, October 8,2013 cited in Maria Maria Carolina P. P. Araullo, Araullo, et al. v. Benigno Simeon C. Aquino III, et al. G.R. No., 209287, 728 SCRA 1, July 1, 2014, En Ban Ba nc c [Be [Be rrsa sa m k0 -The The O perativh Fa^tD obtrine 4

T^ie doGtrihe of operative fact recognizes the existence of the law or executive act or to to tfr^ ^t e rm in a tio n of its its unconstitut unconstitutionali ionality ty as as an operative operative fact that produce produced d qu^ades that cannot always be erased, ignored or disregarded. In short, it nullifies the r executive executiv e act but sustains sustain s its effects. It provides an exception to the general rule oid or unconstitutional l aw produces no effect. But its use must be subjected subjec ted to great and circumspection, and it cannot be invoked to validate an unconstitutional law or executive act, act, but is resorted to only as a matter of equity and fair play. It applies only to cases where extraordinary circumstances exist, and only when the extraordinary circumstances have met the stringent conditions that will permit its application. (Maria Carolina P. Araullo, et al. v. Benigno Simeon C. Aquino III, et al. G.R. No., 209287, 728 SCRA SCRA 1, Ju ly 1, 2014, 2014, En Banc [Bers am in])  Address: Un it 2 ,4th Floor, Espan Espana a Place Place Building, 1139 Adelin a Stree t corne r Espana Espana Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasisiawcenter.com / www.face book.co m/villasisla wcente r / www.remediallawdoctrines.blogSDQt.c www.remediallawdoctrines.blogSDQt.com om [email protected] / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

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

We find the doctrine of operative fact applicable to the adoption and implementation of the DAP. DAP. Its applicatio n to the DAP DAP proceeds from equity and fair play. play. The consequences resulting from the DAP and its related issuances could not be ignored could no longer be undone.  As already alread y mentioned, the implementation impleme ntation of the DAP resulted into th savings pooled by the Executive to finance the PAPs that were not covered that did not have proper appropriation covers, as well as to augment iten other departments of the Government in clear violation of the Constitutic implementation of the DAP unconstitutional without recognizing that it^Driorlh^pleme cons consti titu tute ted d an oper operat ativ ive e fact fact that that pro produ duce ced d cons conseq eque uenc nces es in in t h ^ r e a ^ ^ ^ ^ f l s jurist juristic ic worlds of the Government and and the Nation is to be impractical impractical anc ^n fair. fai r. uhtess the doctrine doctrine is held to apply, the Executive as the disburser and the offices^ncrajPhncteeewhere as the recipi recipient ents s cou could ld be requi required red to undo undo everyt everythin hing g that that th e ^ T ^ ir n ^ jT e n te d in good good fai faith th under under the the DAP. DAP. That scenario scenario would be be enormou enormously sly blr d e n s o rB e ^r the Govern Government ment.. Equity alleviates such burden. equately shown as to be beyond The other side of the coin is that it debate that the implementation of the DAP yi ly positive results that enhanced pitive results may be impossible, but the economic welfare of the country. country. To «a un t  jjy include includ e roads, bridges, homes home s for the the visible ones, like public infrastructure, homeless, hospitals, classrooms a^d the like.' N to apply the doctrine of operative fact to the DAP could literally cause the pny$jcal un^thg of such worthy results by destruction, and would result in most undesirable wastefulness. (Maria Carolina P. Araullo, et al. v. Be nign o Sim eon C. A q u fr o fa , e t al. S.R. S.R. No., No., 209287, 209287, 728 728 SCRA 1, 1, J u ly 1, 2014, 2014, En Banc [Bersamin]) V The Doctrine oi Ofte Ofteii•raif • raifif ife. e. Fa ct Extends as we ll to a Void o r U nc ons titutiona l Executive Executive A ct

The term^iM^ytive act  is broad enough to include any and all acts of the Executive,  jcjj^th including those that are quasi-legislative and quasi-judicial in nature. In '^Commiss '^Commissioner ioner o f Internal Intern al Revenue Revenu e v. San Roque R oque P owe r Corporation (G.R. (G.R. No. No. 187485, Gptober 8, 2013), the Court likewise declared that “for the operative act doctrine to re must be a ‘legislative or executive measure,’ meaning a law or executive ce.” Thus, the Court opined opined there that the operative fact doctrine did not apply to a re administrative adminis trative practice p ractice of the Bureau o f Internal Revenue, x x x. It is clear from the foregoing that the adoption and the implementation of the DAP and its related issuances were executive acts. The DAP itself, as a policy, policy, transcended a merely administrative practice especially after the Executive, Executive, through the DBM, DBM, implemented it by issuing various memoranda and circulars. (Maria Carolina P. Araullo, et al. v.  Address: Un it 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet corn er Espafia Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com www.villasislawcenter.com /  / www.facebook.com/villasislawcenter www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot www.remediallawdoctrines.blogspot.com .com  / [email protected] / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

Benigno Simeon C. Aquino III, et al. G.R. No., 209287, 728 SCRA 1, July 1, 2014, Banc [Bersamin]) The Presumption of Good Faith Stands in the DAP Case despite the Obiter  Pronouncement

The quoted text of paragraphs 3 and 4 shows that the Court has neither thrown the presumption of good faith nor imputed bad faith to the authors, proponents and implementers of the DAP. The contrary is true, because the Court has still still presumed their good faith by pointing out that “the doctrine o f operative fact x x x cann ot apply to the authors, proponents and implementers of the DAP, unless there are concrete findings o f goo d faith in their favor by the prop er tribunals determining their criminal, criminal, civil, civil, administrative and other  liabilities.” X x x

It is equally important to stress that the ascertainment of good faith, or the lack of it, and the determination of whether or not due diligence and prudence were exercised, are questions of fact. fact. The want of good faith is thus better determined by tribunals other than than this Court, which is not a trier of facts. For sure, the Court cannot jettison the presumption of good faith in this or in any other case. The presumption is a matter of Iqw Iqw.. |t Ijas had a long history. history. Indeed, good faith has long been established establ ished as a legal qDrairipje qDrairipje elren in the heydays heyda ys of the Roman Empire Empire.. X x x *^ Relevantly the authors, pr»ponents>6 ndimplementers of the DAP, being public officers, further enjoy the presurn^bn of ngMarity in the performance of their functions. This presumption is necessary becausFthe^are clothed with some part of the sovereignty of the State, State, and because they act in the interest of the public as required by law. law. However, the presumption may be disputed.  At any an y rate, the Court has agreed ag reed during its delib eration s to extend t o the proponents and the implementers of the DAP the benefit of the doctrine doctrine of operative fact. This is because they had nothing to do at all with the adoption of the invalid acts and practices. (Maria Carolina P. Araullo, et al. v. Benigno Simeon C. Aquino III, et al., G.R. No. 209287, February 3, 2015, En Banc [Bersamin], Resolution of the Motion for  Reconslderatfoz

THE NATIONAL TERRITORY The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine subma rine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters o f the Philippines. (Article I, 1987 1987 Cons titution)  Address: U nit 2 , 4th Floor, Espaffa Espaffa Place Place Building, 1139 Adelina St reet corner co rner Espafia Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.villasislawcenter.com  / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com villasislawcenterOgmail.com villasislawcenterOgmail.com / [email protected] Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

The Maritime Baselines Law (R.A. No. 9522) In 1961, Congress passed Republic Act No. 3046 (RA 3046) demarcating the maritime baselines of the Philippines as an archipelagic State. State. This law followed followed the framing of the Convention on the Territorial Sea and the Contiguous Zone in 1958 (UNCLOS I codifying, among others, the sovereign right of States parties over their “territorial sea,” breadth of which, however, was left undetermined . Attempts Attemp ts to fill this void during the second round of negotiation s in Geneva in 1960 1960 (UNCLOS II) II) proved proved futile. Thus, domestically, RA 3046 remained unchanged for nearly five decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA 5446]) correcting typographical errors and reserving the drawing of baselines around Sabah in North Borneo. In March March 2009, Congress amended RA 3046 by enacting RA 9522. The change was prompted by the need to make RA 3046 compliant with the terns of the United Nations Convention on the Law of the Sea (UNCLOS III), which the Philippines ratified on 27 February 1984. Among Amon g others, UNCLOS III III prescribes prescribe s the water-lan wate r-land d ratio, length, and contour of baselines of archipelagic states like the Philippines and sets the deadline for the filing of application for for the extended continental continental shelf. Complying with with these requirements, requirements, RA 9522 shortened one baseline, optimized the location of some basepoints around the Philippine archipelago and classified adjacent territories, namely, the Kalayaan Island Group (KIG) and the Scarborough Shoal, as “regimes of islands” whose islands gen erate their own applicable maritime zones. (Profe sso r Me rlin M. M. Magallona, et al. al. v. Hon. Hon. Edu ardo Ermita, et al., G.R. No. 187167, 655 SCRA 476, August 16, 2011, En Banc [Carpio]) RA 9522 9522 is no t unconstitutional. It is is a statu tory too l to demarcate demarcate the coun try’s try’s maritime zones and continental shelf under UNCLOS III, not to delineate Philippine territory. UNCLOS III has nothing t© t© do with the acquisition (or loss) of territory. It is a multilateral treaty regulating, among others, sea-use rights over maritime zones (i,e (i,e., ., the territorial waters [12 nautical miles from the baselines], contiguous zone [24 nautical miles from the baselines], exclusive economic zone [200 nautical miles from the baselines]), and continental shelves that UNCLOS III delimits. delimits. UNCLOS III III was the culmination culmination of decadeslong negotiations among United Nations members to codify norms regulating the conduct of States States ify h e g r i d ’s oceans oceans and and submarin submarine e areas, areas, recogni recognizing zing coastal coastal and and archipelag archipelagic ic States’ graduated authority over a limited span of waters and submarine lands along their 

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the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties to work-out specific basepoints along their coasts from which baselines are drawn, either straight or contoured, to serve as geographic starting points to measure the breadth of the maritime zones and continental shelf. Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit with precision the extent of their maritime zones and continental shelves. In turn, this gives notice to the rest of the international community of the scope of the

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maritime space and submarine areas within which States parties exercise treaty-base rights, rights, namely: namely: the exercise of sovereignty over territorial waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration and sanitation laws in the contiguous zone (Article 33), and the right to exploit the living and non-living resources in the exclusive economic zone (Article 56) and continental shelf (Article 77). (Professor Merlin M. Magallona, et al. v. Hon. Eduardo Ermita, et al., G.R. No. 187167, 655 SCRA 476, August 16, 2011, En Ban [Carpio]) UNCLOS UNCLOS III III and its ancillary baselines laws play no role in the a c ^ is if h n , ». enlargement or diminution diminution of territory territory.. Under traditional international international law typology, typology, states acquire (or conversely, lose) territory through occupation, accretion, cession and prescription, not by executing multilateral treaties on the regulation of sea-use rights or enacting statutes to comply with the treaty’s terms to delimit maritime zones and continental shelves. Territorial claims to land features are outside UNCLOS Nil, and are instead governed by the rules on general international law. (Profe sso r Merlin M. Magallona, e t al. al. v  v . Hon. Eduardo Ermita, et al., al., G.R. G.R. No. 187167, 187167, 655 SCRA 476, A u g u st 16, 16, 2011, 2011, En Ba nc [Car pio ]) RA 9522’ 9522’s s use o f the the framework o f Regime o f Islands to determine the maritime maritime zones of the Kalayaan Island Group (KIG) and the Scarborough Shoal is not inconsistent with the P hilippines’ claim o f sove reignty ove r these these areas areas.. The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522 merely followed the basepoints mapped by RA 3046, save for at least nine basepoints that RA 9522 skipped to optimize the location of basepoints and adjust the length length of one baseline (and thus comply with UNCLOS Ill’s limitation on the maximum length of baselines). Under RA 3046, as under RA 9522, 9522, the KIG KIG and the the Scarborough Scarborou gh Shoal lie outside of the baselines drawn around around the Philippine archipelago. archipelago. This undeniable cartographic fact takes the wind out of petitioners’ argument branding RA 9522 as a statutory renunciation o f the Philippi nes’ claim over the KIG, assuming that baselines are relev relevant ant for this this p urp os eS \ Petitioners’ assertion ;o f loss o f “about 15,000 15,000 squa re nautical miles of territorial waters” unde r RA 9522 is similarly unfounded unfounded both in fact and law. On the contrary, RA 9522, by optimizing the location of basepoints, increased  increased  the Philippines’ total maritime space (covering its internal waters, territorial sea and exclusive economic zone) by 154,216 square nautical miles x x x. Further, petitioners’ argument that the KIG now lies outside Philippine territory :he baselines that RA 9522 draws do not enclose the KIG is negated by RA 9522 Section 2 of the law commits to text the Philippines’ continued claim of sovereignty  jurisd iction ictio n over o ver the KIG and the Scarborough Scarboro ugh Shoal x x x Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine archipelago, adverse legal legal effects would have ensued. The Philippines would have committed a breach breach of two provisions of UNCLOS III. III. X x x

 Address: Un it 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet corn er Espaiia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/vi www.facebook.com/villasislawcenter llasislawcenter / www.remediallawdoctrines.blogspot www.remediallawdoctrines.blogspot.com .com /  / [email protected] / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

 Althou gh the Philippines Philippin es has consistently consis tently claimed sovereignty sovere ignty over the KIG and th Scarborough Shoal for several decades, these outlying areas are located at an appreciable distance from the nearest shoreline of the Philippine archipelago, such that any straight baseline loped around them from the nearest basepoint will inevitably “depart to an appreciable extent from the general configuration of our archipelago.” X xx [T|he amendment of the baselines law was necessary to draw the outer limits of its maritime zones including the extended by Article 47 o f [UNCLOS III] III].. Hence, far from surrendering the Philippines’ claim Scarborough Shoal, Congress’ decision to classify the KIG and the Scarborough Shoal as “’Regime[s] of Islands’ under the Republic of the Philippines consistent with Article 121” of UNCLOS III manifests the Philippine State’s responsible observance of its pacta sunt servanda obligation obliga tion under UNCLOS III. Under Article Artic le 121 121 of UNCLOS UNCL OS III, III, any “naturally “natu rally formed area of land, surrounded by water, which is above water at high tide,” such as portions of the KIG, qualifies under the category of “regime of islands,” whose islands generate their own applicable maritime zones. (Professor Merlin M. Magallona, et al. v. Hon. Eduardo Ermita, et al., G.R. No. 187167, 655 SCRA 476, August 16, 2011, En Banc [Carpio])

THE DOCTRINE OF STATE IMMUNITY FROM SUIT The State may not be sued without its consent. (Section 3, Article XVI, 1987 Constitution)

Discuss the basis o f the Doctrine of State State Immun ity from S uit The basic postulate enshrined in the Constitution that “[t]he State may not be sued without its consent,” reflects reflects nothing less than a recognition of the sovereign character of the State and an express affirmation of the unwritten rule effectively insulating it from the  jurisdictio  juris diction n of courts. It is based on the very essence essen ce of sovereignty. sovereign ty. As has been aptly observed by Justice Holmes, a sovereign is exempt from suit, not because of any formal ^hnception or obsolete theory, but on the logical and practical ground that there can be no ^ le g^ lrig ht as against the authority that makes the law on which the right depends. True, the the  j f  ^ d o c tr in e , not too too infrequent infrequently, ly, is derisively called called “the royal royal prerogati prerogative ve of dishonesty” dishonesty” Wfcause Wfcause it grants the state the prerogative to defeat any legitimate claim against it by simply + inw in w kin g its non-suability. non-suability. We have had occasion to explain in its defense, however, however, that a continued adherence to the doctrine of non-suability cannot be deplored, for the loss of governmental efficiency and the obstacle to the performance of its multifarious functions would be far greater in severity than the inconvenience that may be caused private parties, if such fundamental principle is to be abandoned and the availability of judicial remedy is not to be accordingly restricted. restricted. (Dep artme nt o f Ag ricu ltur e v. NLRC, NLRC, 227 SCRA 693, 693, Nov. Nov. 11, 11, 1993 1993 [Vitug ])  Address: U nit 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adeli na St reet corner co rner Espafia Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com www.villasislawcenter.com /  / www.facebook.com/villasislawcenter / w ww.remediallawdoctrines.blogsDot.c ww.remediallawdoctrines.blogsDot.com om /  / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

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

The rule tha t when the State enters into a contra ct with a private individ ual or entity, it is deemed to have descended to the level of that private individual or entity and, therefore, is deemed to have tacitly given its consent to be sued, is that without any qua lification? What is is the Restrictive Doctrine of State State Immun Immun ity from Suit? This rule is not without qualification. Not all all contracts entered into by the government operate as a waiver of its non-suability; distinction must still be made between one which is executed in the the exercise of its sovereign function and another which is done in its proprietary capacity. In United States o f America v. Ru iz (136 SCRA 487),  487),  where the questioned transj^ion dealt^vith the improvements on the wharves in the naval installation at Subic Bay, we helc “The traditional rule of immunity exempts a State from being sued in the lir ts o f another another State without its consent or waiver. This rule is a necessary consequence of the the principle of independence and equality of States. States. However, However, the rules of International Law are not petrified; they are constantly developing and evolving. And because the activities activiti es of states have multiplied, it has been necessary to distinguish them - between sovereign and governmental acts (jure imperii)  imperii)   and private, commercial and proprietary acts (jure gestionis). The result is that State State immunity now extends only to acts ju acts ju re imperii. The restrictive application of State immunity is now the rule in the United States, the United Kingdom and other states in Western Europe.

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Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

Xxx The restrictive application of State immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign, its commercial ac tivities or economic econ omic affairs. Stated differently, a State may be sail sail have descended to the level of an individual and can thus be deemed to have ta given its consent to be sued only when it enters into business contracts. It does apply where the the contracts relate to the exercise of its sovereign functions. In case the projects are an integral part of the naval base which is devoted to the defense of both the United States and the Philippines, indisputably a function of the government of the highest order; they are not utilized for nor dedicated to commercial or business purposes.” (Department o f Ag ricu lture v. NLRC, NLRC, 227 SCRA SCRA 693, Nov. Nov. 11, 1993 [Vitug]) When is a suit aga inst a pub lic official deemed to be a suit against the the State? Discuss. Discuss. The doctrine of state immunity from suit applies to complaints filed against public officials for acts done in the the performance of their duties. The rule is that the suit must be regarded as one against the State where the satisfaction of the judgment against the public official concerned will require the State itself to perform a positive act, such as appropriation of the amount necessary to pay the dam ages awarded to the plaintiff. plaintiff. The rule does not apply where the public official is charged in his official capacity for acts that are unlawful unlawful and injurious to the rights of others. others. Public officials are not exempt, exempt, in their personal capacity, from liability arising arising from acts committed in bad faith. Neither does it apply where the public official is clearly being sued not in his official capacity but in his personal capacity, although the acts complained of may have been committed while he occupied a public position. (Amado J. Lansang v. CA, G.R. No. 102667, Feb. 23, 2000, 2nd DiV. 2nd DiV. [Quisumbing])  As early as a s 1954, this Court has pronounced pronounce d th at an office r cannot cann ot shelter sh elter himself hims elf by the plea that he is a public ag ent acting under the color of his office when his acts are wholly with out authority. Until recently in 1991 1991 (Chave z v. v. Sandiganba yan, 193 SCRA SCRA 282 [1991]), [1991]), this doctrine still found application, this Court saying that immunity from suit cannot ititutionafae irresponsibility and non-accountability nor grant a privileged status not ed &t4my other official of the Republic. (Republic v. Sandoval, 220 SCRA 124, arcng B, 1993 1993,, En Banc [Campos, Jr.]) o v. Swift, 735 SCRA 102 (2014)  A petition filed for the issuance of a Wri t of Kalikasan directed against again st the Commander of the US Pacific Fleet for the destruction of our corrals in Tubbataha reef (a protected area system under the NIPAS [National Integrated Protected Areas System] and a UN declared World Heritage Site because of its rich marine bio-diversity) in the Sulu Sea caused by the USS Guardian, an American naval vessel when it ran aground there in the  Address: U nit 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet co rner Espaiia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com www.villasislawcenter.com /  / www.facebook.c om/villasislawcenter / www.remediallawdoctrines.blogspot.com / www.remediallawdoctrines.blogspot.com  / [email protected] / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

course of its voyage to Indonesia from its base in Okinawa, Japan, will not prosper for lack o  juris dictio n following follow ing the doctrine doctri ne of sovereig n equality equa lity of all States, In effect, the suit is a suit against the US government and, therefore, should be dismissed. dismissed. The waiver of immunity from suit of the US under the Visiting Forces Agreement (VFA) (VFA) applies only to waiver from criminal criminal jurisdiction, jurisdiction, so that if an an American American soldier co m m its ^r \ an offense in the Philippines, he shall be tried by Philippine courts under Philippine lav«fcy V The waiver did not include the special civil action for the issuance of a Writ of Kalikasan. Kalikasan. \ \  Also, the demand dema nd for compensa tion for the destruction of our corrals in Tubbataha Tubb ataha reef has been rendered moot and academic. academic. After all, the US already signified its intention intention to pay damages, as expressed by the US embassy officials in the Philippines, the only request is that a panel of experts composed of scientists be constituted to assess the total damage caused to ou r corrals there, there, which request is not unreasonable. unreasonable. Government Funds may n ot be sub ject to Garnishment Garnishment The funds of the UP are government funds that are public in character. character. They include the income accruing from the use of real property ceded to the UP that may be spent only for the attainment of its institutional institutional objectives. Hence, Hence, the funds subject of this action could not be validly made the subject of writ of execution execution or garnishment. garnishment. The adverse judgme nt rendered against the UP in a suit to which it had impliedly consented was not immediately enforceable by execution against the UP,*because suab ility of the State did not necessarily mean its liability. (UP v. Dizon, G.R. No. 171182, 679 SCRA 54, 23 August 2012, 1st Div. [Bersamin]) The Doctrine should not be used to perpetrate an Injustice on a Citizen To our mind, it would be the apex of injustice and highly inequitable for us to defeat petitioners-contractors’ right right to be duly com pensated for actual work performed and services rendered, rendered, where both the government and the public have, for years, received and accepted benefits from from said housing project and reaped the fruits of petitioners-contractors’ honest toil and labor. Incidentally, Incidentally, respondent likewise argues that the S tate may not be sued in the instant case, invoking the constitutional doctrine of Non-suability of the State,  State,  otherwise known as the Royal Prerogative o f Dishonesty Dishonesty.. Respondent’s argument is misplaced inasmuch as the principle of State immunity o^application in the case before us. Under these circumstances, circumstances, respondent may not validly invoke the Royal Prerogative oruishonesty   and conveniently hide under the State’s cloak of invincibility against suit, considering that this principle yields to certain settled exceptions. exceptions. True enough, the rule, in any case, is not absolute for it does not say that the state may not be sued under any circumstances. Thus, in Amiga in  Amigable ble v. Cuenca,  Cuenca,  this Court, in effect, shred the protective shroud which shields the state from suit, reiterating our decree in the landmark case of Ministerio v. CFI of  Cebu that Cebu that “the doctrine of governmental immunity from suit cannot serve as an instrument  Address: U nit 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet co rner Espaiia Espaiia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.villasislawcenter.com  / www.facebook.c om/villasislawcenter / www.remediallawdoctrines.blogspot.com / www.remediallawdoctrines.blogspot.com  / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

for perpetrating an injustice on a citizen.” It is is jus t as important, if not more so, that there there fidelity to legal norms on the part o f officialdom officialdom if the rule of law were to be maintained. I  Although  Althou gh the  Amigab le  le  and Ministerio  Ministerio  cases generously tackled the issue of the State’s immunity from suit vis a vis  vis  the payment of just compensation for expropriated property, this Court nonetheless finds the doctrine enunciated in the aforementioned cases applicable to the instant controversy, considering that the ends of justic justic e would be su bvert if we were to uphold, in this particular instance, the State’s immunity from from suit. To be sure, this Court - as the staunch guardian of the the citizens’ rights and welfare cannot sanction an injustice so patent on its face, and allow itself to be an instrument in the perpetration perpetration thereof. thereof. Justice and equity sternly demand demand that the State’s cloak of invincibility against suit be shred in this particular instance, and that petitioners-contractors be duly compensated compensated - on the basis basis of quantum meruit - for constructi construction on done of rthe public works housing project. (EPG (EPG Co ns truc tion Co. Co. v. Vigilar, 354 SCRA 566, 566, Mar. 16^2001.  16^2001.  2nd Div. [Buena])

FUNDAMENTAL PRINCIPLES AND STATE POLICIES

m jr Constit Constituti ution) on)

The Philippines Adherence to the Doctrine of Incorporation Section 2, Article II of the 1987 Constitution provides that the Philippines adopts the generally accepted principtesjOfinternational as part of the laws of the land land.. This This provis provision ion is an a ffe p a tio n ^t '; ;>our adherence to the doctrine of  incorporation in international law. Under the 1987 Constitutionkan intentional law can become part of the sphere of domestic law either by trans tema tion^ yncO Tpo ratio n. The transformation method requires that an international international law f i e Tran Transforrr^B sforrr^B into a domestic law through a constitutional constitutional mechanism such as local On the other hand, hand, generally accepted principles of  international international law, law, b y ^ y ir a ^ o f incorporation clause of the Constitution, Constitution, form part of the laws of the land land gver f if tTO yd o not derive derive from from treaty stipulations. stipulations. Generally accepted principl principles es of int e rn s ^R M kw ^c lu d e internat international ional customs customs as evidence evidence of a general general practi practice ce accepted as er ^ra l principles of law law recognized recognized by civilized nations. nations. International International customary rul pted as binding as a result from the combination of two elements: the etfablishe widespread, and consistent practice on the part of States; and a psychomical ent known as the opinion juris sive necessitates (opinion as to law or  j^ c e s s it y ): licit in the latter element is a belief that the practice in question is rendered the existence of a rule of law requiring requiring it. “General principles of law recognized recognized id nations" are principles “established by a process of reasoning” or judicial logic, bn principles which are “basic to legal systems generally,” such as “general principles i.e.,  i.e.,  the general principles of fairness and justice,” and the “general principles against discrimination” which is embodied in the “Universal Declaration of Human Rights, Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention Against Discrimination in Education, the Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation.” These are the same core core principles which underlie the Philippine Constitution itself, and embodied in the due process and equal protection clauses  Address: Un it 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet corn er Espaiia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.facebook.com/vi www.facebook.com/villasislawcenter llasislawcenter / www.remediallawdoctrines.blogspot www.remediallawdoctrines.blogspot.com .com /  / [email protected] / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

of the Bill of Rights. (Mary Grace Natividad S. Poe-Llamanzares v. COMELEC, G R. No. 221697, March 8, 2016, En Banc [Perez]) The The Righ t to to Se lf-Determination o f Peoples This right to self-determination of peoples has gone beyond mere treaty o convention; in fact, it has now been elevated into the status of a generally accepted princ^ of international law. (The (The Province o f North Cotabato v. The The Gove rnment ofai i Re pub lic o f the Philipp ines Peace Panel, Panel, G.R. G.R. No. No. 183591 183591,, 568 SCRA 402 402,, Octrfioer  2008, En Banc [Carpio-Morales]) The Yogyakarta Principles: Have they evolved into a generally accepted international law and, and, therefore, therefore, bind ing u pon the Philippines? Philippines? We refer now to the petitioner’s invocation of the Yogyakarta Principles (the  A pp lic a tio n o f Inter Int er na tio na l Hum an Ri gh ts Law In Relatiop'fO Sexual Orientation and Gender Identity), which petitioner declares to reflect binding*principles of international law.  At this th is time, we are not prepared p repared to declare that these Yogyakarta Principles contain Principles contain norms that are obligatory on the Philippines. Philippines. Therg aresdeclaratio aresdeclarations ns and obligations outlined in said Principles which are not reflective of th&cuni&jytfate of international law, and do not find basis in any of the sources of internatidnaltaAenumerated under Article 38(1) of the Statute of the International Court of Justic^^C x

Using Using even the the most Jiberal Jiberal o ^ te n s ^, these Yogyakarta Principles,  Principles,  consisting of a declarati declaration on formulated formulated b y fl a nous intera interaction ctional al law professo professors, rs, are - at best - de lege refenda - and and do do not not c o a s tr a W ^f in g obligat obligations ions on the Philip Philippin pines. es. X x x (Ang LADLAD LGBT Party v. v. C O ]£ g fe ^ G .q jfi> . 1905 190582 82,, 618 SCRA SCRA 32, 32, A p ril 8, 201 2010, 0, En Banc [Del Castillo]) The Filipino F irst Policy li\the^grant of rights, privileges and concessions covering the national nd patrimony, the State shall give preference to qualified Filipinos (Sec. ar., ar., Art. XII o f the Co nstitution ) inc e H otel v. GSIS, GSIS, 267 SCRA SCRA 408 (1997) (1997) (Bellos illo) In this case, the SC ruled that this provision is self-executing. It was also in this case where the Court clarified that the rule now is that all provisions of the Constitution are presumed to be self-executing, self-executing, rather than non-self-executing. Elaborating, Elaborating, the Court Court explained that if a contrary presumption is adopted, the whole Constitution shall remain dormant and be captives of Congress, which could have disastrous consequences.

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 Also, in this case the SC held that th at “patrimony” “patrim ony” simply means “heritage.” “herit age.” Thus, whei we speak of “national patrimony,” we refer not only to the natural resources of the Philippines but as well as the cultural heritage of the Filipino people. The Right to Life of the the Unborn from Conception The Philippine national population program has always been grounded on corner cornerst stone one prin princip ciple les: s: “ prin ciple of no -abo rtion” and and the the “ princ iple o f non-coe rcion. These principles are not merely grounded on administrative policy, but rather, originates from the constitutional constitutional protection protection which expressly provided to to afford protection ^ life and guarantee religious freedom. freedom. When Does Life Begin? Majority of Members of the Court are of the position that the que^bon of when life begins is a scientific and medical issue that should not be decided, at this^stage, without proper hearing hearing and evidence. evidence. During During the deliberations, however, however, it wa s agreed upon that that the individual members of the Court could express the ir own views on this matter. matter. In this regard, the ponente, is of the stro strong ng ^ e w ^ a t life life begins begins at fertil fertiliza izatio tion. n. Xxx Textually, the Constitution Constitution affords protection protection to the unborn from conception. This is undisputable because before conception, there is no unborn to speak of. For said said reason, it is no surprise that the Constitution is mute as to any proscription prio r to conception or when life begins. begins. The problem has arisen arisen because, amazingly, amazingly, there are quarters who have conveniently disregarded the scientific fact that conception is reckoned from fertilization. They are waving the yi^w that life begins at implantation. Hence, Hence, the issue of when life begins. Xxx In confprrrtity With the above principle, the traditional meaning of the word “conception” which, as described and defined by all reliable and reputable sources, means that life begins at fertilization. fertilization.

From the deliberations above-quoted, it is apparent that the framers of the istitutio istitution n emphasized that the State shall provide equal protection protection to both the mother and the unborn child from the earliest opportunity of life, that is, upon fertilization or upon the union of the male sperm and the female ovum. X x x Equally apparent, however, is that the Framers of the Constitution did not intend to ban all contraceptives for being unconstitutional. unconstitutional. From the discussions above, above, contraceptives that kill or destroy the fertilized fertilized ovum should be deemed an abortive and thus  Address: Un it 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet corn er Espafia Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.facebook.com/vi www.facebook.com/villasislawcenter llasislawcenter / www.remediallawdoctrines.blogspot www.remediallawdoctrines.blogspot.com .com /  / [email protected] / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

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prohibited. prohibited. Conversely, Conversely, contraceptives that actually prevent the union union of the male spe and the female ovum, and those that similarly take action prior to fertilization   should be deemed non-abortive, and thus, constitutionally permissible. (James M. Imbong, et al. v. Hon. Pa quito N. Ochoa, Jr., e t al., al., GR No. 204819, 204819, A p ril 8, 2014, 2014, En Banc [Men doza ])

The Right to Health and to a Balanced and Healthful Eco logy in Acco rd w ith the Rhythm and Harmony o f Nature Nature International Service for the Acquisition of Agri-Biotech Applications * Greenpeace Southeast Asia (Philippines), et al., G.R. No. 209271, Decemf  En Banc (Villarama, Jr.) The Precautionary Principle

The precautionary principle originated in Germany in ^pressing the normative idea that governments are obligated to “foresegf'3 harm to the environment. environmen t. In the following followi ng decades, decades , the precautionary precautiona ry phi phi served as the normative guideline for policymaking by many national golernmeni Che Rio Declaration on Environment and Development Development,, the outcome of t|j t|jfe fe 1 9 9 ^ ta it e jf Nations Nations Conference Conference on Environment Environment and Development Development held held in Rio de Jar| eir o\i efi ne stn e rights rights of the people to be involved in the development of their economies aml)|^responsibilities of human beings to safegua safeguard rd the common common enviro environme nment. nt. It s t a t d ^ ^ ^ r e lofcj term term economic economic progre progress ss is is only ensured ensured if it s linked linked with with the the pro tec ti« Lo f th ^^ jv iro n m e n t. For the first time, the precaution precautionary ary approach approach was codifi codified ed u n d e f^ ^^ jQ |^ 1 5 , which which reads reads:: In order to protect the environment, the precautionary approach shall be widely applied by States according according to their capabilities. capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental environmental degradation. degradation. Principle 15 codified for the first time at the global level the precautionary approach, which indicates that lack of scientific certainty is no reason to postpone action to avoid potentially potentia lly serious seriou s or irreversible harm to the environment. It has been incorporated in various international legal instruments. instruments. The Cartagena Protocol Protocol on Biosafety to the the Convention on Biological Diversity, finalized and adopted in Montreal on January 29, 2000, establishes an international regime primarily aimed at regulating trade in GMOs intended for ease into the environment, in accordance with Principle 15 of the Rio Declaration on !“onment and and Development. X x x The precautionary principle applies when the following conditions are met: met: 1. There exist considerable consid erable scientific scien tific uncertainties; 2. There exist scenarios (or models) of possible harm that that are scientifically reasonable (that is based on some scientifically plausible reasoning); 3. Uncertain ties cannot be reduced in the short term withou t at the same time increasing ignorance of other relevant factors by higher levels of abstraction and idealization;  Address: U nit 2 , 4th Floor, Espaifa Espaifa Place Building, 1139 Adelina Street corner corn er Esparfa Esparfa Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.villasislawcenter.com  / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com villasislawcenterOgmail.com villasislawcenterOgmail.com / mvplawoffi mvplawoffice(5) ce(5)gmail gmail.com .com Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

4. The potential harm is sufficiently serious or even irreversible for present o future generations or otherwise morally unacceptable; 5. There is a need to act now, since effective counteraction later will be made significantly more difficult or costly at any later time. The Rules (of Procedure for Environmental Cases) likewise incorporated the principl in Part V, Rule 20, which states:

PRECAUTIONARY PRINCIPLE PRINCIPLE Sec. 1.  Applicability.   Applicability.   - When there is a lack of full set establishing a causal link between human activity and environ shall apply the precautionary principle in resolving the case The constitutional right of the people to a balan be given the benefit of the doubt.

ecology shall shall

SEC. 2. Standards fo r application. application.   - In applyrncnh gfprecau tionary principle, principle, the following factors, among others, may be considered^) threats to human life or health; (2) inequity to present or future generations; or (3) prejudice to the environment without legal consideration o f the environmental rights of those affected. Under this Rule, the precautionary principle finds direct application in the evaluation of evidence in cases before the courts. courts. The precautionary principle bridges the gap in cases where scientific certainty in factual findings cannot be achieved. By applying the precautionary principle, the court may construe a set of facts as warranting either judicial action or inaction, inaction, with the goal of preserving and and protecting the environment. environment. This may be further evinced from the second paragraph where bias is created in favor of the constitutional right of the people to a balanced balanced and healthful healthful ecology. In effect, effect, the precautionary principle shifts the burden of evidence o f harm away from from those likely to suffer harm and onto those desiring to change the status quo. quo. An application of the precautionary principle to the rules on evidence will enable courts to tackle future environmental problems before ironclad scientific consensus emerges. (Annotation to the Rules of Procedure for  Environmental Cases) Cases)  j L For purposes of evidence, the precautionary principle should be treated as a principle o ^ a s t resort, resort, where application of the regular Rules of Evidence would cause in an an ' equitable result for the environmental plaintiff - (a) settings in which the risks of harm are -pertain: (b) settings in which harm might be irreversible and what is lost is irreplaceable; an a( c) settings in which the harm harm that might result would be serious. When these features uncertainty, the po ssib ility of irreversible harm, and and the po ssib ility of serious harm coincide, the case for the precautionary principle is strongest. When in doubt, cases must be resolved in favor of the constitutional right to a balanced and healthful ecology. Parenthetically, judicial adjudication is one of the strongest fora in which the precautionary principle may find applicability. applicability. (International (International Service Service fo r the Acq uisition o f Agri-biotech  Address: U nit 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet co rner Espaiia Espaiia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.villasislawcenter.com  / www.facebook.c om/villasislawcenter / www.remediallawdoctrines.blogspot.com villasislawcenter(5>gm villasislawcenter(5>gmail.com ail.com / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

 Ap plica pl ica tions tio ns,, Inc. v. Greenpeace Greenpea ce Sou theast the ast A sia [Phi [P hilip lippin pin es], es ], et al., GR No. No. 20927. Decemb er 8, 8, 2015, 2015, En Banc [Villa rama])  A p p lic a tio n o f the th e P re ca ut io na ry P rin cip ci p le to the th e B t ta lo n g F ie ld Trial Tri als s in the Philippines  Assessing  Asses sing the evidence evide nce on record, as well as the current curren t state of GMO GMO rese a« jk )/ cer ta tai r^ r^ r ^ h e \ \ worldwide, the Court finds all the three conditions present in this case - u n ce possibility of irreversible harm and the possibility of serious harm. Xxx  Along side the aforesaid aforesa id uncertainti es, the non-implementa non-imp lementation tion of Biosafety Framework) in the crucial stages of risk assessment and public consultation, including the determination of the applicability of the EIS (Environmental Impact Statement) requirements to GMO field testing, are compelling reasons for the application of the precautionary principle. principle. There exists a preponderance of evidence that the release of GMOs into the environment threatens to threatens to damage our ecosystems and not just the field trial sites, and eventually the health of our people once the Bt  Bt   eggplant are consumed as food.  Adopting  Adoptin g the precautionar preca utionary y approach, ap proach, the Court rules that th at the principle s o f the NBF need to be operationalized first by the coordinated actions of the concerned departments and agencies before allowing the release into the environment of genetically modified eggplant. The more prudent course is to immediately enjoin the Bt talong field talong  field trials and approval for its propagation or commercialization until the said government offices shall have performed their respective mandates to implement the NBF. We have found the experience of India in the Bt brinjal  brinjal  field field trials trials - for which an indefinite moratorium was recommended by a Supreme Court-appointed committee till the government fixes regulatory and safety aspects - as relevant because majority of Filipino farmers are also small-scale small-scale farmers. farmers. Further, Further, the precautionary approach entailed inputs from all stakeholders, including the marginalized farmers, not just the scientific community. This proceeds from the realization that acceptance o f uncertainty is not only a scien tific issue, but is related related to public policy and involves an ethical dimension. For scientific scientific research alone will not resolve all the problems, but participation of different stakeholders from scientists to industry, NGOs, farmers and the public will provide a needed variety of perspective foci, and knowledge. (International Service for the Acquisition of AgriJ&otech Applications, Inc. v. Greenpeace Southeast Asia (Philippines), et al., GR No. December 8, 2015, En Banc [Villarama]) Trial Proposal o f Bt (Bacillus th uringiensis) Talong Talong The crystal toxin genes from the soil bacterium Bacillus thuringiensis (Bt)  (Bt)  were incorporated into the eggplant (talong (talong)) genome to produce the protein CrylAc which CrylAc which is toxic to the target insect pests. CrylAc  CrylAc  protein is said to be highly specific to lepidopteran larvae such as the fruit and shoot borer (FSB), the most destructive insect pest of eggplant. (International (International Service Service fo r the Ac qu isition o f Agri-biotech Applications, Inc. Inc. v.

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Greenpeace Southeast Asia (Philippines), etal., GR No. 209271, December 8, 2015, Banc [Villarama]) Mosqueda, et al. v. Filipino Banana Growers & Exporters Association, Inc., et al., G.R. No. 189185, August 16, 2016, En Banc (Bersamin) The Precautionary Principle The principle of precaution originated as a social planning principle in Germany.\)n the 1980’s, the Federal Republic of Germany used the Vorsogeprinzip (“foresight Vorsogeprinzip  (“foresight principle”) to justify the implementation of vigorous policies to tackle acid rain, global warming and pollution of the North Sea. It has since emerged from from a need to protect humans and the environment from increasingly unpredictable, uncertain, and unquantifiable but possibly catastrophic risks such as those associated with Genetically Modified Organisms and climate change. The oft-cited Principle 15 of the 1992 Rio Declaration on on Environment and Development (1992 Rio Agenda ) first embodied this principle x x x. In this this jurisdiction, the principle of precaution appearing in the Rules o f Procedure Procedure for  Environmental Cases  Cases  (A.M. No. 09-6-8-SC) involves matters of evidence in cases where there is lack of full scientific certainty in establishing a causal link between human activity and environmental effect. effect. In such an event, event, the courts may construe a set set of facts as warranting either judicial action or inaction with the^goal of preserving and protecting the environment.  Ap  A p p lic a tio n o f the Pr ec au tio na ry ’rincipli It is notable x x x that the prerautjpnary principle shall only be relevant if there is concurrence of three elements^ namely: uncertainty, threat of environmental damage  damage  and serious or irreversible harm. In situations situations where the the threat is relatively certain, certain, or that the causal link between an action and environmental damage can be established, or the probability of occurrence can be calculated, only preventive, not precautionary measures, may be taken. taken. Neither will the precautionary principle apply if there is no indication indication of a threat of environmental harm, or if the threatened harm is trivial or easily reversible. In Mosqueda, e t al. al. v. Pilipino Banana G rowers & Exporters Asso ciation , Inc., Inc., et al., (G.R. No. 189185, August 16, 2016, En Banc [Bersamin]),  [Bersamin]),   it was argued that the ^ jd in a n c e enacted by the City of Davao prohibiting prohibiting aerial aerial spraying of pesticides pesticides is justified sin^e it will protect the health of residents and the environment against the risks posed by of chemicals applying applying the precautionary principle. principle. The Court did not find the en'ce of the elements for this principle to apply, thus, it held: We cannot see the presence of all all the elements. To begin with, with, there has been no scientific scientific study. study. Although the precautionary principle principle allows lack of full scientific certainty in establishing a connection between the serious or irreversible harm and the human activity, its application is still premised on empirical studies. Scientific analysis is still a necessary basis for effective policy choices under the precautionary principle. principle.  Address: Un it 2 ,4th Floor, Espaff Espaffa a Place Place Building, 1139 Adelin a Stree t corne r Espana Espana Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com  / www.facebook.com/vil www.facebook.com/villasislawcent lasislawcenter er / www.remediallawdoctrines. www.remediallawdoctrines.blogspot.com blogspot.com [email protected] / [email protected]  / mvplawoffice(5)gmail.com mvplawoffice(5)gmail.com Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

Precaution is a risk management principle invoked after scientific inquiry takes place. place. This scientific scientific stage is often considered synonymous with risk assessment. As such, resort to the principle shall not be based based on anxiety or emotion, emotion , but from a rational decision rule, based on ethics. As much as possible, a complete and objective scientific evaluation of the risk to the environment or healthy should be conducted and made available to decision-makers for them to choose tffe. most appropriate course of action. action. Furthermore, Furthermore, the positive and negative an activity are also important in the application of the principle. principle. The potential harm resulting from certain activities should always be judged in view of jj#^pb&ntial benefits they offer, while the positive and negative effects of potentialp'lfegautiona^' M. measures should be considered. The only study conducted to validate the effects of aenal%^f^ift|lfippears to Activities ies,, on the Issue be the Summary Report on the Assessme nt and Fact-Finding Activit Yet, the fact^n ^pg -teatn -lhat genera generated ted of Aerial Spraying in Banana Plantations. Yet, the report was not a scientific study that could justify the resort tp-the precautionary principle. principle. In fact, the Sangguniang Bayan ignored the findings arid conclusions of the fact-finding team x x x. <5, / £

We should not apply the precau^onaryapproach in sustaining the ban against aerial spraying if little or nothing is k no ^ri it* it*ff the e* act or potential potential dangers that aerial spraying may bring to the health of tpe residents within and near the plantations and to the integrity and balance of the en# qn m pn t. It is dangerous to quickly presume that the effects of aerial spraying would beadverse even in the absence of evidence.  Accordingly,  Accordin gly, for lack of o f scientific scienti fic data,sup d ata,supporting porting a ban on aerial spraying, Ordinance No. No. 0309-07 should be,.s be,.stru truck ck dc j^n j^ n jd r being unreasonable. y ,f v Resident Marine MamnialsKof the P rote cte d S eascape Tanon Strait, et al. al. v. Secretary  An ge lo Reyes, Reye s, et a )„ & R . No. 180771, A p ril 21, 2015, 201 5, En Ba nc (Leo (L eona nardo rdo -De -D e Castro Ca stro)) Petitioners iriLthtiS case were marine mammals (toothed whales, dolphins, and other cetacean cetacean sp ^tg g^ b u fc y ^ ' joined by human human beings beings as “stewards “stewards of nature nature.. ..^jAre ..^jAre the^e marin e mammals the proper parties to file the petition? In this case, ac tual tu al ly^© ly ^© SCjdid not rule rule squarely on this issue. issue. The Court ruled ruled instead instead that the issue of p e t ti e r tHSjj^ tHSjj^fna fnari rine ne mamm mammal als s have have locus standi  to file the petition had been eliminated 5, Rules for the Enforcement of Environmental Laws, which allows allow s any f  because bf Section 5, file a petition for the enforcement of environmental laws (Citizen’s Suit) and, in their n, these marine mammals were joined by human beings as “stewards of nature.” Service Service C ontracts with Foreign Co rporations for Exploration o f Oil Oil and Petroleum Petroleum Produ cts (Paragraph 4, Section 2, Article XII, XII, 1987 1987 Co nstitutio n) Res ident Marine Mammals o f the Protec ted Seascape Tanon Strait, Strait, et al. al. v. Secretary  An ge lo Reye s, e ta l., l. , GR Nos. N os. 180771 a n d 181527, A p ri l 21, 2015, En Ba nc (Leo (L eo na rdord oDe Castro)  Address: U nit 2 , 4th Floor, Espafia Place Place Building, 1139 Adeli na St reet corne co rnerr Espafia Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com www.villasislawcenter.com /  / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com villasislawcenter villasislawcenter(5>gmail. (5>gmail.com com / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

In these consolidated petitions, this Court has determined that the various issues raised raised by the petitioners may be condensed into two primary issues: Proc edu ral Issue: Locus standi standi of the Resident Marine Mammals and Stewards x x x; and Main I ssue: Legality of Service Contract No. 46. Procedural Issue heyrteye the The Resident Marine Mammals, through the Stewards, “claim” legal legal standing to file this action since they stand to be benefited or ir  judggnent in this suit, citing Oposa v. Factoran, Jr. They also assert their e faithful ir.favor and for performance of international and municipal environment laws their benefit. benefit. In this regard, they propound that they have a^ that they be accorded the benefits granted to them in multilateral uments that the Philippine Government had signed, under the concept o f sti sti autrui. Xxx In light of the foregoing, the need to giveLth^tesident Marine Mammals legal standing has been eliminated eliminated by our Rules, Rules, which a ti ^ r any Filipino citizen, citizen, as a steward steward of nature, nature, to bring to suit to enforce our environmental laws. laws. It is is worth noting here that the Stewards are joined as real parties in the Petition Petition and not jus t in representation of the named cetacean species. The Stewards x x x having shown in their petition that there may be possible violations of laws concerning th^habitat of the Resident Marine Mammals, are therefore declared to possess the legal standing to file th is petition. On the Leg ality o f Service C ontra ct No. No. 46 vis-a-vis Section 2, Artic le XII o f the 1987 Constitution This Court has previously settled the issue of whether service contracts are still allowed under the 1987 Constitution. In La Bugal,  Bugal,  we held that the deletion of the words “service contracts” in the 1987 Constitution did not amount to a ban on them perse. In fact, in that decision, we quoted in length, portions of the deliberations of the members of the Constitutional Commission (ConCom) to sh ow that in deliberating on paragraph 4, Section 2,  Article XII, they were actually actua lly referring to service contracts as understood in the 1973 onstitution, albeit with safety measures to eliminate or minimize the abuses prevalent ^jncrthe martial law regime.  A & e e m e n ts in v o lv in g Te ch nic al o r Fina Fi na nc ia l A ss ista is ta n ce are Se rvice rvi ce Co ntra nt ract cts s w ith Safeguards From the foregoing, we are impelled to conclude that the phrase agreements involving either technical or financial assistance, referred to in paragraph 4, are in fact service contracts. But unlike those of the 1973 variety, variety, the new ones are between foreign corporations acting as contractors on the one hand; and on the other, the government as  Address: Un it 2 ,4th Floor, Espaff Espaffa a Place Place Building, 1139 Adelin a Stree t corne r Espar Esparfa fa Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com  / www.facebook.com/vil www.facebook.com/villasislawcent lasislawcenter er / www.remediallawdoctri www.remediallawdoctrines.blogspot.com nes.blogspot.com /  / villasislawcenterOgmail. villasislawcenterOgmail.com com / [email protected] Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

principal or “owner” of the works. In the new service contacts, contacts, the foreign foreign contractor provide capital, technology and technical know-how, and managerial expertise in the creation and operation of large-scale mining/extractive enterprises; and the government, through its agencies (DENR, MGB), actively exercises control and supervision over the entire operation. In summarizing summarizing the matters discussed in the ConCom, we established that paragr 4, with the safeguards in place, place, is the exception exception to paragraph paragraph 1, Section 2 of Article Article X I^ T h e following are the safegua rds this Court enumerated in La Bugal: V Such service contracts may be entered into only with respect to min^§H^j>etrolet and other other minera minerall oils. oils. The grant thereof is subject subject to several several safeg ua rds ^w nb ng roic h are these requirements: requirements: (1) The Th e service contract shall be crafted in accordance with a general law that will set standard or uniform terms, conditions and requiremeffts.presumSBly to attain a certai certain n uniformit uniformity y in provi provision sions s to avoi avoid d th ^ ^ s s i& te iij^ert iij^ertion ion of terms terms disadvantageous to the country. country. . (\ % ) T (2) The President shall be the signatory oMhe gov^j^ijeht because, supposedly before before an agreement is presented presented to to th§ P ru d e n t for signature, signature, it will will have been been vetted several times over at different Iefy|te 4&e nsure that it conforms conforms to law and can withstand public scrutiny. scrutiny. \ v.>> (3) Within thirty days of the execeft^^greement, the President shall report it to Congress to give that branch of^otfqfnment an opportunity to look over the agreement and interpose timely objections, if any. ‘ Adhering to the aforementioned guidelines, this Court finds that SC-46 is indeed null and void for noncompliance with the requirements of the 1987 Constitution. Constitution. 1. The General Law on Oil Exploration The disposition, exploration, development, exploitation, and utilization of indigenous petroleum in the Philippines are governed by Presidential Decree No. 87 or the Oil Exploration Exploration and Development Act of 1972. 1972. X x x Contrary to the petitioners’ argument, Presidential Decree No. 87, although enacted in 1972, before the adoption of the 1987 Constitution, remains to be a valid law unless otherwiserepealed x x x. x. This Court could not simply assume that while Presidential Decree No. 87 had not yet been expressly repealed, it had been been impliedly repealed. X x x Consequently, we find no merit in petitioners’ contention that SC-46 is prohibited on the ground that there is no general law prescribing the standard or uniform terms, conditions, and requirements for service contracts involving oil exploration and extraction.

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

2. President was not the signatory to SC-46 and the same was not submitt Congress While the Court finds that Presidential Decree No. 87 is sufficient to requirement requirement of a general general law, law, the the absence absence of the two other other conditi conditions, ons, that that th^ fi- e s id e rt o i a signatory to SC-46, SC-46, and that Congress be notified of such contract, contract, re nd ere d nimfand nimfand vo il  As SC-46 was executed in 2004, its terms should have conformecKoot om W e the provision provisions s of Preside Presidential ntial Decr Decree ee No. No. 87, 87, but but also those of the 1987 1987 Q A t iU k u ^ X x^< Paragraph 4, Section 2, Article XII of the 1987 President himself enter into any service contract for the appeared to have been entered into and signed only by through its then Secretary, Vicente S. Perez, Jr., coi, requirement. Moreover, publi c respondents responde nts have neft neftfc fcie ierr s was subseque ntly notified of the execution of sucl sucl

fires that the troleum. SC-46 artment of Energy) said constitutional 5r alleged that Congress

Public Public respondents’ respondents’ implie implied d argument argument tn a H j^ e d on the “alter “alter ego principle, principle,”” their acts acts are are also also that that of then then Presid President ent M a c a ^ ^ A r r o y ^ , cannot cannot apply apply in this this case. case. In Joson v. Torres (352 Phil. 888, 915 [1998]), we [1998]),  we eWsnn^Khe concept of the alter ego principle or the doctrine doctrine of qualif qualified ied politica politicall a gm cy and iV lim its x x x. Under this doctrine>*R»ich rec<3%£es the establishment of a single executive, all executive and administrati^^^puizations are adjuncts of the Executive Department, the heads heads of the various e* & Jt ive depatme nts are assistants assistants and agents agents of the Chief Executi Executive, ve, and, and, exce except pt in in c a ^ ^ h e ^ h ^ m e f Exec Execut utiv ive e is is req requi uirred by by the the Con Const stit itut utio ion n or law law to ac act in person or the situation demand that he act personally, personally, the multifarious executive anc^administrative functions of the Chief Executive are performed by and through the executive and the acts of the Secretaries of such departments, performed performed and pr om ul ga tio n tge regular course course of busine business, ss, are, unless unless disapproved disapproved or reprobat reprobated ed by the O lC ^ E x e c i^ ^ presuma presumably bly the acts acts of the Chief Chief Exe Execu cuti tive ve.. WhileWhile- the requirements in executing service contracts in paragraph 4, Section 2 of . Artrete XlJ-of the 1987 Constitution seem like mere formalities, they, in reality, take on a ^u ch jig g e r role role.. As we have have explain explained ed in La Bugal, they Bugal, they are the safeguards put in place byWTe framers of the Constitution to “eliminate or minimize the abuses prevalent during the martial martial law regime.” Thus, they are not jus t mere formalities, which will rende r a contract unenforceable but not void, if not complied with. They are requirements placed, not jus t in an ordinary statute, but in the fundamental law, the non-observance of which will nullify the contract. X x x

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 As this Court has held in La Bugal,  Bugal,  our Constitution requires that the Presided himself be the signatory of service agreements with foreign-owned corporations involving the exploration, development, and utilization of our minerals, petroleum, and other mineral oils. This power cann ot be taken lightly. In this case, the public respondents have failed to show that the President had an participation in SC-46. SC-46. Their argument that their acts are actually the the acts of then Preside. Preside. Macapagal-Arroyo, absent proof of her disapproval, must fail as the requirement that the President herself enter into these kinds of contracts are embodied not just in any ordinary statute, statute, but in the Constitution itself. itself. These service contracts involving the exploitation, exploitation, development, and utilization of our natural resources are of paramount interest to the present and future generations. generations. Hence, Hence, safeguards were put in place to insure that the guidelines set by law are meticulously observed and likewise to eradicate the corruption that may easily penetrate departments and agencies by ensuring that the President has authorized or approved of these service contracts herself. Even under the provisions of Presidential Decree No. 87, it is required that the Petroleum Board, now the DOE (Department of Energy), obtain the President’s approval for the execution o f any contract under said statute x x x. Even Even if we were inclined to relax the requirement in La Bugal to Bugal to harmonize the 1987 Constitution with the aforementioned provision of Presidential Decree No. 87, it must be shown that the government agency or subordinate official has been authorized by the President to to enter into such service contract for the government. Otherwise, Otherwise, it should be at least shown shown that the President subsequently approved approved of such contract explicitl explicitly. y. None of these circumstances is evident in ’ On the the lega lity of 

ct No. 46 vis-a-vis O ther Laws

Xxx ot executed for the mere purpose of gathering information on Moreover, resources in the Tanon Strait as it also provides for the parties’ rights the possible to extraction and petroleum production should oil in commercial and obligation' quantifes be fo exist in the area. While Presiden tial Decree Decre e No. No. 87 may serve as the ich a service contract for petroleum exploration and extraction may be generaffi§^/ up exploitation and utilization of this energy resource in the present case may  jthorize  jtho rize b^^lowi 6 nly through a law passed by Congress, since the Tanon Strait is a NIPAS NatiBfeaffntegrated Protected Areas System) area. Since there is is no such law specifically specific ally ying oil exploration and/or extraction in the Tanon Strait, no energy resource exploitation and-utilization may be done in said protected seascape.  Ac ad em ic Freedo Fre edo m  Acade  Academic mic freedo freedom m shall shall be enjo enjoye yed d in all all institu institutio tions ns of highe higherr learnin learning. g. (Sec. 5[2],  Art. XIV XIV,, 1987 1987 Constitution)  Address: U nit 2 ,4th Floor, Espaffa Espaffa Place Place Building, 1139 Adelina St reet co rner Espana Espana Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com www.villasislawcenter.com /  / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / www.remediallawdoctrines.blogspot.com  / villasislawcenterOgmail.com / mvpIawofficeOgmail.com Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

 Academic  Acad emic freedom of educational educatio nal institutions has been defined as the right of school or college to decide for itself, its aims and objectives, and how best to attain them free from outside coercion or interference save possibly when the overriding public welfare calls for some restraint. restraint. It has a wide sphere of autonomy certainly extending to the choice choice of students. Said constitutional provision is not to to be construed in a niggardly manner or in a grudging fashion. That would be to frustrate frustra te its purpose and nullify its intent. (University San Ag ustin , Inc. v. Co urt o f App eals, 230 SCRA SCRA 761, 761, 774-77 774-775, 5, March 7 ,199 4 [Noc o What are the the essential freedoms freedoms subsu med in the term term “academic freedom ” ? In  Atene o de Manila University Univer sity v. Capulong (G.R. (G.R. No. No. 99327, 27 93)7msj Court cited with approval the formulation made by Justice Felix Frankfurtej ssenti freedoms subsumed in the term term “academ ic freedom” encompassing not oi oi to determine x x x on academic grounds who may teach, what may be t hov/"it shall be taugh t,” but likewise “who may be admitted to study.” We itioned its invocation by a school in rejecting students who are academica a laywoman seeki seeking ng admis admissio sion n to a sem semin inary ary,, or studen students ts vio la tin g J ^ h d U on Discipline.” (Isabelo, (Isabelo, Jr. Jr. v. Perpetual Help College o f Rizal, Rizal, Inc. Inc.,, 2 f SCRA SCRA 1 97, Nov. 8, 1993, En Banc [Vitug])

\

THE STRUCTURE OF f e * E R N M E N T

The main distinction between a presid leatial ial form fornrtof government and a parliamentary form of government government In a presidential form of government, there is the observance of the doctrine of separation of powers; in a parliamentary government, instead of separation of powers, there is the union o f the executive and legislative branches. In a presidential form of government, the President is elected by the people at large; in a parliamentary government, the Prime Minister is elected not by the people at large but by members of Parliament. Tests Tests o f a Valid Delegation Delegation o f Power  In order to determine whether there is undue delegation of legislative power, the Court has adopted two tests: the completeness test and and the sufficient standard standard test. Under the first test, the law must be complete in all its terms and conditions when it leaves the legislature such that when it reaches the delegate, the only thing he will have to do is to enforce it. The second test mandates adequate guidelines or limitations in in the law to determine the boundaries of the delegate’s authority and prevent the delegation from running riot. (Jos e Jesu s M. Disini, Jr., e t al. v. The Se creta ry o f Jus tice, et al., al., G.R. G.R. No, No,.. 203335, Feb. 11, 2014, En Banc [Abad])

The Legislative Department (Article VI, 1987 1987 Constitution ) The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent  Address: Un it 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet corn er Espaiia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.facebook.com/vi www.facebook.com/villasislawcenter llasislawcenter / www.remediallawdoctri www.remediallawdoctrines.blogspot.com nes.blogspot.com villasislawcente villasislawcenter(5>gm r(5>gmail.com ail.com / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

 Article VI, 1987 Constitution) Is legislative legislative po wer exclusive ly vested in in the Congress? R.A. No. 6735 (The Initiative and Referendum Law) The Principle of Bicameralism The The Bicameral Conference Con It is a mechanism for com of Representat Representatives. ives. By the nati capable of producing unexpected own mandate. Philippine Judges Finance) The Bills That Are Required to (Section 24, 24, Artic le VI o f the the 19i 19i It is important to note, hov the House of Representatives is i propose or concur with amendme The Party-L ist System The 1987 Constitutiofeprc Simply put, the party-list system is intended to democratize political power by giving political parties that cannot win ill legiefattvfe district elections a chance to win seats in the House of Representatives. Representatives. The v o l^ t elects two two representatives in the House of Representatives: Representative Representatives: s: one for his or her legislative district; and another for his or her party-list group or organization of choice. (Atong Pagiaum, Inc., et al. v. COMELEC, G.R. No. 203766, 694 SCRA 477,  A p ri l 2, 2013, ErL_ ErL_Ba Bang ngJ£&rpio]) J£&rpio]) Parameters to Determine Who May Participate in Pa rty-List Elections In cntefrnining who may participate in the coming 13 May 2013 and subsequent p a y lis t A ct io n s, the COMEL COMELEC EC shal shalll adhere to the the foll followi owing ng paramet parameters ers:: different groups may participate in the the party-list system: system: ( 1) national parties anizations, (2) regional parties or organizations, and (3) sectoral parties or organizations. 2. National National parties or organizations and regional parties or organizations do not need to organize along sectoral lines and do not need to represent any “marginalized “marginalized and underrepresented” sector.

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3. Political parties can participate participa te in in party-list elections provided they register unde the party-list system and do not field candidates cand idates in legislative district elections. A political party, whether major or not, that fields candidates in legislative district elections can participate in party-list elections through its sectoral wing that can separa tely register under the the party-list system. The sectoral wing is by itself an independent sectoral party, and is linked to a political party through a coalition. 4. Sectoral parties or organizations may either be “marginalized underreprese underre presented” nted” or lacking in in “well-defined “well-defi ned political constituenci constit uencies.” es.” It is enough that their principal advocacy pertains to the special interest and concerns of their sector. sector. The sectors that are are “marginalized and underrepresented” include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans, veterans, and overseas workers. The sectors that lack “well“welldefined political constituencies” include professionals, professionals, the elderly,-women elderly,-women and the youth. 5. A majority of the the members of sectoral sectoral parties or organizations that represent the “marginalized and underrepresented” must belong to the “marginalized and underrepresented” sector they they represent. represent. Similarly, Similarly, a majority of the members of sectoral parties or organizations that lack “well-defined political constituencies” must belong to to the sector they represent. represent. The nominees of sectoral parties parties or organizations that represent the “marginalized and underrepresented,” or that represent those who lack “well-defined political constituencies,” either must belong to their respective sectors, or must have a track record of advocacy for their respective sectors. sectors. The nominees of national and regional regional parties or organizations must be bona fide members fide members of such parties or organizations.

6. National, regional, and sectoral parties or organization organ ization s shall not be disqualified disqu alified if some of their nominees are disqualified, provided that they have at least one nominee who remains qualified. (Atong Paglaum, Inc., et al. v. COMELEC, G.R. No. 203766, 694 SCRA 477?April 2, 2013, En Banc [Carpio]) Based on the foregoing; it can be inferred that although the party-list system is a social justice tool designed to have the marginalized and underrepresented sectors of society represented in the House of Representatives, nonetheless, the dominant political parties are not totally prohibited from participating in party-list elections.  Although,  Although , as a rule, they may not particip ate in party-list party-l ist electio ns if they field candidates in district elections, however, by way of an exception, they may still participate through their sectoral wing, provided that the sectoral wing is registered separately as a ilitical party in the COMELEC and is linked to the dominant political party through a Hon. (Atong Paglaum, Inc., et al. v. COMELEC, G.R. No. 203766, 694 SCRA 477, il3 , En Banc [Carpi [Carpio]) o])

Bagong Bayani - OFW Labor Lab or Party v. COME COMELEC LEC The religious sector is expressly prohibited from participating in party-list elections (Sec. 5, 2nd par., Art. VI, 1987 Constitution). Religious Religiou s denominations denomina tions and sects are even prohibited from being registered as political parties in the COMELEC (Sec. 2, par. 5, Art. IXC, 1987 Constitution).  Address: Un it 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet corn er Espafia Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.facebook.com/vi www.facebook.com/villasislawcenter llasislawcenter / www.remediallawdoctrines. www.remediallawdoctrines.blogsDot.com blogsDot.com [email protected] / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

However, the Supreme Court clarified, based on the intent of the framers of the 198 Constitution, that what is prohibited is the registration of a religious sect as a political party; there is no prohibition against a priest running as a candidate.  An g Ladla La dla d-L GB T Pa rty v. Co m m iss ion io n on Elec El ec tion s, G.R. G.R. No. 190582, 618 SCRA 32,  Ap  A p ril 8, 2010, En Banc (Del Castillo) The act of the COMELEC of not allowing the registration of Ang Ladlad-LGB] as a political party to participate in party-list elections on the ground that its mer “immoral,” citing citing verses from the Bible Bible and and the Koran, Koran, is tainted with with g ra y ^ b C discretion as it violated the non-establishment clause of freedom of religion^lrwktherefd should be nullified. Under this non-establishment clause o f freedom of reMigior^iheyUJlw ligior C, as an agency of the government, is not supposed to use religious stgflQaips irvfe decisions and actions. Veterans Federation Party v. COMELEC ^nd Unde Underr Sec Sec.. 5, 2n a par. par.,, Art Art.. VI VI of the Cons Consti titu tuti tion, on, the the list list repre represen sentat tative ives s sha shall ll constitute twenty (20) percent of the total number of representatives, including those under the party-list. Based on this, the ratio is 4:1,7.£ :; J<3r every four fou r (4) district represen tatives, there should be one ( 1) party-list representative. In the computation of the number of seats allocated to party-list representatives, fractional representation is not allowed is it will exceed the twenty (20 ) allocated seats for party-list representative s and, therefore, will violate the Constitution. In such a case, what should be done is simply to disregard the fraction. The The Inviolab Inviolab le Parameters to Determine the W inners in in P arty -list Election s are:

1. 2. 3. 4.

the twenty (20) percent allocation; allocation; the two (2) peroent threshold; the three (3) - seat limit; limit; and proportiona l representation representa tion

Barangay Association for National Advancement and Transparency (BANAT) v. COMELEC, G.R. No. 179271, 586 SCRA 210, July 2, 2009, En Banc (Carpio) 7Wh at was declared unconstitutional in this case was not the two (2) percent threshold itself; itself; but rather, the continued application o f the two (2 ) percent threshold in determining the additional seats that will be allocated to winne rs in party-list elections. Thus, the SC clarified: clarified: “We rule that, in computing the allocation of additional seats, the continued operation of the two percent threshold for the distribution of the additional seats as found in the second secon d clause of Section 11(b) of R.A. No. 7941 7941 is unconstitution al. This Court finds that the two percent threshold makes it mathematically impossible to  Address: U nit 2 , 4th Floor, Espafia Espafia Place Place Building, 1139 Adel ina St reet co rne r Espafia Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.co m/villasislawcenter / www.remediallawdoctrines.blogspot.com / www.remediallawdoctrines.blogspot.com / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

achieve the maximum number of available party list seats when the number available party list seats exceeds 50. 50. The continued operation operation of the two percent threshold in the distribution of the additional seats frustrates the attainment of the permissive ceiling that 20% of the members of the House of Representatives shall consist o f party-list party-list representatives. representatives. “X x x “We therefore strike down the two percent threshold only in relatiojj distribution of the additional seats as found in the second clause of Sectij R.A. R.A. No. 7941. The two percent threshold presents an unwarranted full implementation of Section 5(2), Article VI of the Constitution attainment attainment of “the broadest broadest possi possible ble represent representatio ation n of party, party, ^ ^ o r a l < interests in the House of Representatives.”

Party-list Party-list Represen Representat tatives ives and and D istrict Represe Representat ntatives ives ha ve fK ^a m ^% jgh ts, Salari Salaries, es, and Emoluments Once elected, both the district representatives and the party-list representatives are treated in in like manner. They have the same deliberative righ t^s ^fa rie s, and emoluments. emoluments. They can participate in the making o f laws that will directly benefit their legislative districts or sectors. sectors. They are also subject to the same term term limitation limitation of three years for a maximum of three consecutive terms. (Daryl Grace J. Abayon v. The Honorable House of  Representatives Electoral Tribunal, eta!., G.R. Nos. 189466 and 189506, 612 SCRA 375, 11 February 2010, En Banc [Abad]) ^

Oversight Powers and Functions o f Congress Makallntal v. COMELEC (Justice Reynato S. Puno’s Separate Concurring Opinion;  AB AK AD A Gu ro Pa rty L is t v. S ec reta re tary ry P ur isim a) Post-enactment measures undertaken by Congress to enhance its understanding of, and influence over, the legislation it has enacted. This is intrinsic in the grant of legislative power itse lf to Congress, Congress, and integral to the system of checks and balances inherent in a democratic system of government. tegorie^&f Oversight Powers and Functions Legislative Scrutiny . Legislative Investigation 3. Legislative Legisla tive Supervision What is a Legislative Veto?  A disapproval disapp roval by Congress, or by an oversig ht committee commit tee of Congress, of an administrative regulation promulgated by an administrative body or agency.  Address: U nit 2 , 4th Floor, Espaifa Place Place Building, 1139 Adelina St reet co rner Espafia Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.villasislawcenter.com  / www.facebook. com/villasislawcenter / www.remediallawdoctrines.blogsDot.com www.remediallawdoctrines.blogsDot.com villasislawcenterOgmail.com / mvplawoffice mvplawoffice(5)gma (5)gmail.com il.com Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

The Power of Appropriation No money shall be paid out of the Treasury except in pursuance of an appropriations made by law. law. (Section 29 [1], Ar ticle VI, 1987 Con stitution) Under the Constitution, the power of appropriation is vested in the Legislatur subject to the requirement that appropriations bills originate exclusively in the Hous&Representatives with the option of the Senate to propose or concur with amendments. While the budgetary process commences from the proposal submitted by the President to Congress, it is the latter which concludes the exercise by crafting an appropriation act it may deem beneficial to the nation, based on its own judgment, wisdom and purposes. Like any other piece o f legislation, legislation, the appropriation act may then be su sceptible to objection from the branch tasked to implement it, by way of a Presidential veto. veto. Thereafter, budget execution execution comes under the domain o f the Executive branch which deals with the operational aspects of the cycle including the allocation and release of funds earmarked for various projects. Simply put, from the regulation of fund releases, the implementation of payment schedules and up to the actual spending of the funds specified in the law, the Executive takes the wheel. The DBM (Department of Budget and Management) lays down the guidelines for the disbursement of the fund. This demonstrates the power given to the President to execute appropriation laws and therefore, to exercise the spending per se of the budget. (Lawyers

against Monopo ly and Poverty [LAMP] v. The The §e $w tary o f Budget and Manageme Management nt,, G.R. No. No. 16 16498 4987, Apr. 24, 2012 2012,, En Banc [ i m k f g h jp ^ The “ Pork Barrel” System Consider Considering ing petitioners petitioners'' s d ^ is s io n ^ W in referenc reference e to its local local concept concept and lega legall hist histor ory, y, the the Court Court defin defines es the Pork Barrel Sy ste m as the co llective bod y o f rules and practices practices that that govern govern the manner by ^ fiic h lump-sum, lump-sum, discretionary discretionary funds, funds, primarily intended for local projects, are utilized through the respective participations of the Legisla tive and Executive branches of governm ent, inc ludin g its members. The Pork Pork Barrel Barrel System involves two (2) kinds of lump-sum, lump-sum, disc retionary funds: funds:

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

Second, there is the Presidential Pork Barrel which is herein defined as a kind of -s u n discretionary discretionary fund which allows the the President President to to determine determine the manner of ition. X x x the Court shall shall delimit the use of such term to to refer only to the paya Funds and the Presidential Social Fund. (Belgica v. Ochoa, G.R. No. 208566,

SCRA 1, 1, 105-106, Nov. 19, 19, 2013, En Banc Ban c [Perlas-B [Perl as-Berna ernabe] be])) The The “Pork B arrel” System System Declared Un constitutional: Reasons Reasons The Court renders this Decision to rectify an error which has persisted in the chronicles chronicle s of our history. In the final analysis, the Court must strike down the Pork Barrel System as unconstitutional in view of the inherent defects in the rules within which it

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operates. To recount, recount, inso far as it has has allowed legislators to wield, in varying gradations, gradations, non-oversight, post-enactment authority in vital areas of budget execution, the system has violated the principle of separation of powers; insofar as it has conferred unto legislators the power of appropriation by giving them personal, discretionary funds from which they are able to fund specific projects which they themselves determine, it has similarly violated the principle of non-delegability of legislative power; insofar as it has created a system budgeting wherein items are not textualized into the appropriations bill, it has flouted prescribed procedure of presentment and, in the process, denied the Preside power to veto items; insofar as it has diluted the effectiveness of congressional by giving legislators a stake in the affairs of budget execution, an aspect of^overl which they may be called to monitor and scrutinize, the system has equally jtffpated pu acc oun tability; insofa insofarr as as it has has author authorize ized d legisla legislato tors rs,, who are are n a ^n al o ffe rs , to intervene in affairs of purely local nature, despite the existence of ca pa bly local local institutions, it has likewise likewise subverted subverted genuine genuine loca l auto no my ; and again, insofar insofar^as ^as if fia s^ an fer re d to the President the power to appropriate funds intended by law fgr^energy-related purposes only to other purposes he may deem fit as well a s other j£UOT £jand s under the broad classification of “priority infrastructure development projects^ it'has dnce more transgressed the princi principle ple of non -delega bility. (Belgica, et al. v. Exec. Sec. Paqufto N. Ochoa, et al.,

G.R. G.R. No. 208566 208566,, 710 SCRA 1, 1, 160-161 160-161,, Nov. 19, 19, 2 $ 3 , En Banc JPe rlas-B em abe ]) The Power of Augme ntation

\

No law shall be passed authorizing^^ transfer of appropriations; however, the President, President, the President of rth e Senate, the Speak er of the House of Representatives, the Chief Justice? of WS Supreme Court, and the heads of Constitutional Commissionigrpay, by law, be authorized to augment any item in the general appropriations law for % ei r respective offices from savings in other items in their respective appropriations. (S& ition 25 [5], [5], Article VI, 1987 1987 Constitution) w -

Requisites for the Vcffn^ransferpf appropriated funds under Section 25(5), Article VI o f the the 1987 Constv! ^ n^ \ . v yr   The tta n s fe rd f appropriated funds, to be valid valid under Section 25(5), 25(5), Article VI VI of the I upon a concurrence of the following requisites, requisites, namely: Constitution, rtitteyae /^ (1 ) Thera Js a law law authorizing the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice o f the Supreme Court, fcndmie heads of the Constitutional Commissions to transfer funds within their pective offices; (5^The funds to be transferred are savings generated from the appropriations of their respective offices; and (3) The purpose of the transfer is to augment an item in the general appropriations law for their respective offices. (Maria Carolina P. Araullo, et al. v. Benigno

Simeon C. Aquino III, et al. G.R. No., 209287, 728 SCRA 1, July 1, 2014, En Banc [Bersamin]) Congressional Investigations

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There are two (2) kinds of congressional investigations, i.e.,  i.e.,  inquiry in aid o legislation (Section 21, Article VI, 1987 Constitution); and the question hour (Section 22,  Article VI, 987 Constitutio n) Inqu iry in A id o f Legislation (Section 21, 21, Article VI, 1987 1987 Constitution) Constitution) In Arn In  Arnaul aultt v. Nazareno, the Nazareno, the Court held that intrinsic in the grant of legislative po itself to Congress by the Constitution is the power to conduct inquiries in aid of legislation, for Congress may not be expected to enact good laws if it will be denied the power investigate. Note that Arn that  Arnault ault was  was decided in the 1950’s under the 1935 Constitution, and in that Constitution there was no provision similar to that which is expressly provided in the present Constitution. Constitution. Yet, as early as that case, case, the Court already already recognized that this power is intrinsic in the grant o f legislative power itself to Congress by the Constitution. Constitution. In Bengzon, Jr. v. Senate Blue Ribbon Committee,  Committee,   two (2) relevant questions were raised. First,  First,  is this power of each House of Congress tp conduct inquiries in aid of legislation absolute, or are there limitations? Second, is thi^'po thi^'poVw Vwer er subject to judic ial review, or is it a political question? questio n? 'A \ \ II  As to the t he first firs t question, the Court clarified that tha t a mere reading of Section 21, Article VI of the Constitution will sho w that the power is n ot really absolute; in fact there are three (3) important limitations imposed therein, and thes e are: 1. The inquiry must be in aid of legislation; 2. It must be conducted conducted in accordance with the duly duly published rules of procedure of a House of Congress conducting such inquiry; and 3. The rights of persons appearing in or affected by such inquiry shall be respected.  As to the second, the Court C ourt held th at since sin ce it had alread y been shown th at the th e power is not really absolute, in fact, there are important limitations, it follows, therefore, that such is subject to judicial review especially in view of the expanded power of the Court to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of  jurisdictio  juris dictio n on the part pa rt of any branch o r instrumental instr umentality ity of the government. That’s why in that case of Bengzon, Jr.,  Jr.,  the Court granted the petition for certiorari and ordered the Senate Blue Ribbon Committee not to further conduct the inquiry since the urt found that the purpose of said inquiry was not really in aid of legislation; in fact the se was an encroachment on a judicial prerogative. Question H ou r (Section (Section 22, Artic le VI, 1987 1987 Constitution)  As explained explain ed by the Court in Senate v. Ermita,  Ermita,   this question hour is not really a regular feature of a presidential government, but is merely a borrowed concept from a parliamentary government. government. (PHILCOMSAT Holdings Corporation v. Senate, G.R. No. 180308, June 19, 2012 En Banc [Perlas-Bernabe])  Address: U nit 2 ,4th Floor, Esparia Esparia Place Place Building, 1139 Adelin a Stre et co rner Espana Espana Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.villasislawcenter.com  / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com villasislawcenterOgmail.com / [email protected] Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

The Senate Committees’ power of inquiry relative to PSR No. 455 has been passe upon and upheld in the consolidated cases of In the Ma tter of the Petition Petition for Habeas Corpus ofCa milo L. Sabio Sabio which cited Article VI, Section 21 o f the Constitution. Constitution. The Court explained that such conferral of the legislative power of inquiry upon any committee of Congress must carry with it all powers necessary and proper for its effective discharge. discharg e. On this score, the Senate Committee cannot cann ot be said to have acted with gr= abuse of discretion amounting to lack or in excess of jurisdiction when it subc Committee Resolution No. 312, 312, given its constitutional constitutional mandate to conduct le a s live inqui inquiri ries. es. Nor can can the the Sena Senate te Committ Committee ee be be faulte faulted d for for doing doing so on the very very sa jr*~ ^" ^ v the assailed resolution resolution was submitted. submitted. The wide latitude given given to Congress these legislative inquiries has long been settled, otherwise, Article VI, Se^fola 21 rendered pointless. Neri v. Senate Senate Comm ittee ittee on Acc ou ntab ility ility o f Public Officers/ti Officers/tiQd Qd Ihyesfigations, Ihyesfigations, 564 564 SCRA 152, Sept 4, 2008, En Banc (Leonardo-De Castro) Ther There e is a Recognized Presumptive Presidential Com mfinication&Qrfvil mfinication&Qrfvilege ege

The Court, in the earlier case of Almonte v. yfisque^|ffijjmfecl that the presidential communications privilege is fundamental to th^peration of government and inextricably rooted rooted in the separation of pow ers under the Even Senate v. Ermita   reiterated this concept. There, the Court enumerate enume rate which the claims of executive Chavez, Chavez v. Presidential privilege was recognized, among thei Commission on Good Government (PCG 'javez v. PEA. The Court articulated in these cases that “there are certain types of  5tion 5tion which the government may w ithhold from the public,” that there is a “government privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters”; and that “the right to information does not extend to matters recognized as ‘privileged information’ under the separation of powers, by which the Court meant Presidential conversations, correspondences, and discu ssion s in closed-do or Cabinet meetings. meetings. Xxx The constitutional infirmity found in the blanket authorization to invoke executive privilege granted by the President to executive officials in Sec. 2(b) of E.O. No. 464 does not obtain in this case. In this case, it was the President herself, through Executive Secretary Ermita, who ed executive privilege on a specific matter involving an executive agreement between e r w p p in e s and China, China, which was the subject of the three (3) questions questions propounded propounded to to ner Neri in the course of the Senate Committees’ investigation. investigation. Thus, the factual seffing of this case markedly differs from that passed upon in Senate v. Ermita. Moreover x x x the Decision in this present case hews closely to the ruling in Senate v. Ermita,  to wit: Executive Privilege

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The phrase “ex ecutive privilege privilege is no t new in in this jurisdiction . It ha been used even prior to the promulgation of the 1986 Constitution. Constitution. Being of  American  America n origin, it is best understood in light o f how it has been defined and used in the legal literature of the United States. Schwartz defines executive privilege as “the power of the Government to with ho ld inform ation from the public, the the courts, and the Congress .” Simil Similar arly ly,, Rozell defines it as “the right of the President and high-level executive branch officers to withhold information from Congress , the courts, and ultimately ultima tely the public.” X x x In In this jurisdiction, the doctrine of executive privilege was recognized by this Court in  Almonte  Almon te v. Vasquez. Vasquez. Almonte Almon te   used the term in reference to the same privilege subject of Nixon. It quoted the following portion of the Nixon decision Nixon decision which explains the basis for the privilege: “The expectation of a President to the confidentiality of his conversations and correspondences, like like the claim o f confidentiality confidentiality of  ju d ic ia l de lib er atio at io ns , for f or example, he has all the values value s to which whi ch we w e accord ac cord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making.  A President Presi dent and those who assist him must be free to explore alternatives in the process of  shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations  ju s ti fy in g s pr es um pt ive iv e p riv ile g e fo r P re side si de ntia nt ia l co m m u ni ca tio ns . The privilege is fundamental to the the ope ration of government and inextricably rooted in the separation separation o f powers under the the Co nstitution x x x.” Clearly, therefore, even Senate v. Ermita  Ermita  adverts to “a presumptive privilege for Presidential communication,” which was recognized early in  Almon te v. Vasquez. To construe construe the passage passage ^ Senate v. Ermita to x x x referri referring ng to the non-existenc non-existence e of a “presumptive authorization” of an executive official, to mean that the “presumption” in favor of executive privil^e nnclir^s heavily against executive secrecy and in favor of disclosure" is to distort the the Senate v. Ermita  Ermita  and make the same engage in selfcontradiction! 'enate T ErfRita  ErfRita  expounds on the constitutional underpinning of the relationship betwea^he 5t«Citive Department and the Legislative Department to explain why there loul lould d b ^ o implied implied authorizati authorization on or presumptive presumptive authorizatio authorization n to invoke executive executive privilege privilege President's subordinate officials, as follows: “When Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of privilege. privilege. They are are no t exempt by the mere fact that they are department heads. heads. Only one executive official  official  may be be exempted from this power - the President on whom executive power is vested, hence, beyond the reach of Congress except through the power of impeachment. It is based on he being the the highest official official of the the executive branch, and the due respect accorded to a co-equal branch of government which is sanctioned by a long-standing custom.”  Address: U nit 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet co rner Espafia Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com www.villasislawcenter.com /  / www.facebook.c om/villasislawcenter / www.remediallawdoctrines.blogspot.com / www.remediallawdoctrines.blogspot.com  / [email protected] / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

Thus, if what is involved is the presumptive privilege of presidential communication when invoked by the President on a matter clearly within the domain of the Executive, the said presumption dictates that the same be recognized and be given preference or priority, in the absence of proof of a compelling or critical need for disclosure by the one assailing such presumption. presumption. Any construction to the contrary will render meaningless the presumption presumption accorded by settled settled jurispruden jurispruden ce in favor of executive privilege. privilege. In fact, Senate v. Ermit reiterates jurisprudence citing The considerations justifying a presumptive privilege Presidential Presidential commu nications.” The Electoral Tribunals in Congress The House of Representatives Electoral Tribunal (HRET) has Election Contests Contests involving Party-List Representati Representatives ves

we r  \

It is for the HRET to interpret the meaning of this particular qualificllipn.of a nominee - the need for him or or her to be a bona fide  fide  member or a rdp%sentatit«eM rdp%sentatit«e M   his party-list organization - in the context of the the facts that characterize Abayon anckPalpa anckPalpa ran’s relation to  Aan gat Tayo and Tayo and Bantay, respectively, respectively, and the marginalized and underrepresented interests that they presumably embody. embody. Section 17, Article VI of the Constitution provides that the HRET shall be the sole  jud ge of all contests relating to, among am ong other things,-the th ings,-the quali ficatio ns o f the membe rs of o f the House of Representatives. Representatives. Since party-list nominees are “elected members” of the House of Representatives, Representatives, the HRET has jurisdiction to hear and pass upon their qualifications. By analogy with the cases o f district representatives, representatives, once the party or organization organization o f the partylist nominee has been proclaimed and the nominee has taken his oath and assumed office as member of the House of Representatives, the COMELEC's jurisdiction over election contests relating to his qualification ends and the HRET’s own jurisdiction begins. (Daryl Grace J. J. Abayon Abay on v. The Honorab le House o f Representativ Repre sentatives es Electoral Elector al Tribunal, et at., at., G.R. G.R. Nos. 189466 and 189506, 612 SCRA 375, 11 Februar y 2010, En Banc [Abad])

The Executive Department (Article VII, 1987 Constitution) The executive power shall be vested in the President of the Philippines. (Section 1, Article VII, 1987 Constitution) It has already been established that there is one repository of executive powers, and that thsreis thsreis i the President of the Republic. This means that when Section 1, Article VII VII of the nstitution speaks of executive power, it is granted to the President and no one else. Tlarily, it is only the President, as Chief Executive, who is authorized to exercise emergency powers as provided under Section 23, Article VI, of the Constitution, as well as what became known as the calling-out powers under Section 18, Article VII thereof. (Jamar  Kulay an v. Gov. Ab du sa ku r Tan, Tan, G.R. G.R. No. No. 187298, 187298, Ju ly 3, 3, 2012, 2012, En Banc [Seren o, CJJ), JJ),

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The duty to protect the State and its people must be carried out earnestly and effectively throughout the whole territory of the Philippines in accordance with constitutional provision on national territory. Hence, the President Presiden t of the Philippines, as the sole sole repository

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of executive power, is the guardian of the Philippine archipelago, including ail the islan and waters embraced therein and all other territories over which the Philippines and sovereignty or jurisdiction. X x x To carry out this important duty, the President is equipped with authority over the  Armed Forces o f the Philippines Philippin es (AFP), which is the protecto r of the people and the state, x x. In addition, addition, the Executive is constitutionally constitutionally empowered to maintain peace and or ' protect life, liberty, liberty, and property, and promote the general welfare. In recognition recogniti on of these powers, Congress has specified that the President must oversee, ensure, and reinforce our defensive capabilities against external and internal threats and, in the same vein, ensure that the country is adequately prepared for all national and local emergencies arising from natural and man-made disasters. disasters. To be sure, this this power is limited limited by the Constitution Constitution itself itselfT T ^

x xffiene A.V.

Saguisag, et at. v. Executive Secretary Paquito N. Ochoa, Jgfe^al., G.R. No. 212426, Jan. 12, 2016, En Banc [Sereno, CJJ) v\ i f  The The Faithfu l Exec ution Clause

This Court has interpreted the faithful execution clause as an obligation imposed on the President, and not a separa te grant of power. Section 17, Article Articl e VII VII of the Constitution, expresses this duty in no uncertain terms and includes it in the provision regarding the President’s power of control over the executive dep artment x x x. Xxx

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Hence, the duty to faithfully e: ute the laws of the land is inherent in executive power and is intimately intimately re lafe dto the othi othi executive functions. X x x These obl o bliga iga tjqns tjq ns%e %ee as broad as they sound, for a President cannot function with crippled hands, bat most b& capable of securing the rule of law within all territories of the Philippine Islands Islands attd-b d^np d^ np ow ere d to do so within constitutional constitutional limits. limits. Congress cannot, cannot, for instance,' tiH tiHsit or^ J^ e f over the President’s power to adopt implementing rules and regulations for a favwibbas enacted. 'fa$re irtjjrortant, this mandate is self-executory by virtue of its being inherently ecutiveM ecutiveMiJi iJiafur afure. e. X x x r 

e import of this characteristic is that the manner o f the President’s execution execution o f the the en if not expressly granted by the law, law, is justified by necessity and limited only by law, the President must “take necessary and proper steps to carry into execution the law."

In light of this constitutional duty, it is the President’s prerogative to do whatever is legal legal and necessary for Philippine defense interests. interests. It s no coincidence that the constitutional provision on the faithful execution clause was followed by that on the President’s commander-in-chief powers, which are specifically granted during extraordinary  Address: Uni t 2 ,4th Floor, Esparia Esparia Place Place Building, 1139 Adeli na Stre et corne r Espaiia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com  / www.facebook.com/villasislawcenter www.facebook.com/villasislawcenter / www.remediallawdoctrines. www.remediallawdoctrines.blogspot.com blogspot.com [email protected] / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

events of lawless violence, violence, invasion, invasion, or rebellion. And this duty of defending the the country unceasing, even in times when there is no state of lawless violence, invasion, or rebellion.  At such su ch times, the President Presiden t has full powers to ensure the fai thful execution of the laws. It would therefore be remiss for the President and and repugnant to the faithful-execution clause of the Constitution to do nothing when the call of the moment requires increasing the£T\ military’s defensive capabilities, which could include forging alliances with states that hotel common interest with the Philippines or bringing an international suit against an offef&ling' state. Xxx This approach of giving utmost deference to presidential initiatives in respect of foreign affairs is is not novel to the Court. Court. The President’s act of treating EDCA as an an executive agreement is not the principal power being analyzed x x x. x. Rather, the the preliminary analysis is in reference to the expansive powe r of foreign affairs. We have long treated treated this power as something the the Courts must not unduly restrict. restrict. X x x Xxx Understandably, Understandably, this Court m ust view the instant case with the same perspective and understanding, knowing full well the constitutional and legal repercussions of any judicial overreach. (Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., et al., G.R. No. 212426, Jan. 12, 2016, En Banc [Sereno, CJ]) The The Doctrine o f Qualified Qualified Po litical litical Agenc y Under this doctrine, which recognizes the establishment of a single executive, all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, Executive, and, except in cases where the Chief Executive is required by the Constitution or law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the Secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive presumably the acts of the Chief Executive. (Resident Marine Mammals o f the Protected Prote cted Seascape Tanon Strait, Strait, e t al. v. Secreta ry Angelo Reyes, et al., GR Nos. Nos. 18Q771 a^d 181527, April 21, 2015, En Banc [Leonardo-De Castro]) T te sident Marine Mammals of the Protected Seascape Tanon Strait, et al. v. Secretary  Aq§  A q§ e lo Reyes, Reyes , e ta l., l. , G.R. G.R. No. 180771, A p ri l 21, 2015, En Ba nc (Le on ard o-D e Cas tro) The constitutionality of the Service Contract Agreement for the large-scale exploration, development and utilization of oil and petroleum gasses in Tanon Strait entered into between a Japanese petroleum corporation and the Philippine Government was challenged in this case. case. The one who signed this Agreement on behalf of the Philippine Philippine government was the Secretary Secretary of Energy. Energy. Was the Agreement valid?

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The SC said “No.” It violated Section 2, 4 " par., par., Article XII XII of the Constitution Constitution (National Economy and Patrimony) which states that it is the the President who should enter into that kind of contract with foreign corporations. Public respondents, in trying to justify their action, however, invoked the doctrine of qualified political agency since the Secretary of Energy is an alter-ego of the President. The SC clarified that this doctrine doctrine of qualify political political age ncy may not be validly invoked if it is the Constitution itself that provides that J act should be performed by the President no less, especially since what are involv^&are' natural resources. The Ap pointing Power of the President Not All Officers Appointed by the President under Section 16, Article   W/ of ti Con stitution stitution Sh all Require Require Con firmation firmation by the Com mission on App ointme nts Conformably, as consistently interpreted and ruled in the leading case of Sarmiento III v. Mison,  Mison,  and in the subsequent cases of Bautista v. Salonga, Quintos-Deles v. Constitutional Commission,  Commission,  and Calderon v. Carale,  Carale,  under Section 16, Article VII, of the Constitution, there are four groups of officers of the government to be appointed by the President: First, the heads of the executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution; Second, all other officers of the Government whose appointments are not otherwise provided for by law; Third, those whom the President may be authorized by law to appoint; Fourth, Officers lower in rank whose appointments the Congress may by law vest in the President alone. It is well-settled that only presidential appointees belonging to the first group require the confirmation by the Commission on Appointments. (Manalo v. Sistoza, 312 SCRA 239,  Au g. 11,1 999 , E n B an c [P ur isi m a] ) Nature Nature o f an Ad Interi Interim m Appointment " An ad interim  interim  appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. office. The fact that it is subject to confirmation by the Commission on  Appointme  App ointme nts does not alter its permanen t character. The Constitution Constitu tion itself itsel f makes m akes an ad interim  interim   appointment permanent in character by making it effective until disapproved by the Commission on Appointments or until until the next adjournment of Congress. Congress. X x x Thus, the ad interim appointment interim  appointment remains effective until such until such disapproval or next adjournment, signifying that it can no longer be withdrawn or revoked by the President.

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Xxx More than half a century ago, this Court had already ruled that an ad interim appointment appoi ntment is permanent permane nt in character. In Summers v. Ozaeta,  Ozaeta,  decided on October 25, 1948, we held that: interim appointment is one made in pursuance of paragraph (4), Section “x x x an ad interim appointment 10, Article VII of the Constitution, which provides that the 'President shall have IN*, power to make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on  Appoin tments or until the next adjournme adjo urnme nt of the Congress.’ Congr ess.’ It is an appointment permane nt in nature, nature, and the circumstance th at it is subject to confirmation by the Commission on Appointments does not alter its permanent character. An ad interim appointment is disapproved certainly for a reason other than that its provisional period has expired. expired. Said appointment is of course distinguishable from an ‘acting’ appointment which is merely temporary, good until another permanent appointment is issued.” The Constitution imposes no condition on the effectivity of an ad interim interim appointment,  appointment, and thus an ad interim  interim  appointment takes takes effect immediately. immediately. The appointee can at once assume office and exercise, as a de jure offi jure  officer, cer, all the powers pertaining to the office. office. X x x Thus, the term “ad interim appointment”, interim  appointment”, as used in letters of appointment signed by the President, President, means a permanent appointment made by the President in the meantime that Congress is in recess. It does not mean a temporary appointment that can can be withdrawn or revoked revoked at any time. The term, although not found found in the text of the Constitution, has acquired a definite definite legal legal meaning under Philippine jurisprudence. The Court had again again occasion to explain the nature of an ad interim  interim   appointment in the more recent case of Marohomb sar v. v. Court of Appeals, Appeals, wh  wh ere the Court stated: “We have already mentioned that an ad interim appointment interim  appointment is not descriptive of the nature of the appointment, that is, it is not indicative of whether the appointment is temporary or in an acting capacity, rather it denotes the manner in which the appointment was made. made. In the instant case, case, the appointment extended to private private respondent by then MSU President Alonto, Jr. was issued without condition nor limitation limitation as to tenure. tenure. The permanent status of private respondent’s appointment as Executive Assistant II was recognized and attested to by the Civil Service Commission Regional Office No. 12. Petitioner’s submission that private respondent’s ad interim appointment is synonymous with a temporary appointment which which could be validly terminated at any time is is clearly untenable. untenable. Ad interim appointments are permanent appointment but their terms are only until the Board " troves them.” f interim  interim   appointee who has qualified and assumed office becomes at that o m ^ a government government employee employee and therefore therefore part part of the civil civil serv service. ice. He enjoys the **ifutional protection that “[n]o officer or employee in the civil service shall be removed or suqaended except for cause provided by law.” (Section 2[3], Article IX-B of the Constitution) Thus, an ad interim appointment interim  appointment becomes complete and irrevocable once the appointee has qualified into office. X x x Once an appointee appo intee has qualified, he acqu ires a legal right to the office which is protected not only by statute but also by the Constitution. He can only be removed for cause, after notice and hearing, consistent with the requirements of due process. (Matibag v. Benipayo, 380 SCRA 49, April 2, 2002, En Banc [Carpio]) Limitations on the App ointing Power of the the President

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Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. (Section 15, Article Vil, 1987 Constitution) In Re: Honorable Mateo Valenzuela and Placido Vallarta De Castro v. Judicial and Bar Council The Calling-out Power of the President as Commander-in-Chief of th While the President is still a civilian, Article II, Section 3 of the Constitution mandates that civilian authority is, at all times, supreme over the military, making the civilian president the nation’s natio n’s supreme military leader. The net effect of Article Artic le II, II, Section 3, when read with  Article VII, Section 18, 18, is that tha t a civilian President is the ceremonial, ceremonia l, legal and adminis trative head of the armed forces. The Constitution doe s not require that the President must be possessed of military training and talents, but as Commander-in-Chief, he has the power to direct military operations and to determine military strategy. Normally, he would be expected to delegate the actual command of the armed forces to military experts, but the ultimate power is his. (Jamar Kulayan v. Gov. Abdusakur Tan, G.R. No. 187298, July 3, 2012, En Banc [Sereno, CJ]) The The Calling out Pow er is is exclusive to the P resident In Jamar Kulayan v. Gov. Abdusakur Tan, G.R. No. 187298, July 3, 2012, En Banc (Sereno, CJ), the CJ), the Court held: held: Given the foregoing, Governor Tan is no t endowed with the power to call upon the armed forces at his own bidding. In issuing issuing the assailed proclamation, proclamation, Governor Tan Tan exceeded his authority when he declared a state of emergency and called upon the Armed Forces, the police, police, and his own own civilian civilian Emergency Force. Force. The calling-out powers powers contemplated under the Constitution Constitution is exclusive to the President. An exercise by another official, even if he is the local chief executive, is ultra vires, and vires, and may not be justified by the invocation of Section 465 o f the Local Government Code. President’s po we r to to c all ou t the armed forces forces as the ir Commande r-in-Chief r-in-Chief in to prevent or suppress lawless viole violence, nce, invasion or rebellion rebellion su bject to jud icial v/etijl’ or is it a political question? When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is clear from from the intent of the framers and from the text of the Constitution Constitution itself. The Court, thus, cannot be called upon to overrule overru le the President’s Pres ident’s wisdom wisdo m or substitute its own. However, However, this does not prevent an examination examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting constituting grave abuse of discretion. In view of the constitutional intent to give the  Address: Un it 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet corn er Espaiia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/vi www.facebook.com/villasislawcenter llasislawcenter / www.remediallawdoctrines.blogspot www.remediallawdoctrines.blogspot.com .com /  / [email protected] / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

President full discretionary power to determine the necessity of calling out the armed forces, it is incumbent upon the petitioner to show that the President’s decision is totally bereft of factual basis. The present petition fails fails to discharge dischar ge such heavy burden as there is no evidence to support the assertion that there exists no justification for calling out the armed forces. There is, likewise, no evidence evidenc e to support the proposition that grave abuse was committed because the power to call was exercised in such a manner as to violate thj constitutional constitution al provision on civilian suprema cy over the military. In the performance of Court’s duty of “purposeful hesitation” before declaring an act of another branch unconstitutional, only where such grave abuse of discretion is clearly shown shall the Court interfere with the Presid ent’s judgment. judgm ent. To doubt is to sustain. (Integrated Bar of the Philippines v. Hon. Ronaldo B. Zamora, G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan])

The Pardoning Power of the President Except in cases of impeachment, or as otherwise provided in $lfls Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment. He shall also have the power to grant amnesty with the concu rrence of all the Members of the Congress. Congress. (Section 19, 1987 Constitution) Was Was the Pardon granted to forme r President Estrada Estrada an Abs olute Pardon?

Former President Estrada was granted an absolute pardon that fully restored all his civil and political rights, which naturally natura lly includes the right to seek public office. The wording of the pardon extended to former President Estrada is complete, unambiguous, and unqualified. It is likewise unfettered by Articles Article s 36 and 41 of the Revised Penal Code. The only reasonable, reasonable, objective,
The 1987 Constitution specifically Section 19 of Article VII and Section 5 of Article IXC, provides that the President of the Philippines possesses the power to grant pardons, along with other acts of executive clemency. clemency. V It is apparent that the only instances in which the President President may not extend pardon regain tp.,be: (1) impeachment cases; (2) cases that have not yet resulted in a final tc o n v tc ti ^ and (3) cases involving involving violations of election laws, laws, rules rules and and regulations regulations in which t^ r e was no favorable recommendation coming coming from the the COMELEC. COMELEC. Therefore, it can be be ar^fed that any act of Congress by way of statute cannot operate to delimit the pardoning power of the President. It is unmistakably the long-standing position of this Court that the exercise of the pardoning power is discretionary in the President and may not be interfered with by Congress or the Court, except only when it exceeds the limits provided for by the Constitution.  Address: Un it 2 ,4th Floor, Esparia Esparia Place Place Building, 1139 Adelina Stree t corne r Espana Espana Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com  / www.facebook.com/villasislawcent www.facebook.com/villasislawcenter er / www.remediallawdoctrines. www.remediallawdoctrines.blogspot.com blogspot.com [email protected] / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

This doctrine of non-diminution non-diminution or non-impairment of the President’s power of pardo by acts of Congress, specifically through legislation, was strongly adhered to by an overwhelming majority of the framers of the 1987 Constitution when they finally rejected a proposal to carve out an exception from the pardoning power of the President in the form of “offenses involving graft and corruption” that would be enumerated and defined by Congress through the enactment of a law. (Atty. Alicia Risos-Vidal v. COMELEC, G.R. No. 20666$ Jan uary 21, 201 2015, 5, En Banc [Leonardo -De Castro]) Castro]) The foregoing pronouncements solidify the thesis that Articles 36 and 41\Of>ihe Revised Penal Code cannot, in any way, serve to abridge or diminish the exclusive'pqtodr and prerogative of the President to pardon persons convicted o f violating violating penal laws. Xxx  A rigid and inflexible reading of the above provisions provisio ns o f law is unwarranted, unwarra nted, especially so if it will defeat or unduly restrict the power of the President to grant executive clemency. It is well-entrenched in this jurisdiction that where the words of a statute are clear, plain, and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation. Verba legis non est recedendum. From the words of a statute statute there should be no departure (Republic v. Camacho, G.R. No. 185604, June 13, 2013, 698 SCRA 380, 398). It is this Court’s firm view that the phrase in the presidential pardon at issue which declares that former President Estrada “is hereby restored to his civil and political political rights” substantially complies with the requiremen t of express restoration. Xxx For this reason, reason, Articles 36 and 41 of the Revised Penal Code should be construed in a way that will give full effect to the execu tive clemency granted by the the President, President, instead of indulging in an overly strict interpretation that may serve to impair or diminish the import of the pardon which emanated from the Office of the President and duly signed by the Chief Executive himself/herself. himself/herself. The said codal provisions must be be construed to harmonize the power of Congress to define crimes and prescribe penalties for such crimes and the power of the President to grant executive clemency. clemency. All that said provisions impart impart is that the pardon of the principal penalty does not carry with with it the remission of the accessory penalties unless the President expressly includes said said accessory penalties in the pardon. It still still recognizes the Presidential prerogative to grant executive clemency and, specifically, to cide to pardon the principal penalty while excluding its accessory penalties or to pardon Th|fe^Artic les 36 and 41 only clarify the effect of the pardon so decided upon by the ;t on the penalties imposed in accordance with law.  A close clo se scrutin sc rutiny y of the te xt of o f the pardon to former for mer President Presiden t Estrada Estra da shows sh ows that th at both the principal penalty of reclusion perpetua  perpetua  and its accessory penalties are included in the pardon. pardon. The first sentence refers refers to the the executive clemency extended to former President Estrada who was convicted by the Sandiganbayan of plunder and imposed a penalty of reclusion perpetua. perpetua. The latter is the principal penalty pardoned which relieved him of imprisonment. The sentence that followed, followed, which states that “(h)e “(h)e is hereby restored to his civil and political rights,” expressly remitted the accessory penalties that attached to the

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principal penal ty of reclusion perpetua. Hence, even even if we apply Articles 36 and 41 of th Revised Penal Code, it is indubitable from the text of the pardon that the accessory penalties of civil interdiction and perpetual absolute disqualification were expressly remitted together with the principal penalty of reclusion perpetua. In this jurisdiction, the right to seek public elective office is recognized by law as falling under the whole gamut of civil and political rights. Xxx No less than the International Covenant on Civil and Political Rights,^ Philippines is a signatory, signatory, acknowledges the existence of said rights. rights. X x x Recently, in Sobejana-Condon v. Commission on Elections (G.R\No. 1^6742,  Aug ust 10, 10, 2012, 678 SCRA 267, 292), the 292), the Cou Court rt uneq unequi uivoc vocal ally ly re fe rf ^ ^ ^ h M ifl h t to seek seek public elective office as a political right x x x. Thus, Thus, from from both both law and jurisprudenc jurisprudence, e, the right right ta ^e l^ C u b lic le le c tiv e office office is is unequivocally considered as a political political right. right. Hence, Hence, fth e C our% ^(ter ates its earlier statement that the pardon granted to former President Estraaa ad mfe no other interpretation interpretation other than to mean that, upon acceptance of the pardon grantec^'to him, he regained his FULL civil civil and political political rights - including the right to to seek elective office. (Atty. Alicia Risos-Vidal v. COMELEC, G.R. No. 206666, January 21, 2015, En Banc [Leonardo-De Castro]) Contrary to Risos-Vidal’s declaration, the third preambular clause of the pardon, i.e., i.e., “[wjhereas, Joseph Ejercito Estrada has publicly committed to no longer seek any elective position position o r office,” neither makes the pardon conditional, nor militates aga inst the conclusion that former President Estrada’s rights to suffrage and to seek public elective office have been restored. restored. This is especially true as the pardon itself does not explicitly impose a condition or limitation, considering the unqualified use o f the term “civil and political rights” as being restored. Jurisprudence educates that a preamble is not an essential part of an act as it is an introduction or preparatory clause that explains the reasons for the enactment, usually introduced by the word “whereas.” (People v. Balasa, 356 Phil. 362, 396 [1998])  [1998])   Whereas clauses do not form part of a statute because, strictly speaking, they are not part of the operative language of the statute (Llamado v. Co urt of Appeals, 256 Phil. 328, 33 9 [1989]). JUfi this case, the w herea s clause claus e at issue is not an i ntegral part of the d ecree o f the pardon, a » therefor therefore, e, does not by itself alone alone operate to make the pardon pardon conditiona conditionall or to make its " s c ty h r contingent upon upon the fulfillment fulfillment of the aforemention aforementioned ed commitment nor to limit the the >pe%f the pardon. (Atty. Alicia Risos-Vidal v. COMELEC, G.R. No. 206666, January 2015, En Banc [Leonardo-De Castro]) The Diplomatic and Treaty-Making Power of the President No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate. (Section 21,  Article VII, 1987 Constitution)

* 

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 After  Afte r the expiration in 1991 1991 of the Agreemen Agre ementt between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for tha purpose, and recognized as a treaty by the other contracting State. (Section  Article XVIII, 1987 Constitution) The The Power and D uty to Conduct Foreign Relations Relations e caujuct of The President also carries the mandate of being the sole orga in rotations foreign relations. Since every state state has the capacity to interact with with with other sovereig sovereign n states, states, it is but but logic logical al that every every state state m u sT T S sH f^ gent the authority authori ty to represent its interests to those other sovereign states, states, ' Xxx The role o f the President in foreign affairs is Aia lified l by the Constitution in that the Chief Executive must give paramount importance~t\the sovereignty of the nation, the integrity of its territory, its interest, and the right sovereig n Filipino people to selfdetermination. X x x(Rene A.V. Saguisa
dential Functions Functions and the Role Role o f the the

Clearly, the power to defend the State and to act as its representative in the international sphere inheres in the person o f the President. This power, however, does not crystallize into absolute discretion to craft whatever instrument the Chief Executive so desires. As previously mentioned, mentioned, the Senate has a role in ensuring that treaties or international agreements the P resident enters into, into, as contemplated in Section 21 of Article VII of the Constitution, obtain the approval of two-thirds of its members. Xx x The responsibility of the President when it comes to treaties and international merits under the present Constitution Constitution is therefore therefore shared with the Senate. X x x (Rene V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., et al., G.R. No. i, Jan. 12, 12, 2016, 2016, En Ban c [Sereno, CJ]) Who has the Pow er to to R atify a Treaty? Treaty? In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the legislature. legislature. The role of the Senate is limited only to giving or withholding withholding its consent, or concurrence, to the ratification. (BAYAN [Bagong Alyansang Makabayan] v. Ex ecu tive Se creta ry Ron aldo Zamora, G.R. G.R. No. No. 138570, 138570, Oct. 10, 10, 2000, 2000, En Ban c [Buena ])  Address: U nit 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet co rne r Espaiia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.villasislawcenter.com  / www.facebook.c om/villasislawcenter / www.remediallawdoctrines.blogspot.com / www.remediallawdoctrines.blogspot.com  / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

With respect to the Visiting Forces Agreement (VFA) entered into between the Ph ilippines a nd the USA USA in 1998 1998,, Section 25, Ar ticle XVIII o f the Co nstitutio n applies, it being a special provision Section 21, Article VII deals with treaties or international agreements in general, in which case, the concurrence of at least two-thirds (2/3) of all the Members of the Senate is required required to make the subject treaty, treaty, or international agreement, valid and binding on the part of the Philippines. Philippines. This provision lays down the the general rule on treaties or international international agreements and applies to any form of treaty with a wide variety of subject matter, such as, but not limited to, extradition or tax treaties or those eco nomic in nature. AH treaties treati es or international agreements entered into by the Philippines, regardless of subject matter, coverage, or particular designation or appellation, requires the concurrent® of  the  the Senate to be valid and effective. In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve the presence of foreign military bases, troops or facilities in the Philippines. Under this provision, the concurrence of the Senate is only one of the requisites to render compliance with the constitutional requirements and to consider the agreement binding on the Philippines. Section 25, 25, Article XVIII XVIII further requires that “foreign military bases, bases, troops, or facilities” may be allowed in the Philippines only by virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a national referendum held for that purpose if so required by Congress, Congress, a nd recognized as such by the other contracting State. State. Xxx On the whole, the VFA is an a w ee m W f which defines the treatment of United United States troops and personnel personnel visiting^fep visiting^fep Ph ili p p a s . It provides for the guidelines to govern govern such such visits of military personne^^M^urtherdefines the rights of the United States and the Philippine Philippine govem menw Athe ma ttero f criminal criminal jurisdicti jurisdiction, on, movement of vessels and aircraf aircraft, t, importati importation on and and e x s A ^ ti o w f etyf etyffpmen fpment, t, mater materials ials and supplie supplies. s. ct®n 25, Article XVIII, which specifically deals with treaties involving RjSps, RjSps, or facilities, facilities, should apply in the instant case. To a certain certain sense, however, the provisions of Section 21, Article VII will find to the issue and for the sole purpose of determining the number of the valid concurrence o f the Senate x x x. x. ItJ? a finely-imbedded principle in statutory construction that a special provision or iw pplvaiis over a general one. Lex specialis specialis derogat general generali. i. (BAYAN [Ba go ng  A m h s a n g Ma ka ba ya n] v. Ex ec utiv ut ive e Se cret cr etar ar y Ro na ldo ld o Zam ora, ora , G.R. G.R. No. 138570 a nd Com pan ion Cases, O c t 10, 10, 2000, 2000, 342 SCRA 449, 449, 481-492, 481-492, En Ba nc [Buena ]) Despite the President’s roles as defender of the State and sole authority in foreign relations, the 1987 Constitution expressly limits his ability in instances when it involves the entry of foreign military bases, troops or facilities. facilities. The initial limitation is found in Section 21 21

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of the provisions on the Executive Department x x x. x. The specific limitation limitation is given b Section 25 o f the Transitory Provisions x x x. It is quite plain that the Transitory Provisions of the 1987 Constitution Constitution intended to add to the basic requirements of a treaty treaty under Section 21 of Article VII. VII. This means that both provisions must be read as additional limitations to the President’s overarching executiv functions in matters of defense and foreign relations. (Rene A.V. Saguisag, et ai. Executive Secretary Paquito N. Ochoa, Jr., G.R. No. 212426, January 12, 20J Ban c [Sereno, CJ]) CJ]) The The Power o f the President to E nter into into Executive Agreements The power of the President to enter into binding  binding  executive regents jffithout Senate concurrence is already well-established in this jurisdiction  __has been  _ . alluded to in our present and past Constitutions, in various ]]H^ipreme H^ipreme Court decisions, decisio ns, and during the de libera tions of the Constitution al C<  As the sole organ of our foreign foreig n relations, and the constitution constit utionally ally assigned assigne d chief chie f architect of our foreign policy, the President is vested with the exclusive power to conduct and manage the country’s interface with other states and governments. governments. Being the principal principal representative of the Philippines, the Chief Executive speaks and listens for the nation; initiates, maintains, and develops diplomatic relations with other states and governments; negotiates and enters into international agreements; promotes trade, investments, tourism and other econo mic relations; relations; and settles international disputes with oth er states. states.  As previously previou sly discussed, discussed , this constitutional constitu tional mandate emana tes from the inherent inheren t power of the President to enter into agreements with o ther stats, including the prerogative to conclude binding executive do not require further further Senate concurrence. The binding executive agreements that do existence of this presidential power is so well-entrenched that Section 5(2)(a), Article VIII of the Constitution, Constitution, even provides for a check on its exercise. exercise. X x x In Commissioner of Customs v. Eastern Sea Trading (113 Trading  (113 Phil. 333 [1961]) executive agreements are defined as “international agreements embodying adjustments of detail carrying out well-established national polices and traditions and those involving arrangements arrang ements of a more or less temporary tempo rary nature.” In Bayan Muna v. Romulo, this Court further clarified that executive agreements can cover a wide array of subjects that have »rious scopes and purposes. They are no longer limited to the traditional tradition al subjec ts that are ' covered by executive agreements as identified in Eastern Sea Trading. X x x One of the distinguishing features of executive agreements is that their validity and are not affected affected by a lack of Senate Senate concurrence. concurrence. This distinctive feature feature was recognized as early as in Eastern Sea Trading (1961) Trading (1961) x x x (Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., G.R. No. 212426, January 12, 2016, En Banc [Sereno, CJ]) Discuss the Binding Effect of Treaties Treaties and Executive Agreements in International Law. Law.  Address: U nit 2 ,4th Floor, Espaffa Espaffa Place Place Building, 1139 Adelina S treet c orn er Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.villasislawcenter.com  / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com villasislawcenterOemaiLcom / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

In international law, there is no difference between treaties and executiv agreements in their binding effect upon states concerned, as long as the functionaries have remained within within their powers. powers. International International law continues to make no distinction between between treaties and executive agreements: they are equally binding obligations upon nations. (BAYAN [Bag ong Alya nsa ng Makaba yan] v. v. Execu tive Secretary Ronaldo Zamora, G.R G.R. No. 138570, Oct. 10, 2000, En Banc [Buena]) The The Enhan ced Defense Coope ration Agree me nt (EDC (EDCA) A) The fear that EDCA is a reincarnation of the U.S. bases so zealously noted personalities in Philippine history arises not so much from xenopb genuine desire fo r self-determination, self-determination, nationalism, nationalism, an d above all a commiti commiti independence of the Philippine Republic from any foreign domination Mere fears, however, cannot curtail the exercise by the the Philippines of his Constitutional Constitutional prerogatives in respect o f foreign foreign affairs, affairs, oW«p ple him when he deems deems that addition additional al security security measures are are made necessary b^^ te j iffies. iffies. X x x In the future, the Philippines must navigate a world in which araed foraeCTight with increasing sophisti sophisticatio cation n in both both strategy strategy and technolog technology, y, white white e m p ^ ic ^ r s y mmetric mmetric warfare warfare and and remote weapons.  Additionally,  Additiona lly, our country countr y is fightin fi ghting g a most-te mo st-terrifyin rrifyin g enemy: the backlash of Mother Natu Nature re.. X x x In order to keep the peace in its archipelago archipelago in this region of the world, and to sustain sustain itself at the same time against the destructive forces of nature, the Philippines will need friends. Who they are, and what form the friendships will take, are for the the President to decide. The only restriction restriction is what the Constitution Constitution itself prohibits. prohibits. It appears that this this overarching concern for balancing constitutional requirements against the dictates of necessity was what led to EDCA.  As it is, EDCA is not constitution consti tutionally ally infirm. As an executive execu tive agreement, it remains consistent with existing laws and treaties that it purports to implement. (Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., G.R. No. 212426, January 12, 2016, En Banc [Sereno, CJ]) wers re liv e to Appropr Appropriat iation ion measu measure res s The President shall submit to the Congress within thirty days from the opening of every regular session, as the basis of the general appropriations bill, a budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures. (Sec. 22, Art. VII, 1987 Constitution) The Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget. The form, content, and manner of preparation of the budget shall be prescribed by law. (Sec. 25[1], Art. VI, 1987 Constitution)  Address: U nit 2 , 4th Floor, Espaffa Espaffa Place Place Building, 1139 Adelina St reet co rner Espana Espana Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.villasislawcenter.com  / www.facebook. com/villasislawcenter / www.rernediallaw www.rernediallawdoctri doctrines.bl nes.blogSDQ ogSDQt.com t.com villasislawcenterOemail.com / mvplawoffice mvplawoffice(5)gma (5)gmail.com il.com Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

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

The Judicial Department (Article VIII, 1987 Constitution) The judicial power shall be vested in one Supreme Cq| courts as may be established by law. Judicial power includes the duty of the coui controversies involving rights which are legally dei determine whether or not there has been a grave Hpuse lack or excess of jurisdiction on the part tjttany Government. (Section 1, Article VIII, 198Z Constitution,

icNn suefiriower 

V settle actual ‘ nforceabl nforceable, e, and to ration amounting to instrumentality of the

Thus Thus,, the Const Constit ituti ution on vest vestss judicial judicial |5 o ^ y \t h ^ « o u r t and in such such lower lower courts courts as may be be established by law. law. In creating ekb wer we r cora^ co ra^ Congress Congress concomitantly conco mitantly determines the jurisdi jurisdicti ction on of that court, court, and and that c o u iV w ^ ^ s creati creation, on, beco become mess by by opera operati tion on of the Constitution Constitution one of the repositoaes o f jua cia l*pow l*p ow er. er . However, However, only the Court is a constitutional constitutionally ly created created court, t h e ^ j£ be i^'e re a te d by Cong Congre ress ss in its exerci exercise se of the the legislative power. The ConstitutioQ^taWWnSMudicial ConstitutioQ^taWWnSMudicial power include includess the duty o f the courts of justice justice not only "to sett settle leii ad u ^j p n tu m e ra e s involvi involving ng rights which which are legall legallyy demanda demandable ble and and enforceable" but £ lso ls o *" to ofeterm ofetermine ine whether wheth er or not n ot there has been been a grave abuse abuse of discr discreti etion on a m o u n tm ^ ^ ^ C R or exce excess ss of juris jurisdict diction ion on the part of any any bran branch ch or ins tru m en ta liqN ^h e^ flre rnment." It has has thereby thereby expan expande ded d the conce concept pt of judicial judicial powe power, r, which up to confined to its traditional ambit amb it of settling actual controversies controversies invoMfig invoM fig right$.o iat were legally legally demandable and and enforceable. enforceable. and rationale of the expansion of judicial power under the 1987 itutittn* itutittn* were laid laid o ut during d uring th e deliberations of th e 1986 Constitutional Constitutional Commissio Commission n by loner Roberto R. Concepcion (a former Chief Justice of the Philippines) in his rship of o f the proposed proposed provisions provisions on the Judiciary. Judiciary. Our previous Constitutions equally recognized the extent of the power of judicial review and the great responsibility of the Judiciary in maintaining the allocation of powers among the three great branches of the Government. (Maria Carolina P. Araullo, et al. v. Benigno Simeon C. Aquino III, et al. G.R. No., 209287, July 1, 2014, En Banc [Bersamin]) Address: U nit 2 , 4th Floor, Espafia Espafia Place Place Building, 1139 Adelina Adelin a Street corner cor ner Espafia Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.villasislawcenter.com  / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / www.remediallawdoctrines.blogspot.com / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

Judicial Power and the Political Question Doctrine Doctrine The Political Question Question Doc trine

Baker v. Carr   remains the starting point for analysis under the political question doctrine. In Tanada v. Cuenco, we Cuenco, we held that political questions refer “to those questions under the Constitution, are to be decided by the people in their sovereign capacj regard regard to which full discretionary authority has been delegated to the legislative qj qj branch of the government. It is concerned concerned with issues dependent upon th legality of a particular measure.” (Vinuya, et al. v. The Ho nora ble Exe< Exe
G.R. No.

grave abuse of E. Marcos at the

Held: In sum, there is no clear cCta^itutiona^r legal basis to hold that there was a grave abuse of discretion amountina^^^Js; or excess of jurisdiction which would  justify  jus tify the Court to interpose its a u tl w ity it y t o   check and override an act entrusted to the judgm ent of another branch. Truly, the President’s discretion is not totally unfettered. unfettered. X x x. At bar, President Duterte Duterte x x x acted within the bounds of the law and jurisprudence, Notwithstanding the call of human rights advocate, the Court must uphold what is legal and and just. And that is not to deny Marcos of his rightful rightful place at the LNMB. LNMB. For even the Framers of our Constitution intend that full respect for human rights is available at any stage of a person’s development, from the time he or she become s a person to the time he or she leaves this earth. There are certain things that are better left left for history - not this Court - to adjudge. The Court could could only do so so much in accordance with clearly established rules and principles. principles. Beyond that, that, it is ultimately ultimately for the people themselves, themselves, as the sovereign, to decide, a task that may require the better perspective that the passage offk ne provid provides. es. a, et. al. v. The Honorable Executive Secretary Alberto G. Romulo, et. al., G.R. No. 182230 182230,, A p ril 28. 2010, 2010, En Ban c (Del C astillo) The SC may not compel the President to take up the cause of the petitioners (comfort women during World War II) II) against Japan. That will violate violate the doctrine doctrine of separation of powers for that is a political political question - a question in regard to which which full discretionary authority has been delegated by the Constitution to the President as the chief architect of our foreign policy and as the spokesman of the nation in matters of foreign  Address: Un it 2 ,4th Floor, Espaff Espaffa a Place Place Building, 1139 Adelin a Stree t corne r Espana Espana Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.viHasislawcenter.com / www.viHasislawcenter.com  / www.facebook.com/vil www.facebook.com/villasislawcent lasislawcenter er / www.remediallawdoctrines. www.remediallawdoctrines.blogspot.com blogspot.com [email protected] / [email protected]  / mvplawoffice(5)gmail.com mvplawoffice(5)gmail.com Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

relations. The most that the SC may do is to exhort her, to urge her to take up petitioner  cause - but not to to compel her. In matters matters o f foreign foreign policy, policy, the Executive and the Judiciary must speak with ju st one voice to avoid serious embarrassments and strained relations with foreign countries. Elaborating, the Court held: “To be sure, not all cases implicating foreign relations present questions, and courts certainly possess the authority to construe or invalids and executive agreements. agreements. However, However, the question whether the ^fch i government should espouse claims of its nationals against a foreign a^ fe a m en t foreign foreign rela relatio tions ns mat matte ter, r, the auth authori ority ty for which which is d e m o n s tra b ly ^m m itt^ ^v our Constitution Constitution not to the courts but to the political political branches. branches. In th i^ a s e ^ th e E^routiv e Depart Departmen mentt has has alread already y deci decided ded that that it is to the the best best in te r e s tp n ^ ^ ^ ^ ft f to waive waive all all claims of its nation nationals als for reparatio reparations ns against Japan Japan in ttr e T re a t^ f Peace of 1951. 1951. The wisdom of such decision is not for the courts to cjuggti “In the seminal case of US v. Curtiss-Wright ExportCdfjb., the US Supreme Court held that ‘[t]he President is the sole organ of the natigjr in its external relations, and its sole representative with foreign relations.’ “It is quite apparent that if, in the maintenance of our international relations, embarrassment - perhaps serious embarrassment - is to be avoided avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible admiss ible where whe re domestic domes tic affairs alone involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in times of war. He has his confidential sources of information. information. He has his agents in the form of diplomatic, diplomatic, consular and other officials.

xecutive Department has determined that taking up petitioners’ cause Inimical to our country’s foreign policy interests, and could disrupt our Japan, thereby creating serious implications for stability in this region. F ^ l i s to overtur overturn n the Executi Executive ve Department Department’s ’s determinati determination on would would mean an sessment of the foreign policy judgments by a coordinate political branch to which authority to make that judgmen t has been constitutionally committed. committed. Requisites for a Proper Exercise Exercise by the Court of its Power o f Judicial Review Review The prevailing rule in constitutional litigation is that no question involving the constitutionality or validity of a law or governmental act may be heard and decided by the Court unless there is compliance with the legal requisites for judicial inquiry, namely: (a) there must be an actual case or controversy calling for the exercise of judicial power; (b)  Address: Un it 2 ,4th Floor, Espart Esparto o Place Place Building, 1139 Adelin a Stree t corne r Espana Espana Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/vi www.facebook.com/villasislawcenter llasislawcenter / www.remediallawdoctrines.blogspot www.remediallawdoctrines.blogspot.com .com /  / [email protected] / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

the person challenging the act must have the standing to question the validity of the subjec act or issuance; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must be the very Us mota of mota  of the case. case. Of these requisites, case law states that the first two are the most important. important. (Belgica, et al. v. Exec. Sec. Paquito N. Ochoa, et al., G.R. No. 208566, 710 SCRA 1, 89, Nov. 19, 2013, En Banc [Perlas-Bernabe]) It is well-settled that no question involving the constitutionality or validity of a governmental act may be heard and decided by the Court unless the following req  judic ial inquiry are present: (a) there must mus t be an actual case of controversy controv ersy exercise of judicial power; (b) the person challenging the act must have tj question the validity of the subject or issuance; (c) the question of constiti raised at the earliest opportunity; and (d) the issue of constitutionality musl lis mota  mota  of the case. case. In this case, the absence of the first two, two, which essential, renders the discussion of the last two superfluous. (Saturnino et al. v. Rear   A d m ira ir a l Er ne sto st o C. En riq ue z, et al., G.R. No. 225973, Nt 6, En Banc [Peralta]) The The Meaning Meaning o f an “A ctua l Case Case or Controve rsy! rsy!  An “actual case or controversy” controv ersy” is one wf1 h(^ rtvo lve s a conflict confli ct of legal rights, an assertion of opposite legal claims, susceptiby^yuaiOT^psolution as distinguished from a hypothetical hypothetical or abstract difference difference or dispute. T n a w a iu st be contrariety of legal legal rights that can can be interpr interpreted eted and enforced enforced on the the b a l^ fc e x is tin g law or jurisprudence. jurisprudence. Related Related to the requi requisit site e of an act actua uall case or contr controve oversy rsy l^ n ^ fq u is it e of “ripe “ripenes ness,” s,” which which means means that that something had been accomplishe^wr performed by either branch before a court may come into the picture, and the petitioner m tm al leg eth e existence of an immediate or threatened threatened injury to itself as a result ofrfTOchalleng ofrfTOchalleng ed action. Moreover, the the limitation on the power of  judic ial review to a c t u a U c a q ^ ^ li controversie contro versies s carries the assurance assura nce that tha t the courts will not intrude intrude into ar ea s^ wn mi tted tp the other branches of the government. government. Those areas pertain to questiooS^Naich\inder the Constitution, are to be decided by the people in their sovereign capacitf^^Tregaifd to which full discretionary authority has been delegated to the leg islativ^o rexe cutive branch of the government government.. As they are concerned concerned with with questions questions of policy policy a n d ^ ^ q s dependent upon the wisdom, wisdom, not not legality legality of a parti particular cular measure measure,, political political questiosp used to be beyond the ambit of judicial review. review. However, However, the scope of the pol iticS ^ue stiQ n. doctrine doctrine has been limited by Section 1 of Article VIII of the 1987 Gonsti Gonstitut tutrSh rSh when when it vested in the judicia ry the power to determine whe ther or not there has grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any » ^m ^b ran ch o r instrumen instrumentalit tality y of the Government. Government. (Saturnino C. Ocampo, et al. v. Rear  ’miral Ernesto C. Enriquez, et al., G.R. No. 225973, November 8, 2016, En Banc [Ppfelta])  An actual case or controversy contro versy means an existing case or controversy contro versy that is appropriate or ripe for determination, not conjectural or anticipatory, lest the decision of the court would amount to an advisory opinion. (Republic Telecommunications Holding, Inc. v. Santiago, 556 Phil. 83, 91-92 [2001]) The rule is that that courts do not sit to adjudicate mere academic questions to satisfy scholarly interest, interest, however intellectually challenging. The  Address: Un it 2 ,4th Floor, Esparia Esparia Place Place Building, 1139 Adeli na Stre et corne r Espafia Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com  / www.facebook.com/vi www.facebook.com/villasislawcenter llasislawcenter / www.remediallawdoctri www.remediallawdoctrines.blogspot.com nes.blogspot.com [email protected]   / mvplawoffice(5>email.com [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

controversy must be justiciable - definite and concrete, concrete, touching on the legal relations o parties having adverse legal interests. interests. In other words, the pleadings must show an active antagonistic assertion of a legal right, on the one hand, and a denial thereof, on the other; that is, it must concern a real, tangible tangibl e and not merely a theoretical theoretica l question o r issue. There ought to be an actual and substantial controversy admitting of specific relief through a decree conclusive in nature, as distinguished from an opinion advising what the law woul be upon a hypothetical state of facts. (Information Technology Foundation o f the the Philippi v. Commission on Elections, 499 Phil. 281, 304-305 [2005]) Corollary to the requirement of an actual case or controversy is the requirement of ripeness (Lawyers against Monopoly and Poverty [LAMP] v. The Secretary o f Budge t and Management, GR No. 164987, April 24, 2012, 670 SCRA 373, 383). A question is ripe ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. For a case to be considered considered ripe for adjudication, it is a prerequisite that something has then been accomplished or performed by either branch before branch before a court may come into the picture, and the petitioner must allege the existence of an immediate or threatened injury to himself as a result of the challenged action. He mus t show that he has sustained or is immediately in danger of sustaining some direct injury as a result of the act complained of (The Province Province o f North North Cotabato v. v. The Government of the the Republic o f the Philippines, Philippines, 589 589 Phil. Phil. 387, 387, 481 481 [2008]). (Jam es M. Imb on g, e t al. v. Hon. Pa qu ito N. N. Ochoa, J r., e t al., GR No. No. 204819, A p ri l 8, 8, 2014, 2014, The The Moot an d Academ ic Principle  An action is considered conside red “moo t” when it no longer long er presents presen ts a justicia ju sticia ble controversy controv ersy because the issued involved have become academic or dead, or when the matter in dispute has already been resolved and hence, one is not entitled to judicial intervention unless the issue is likely to be raised again between the parties (Santiago v. C ourt of Appeals, 348 Phil. 792, 792, 800 [1998]). Time and again, courts have refrained refrained from even expressing an opinion opinion in a case where the issues have become moot and academic, there being no more justiciable controversy to speak of, so that a determination thereof would be o f no practical practical use o r value (Barbieto v. Co urt o f Appeals, GR No. No. 184646, 184646, October Octo ber 30, 30, 2009, 604 SCRA 825, 840). (International (International Service Service fo r the Ac qu isition o f Agri-biotech Applications, Inc. Inc. v. Greenpeace Southe ast As ia (Philippines), e tal., GR No. No. 209271, 209271, Decemb er 8, 8, 2015, 2015, En Banc [Villarama]) [Villarama]) Exceptions to the M oot and Academic Principle Even on the assumption of mootness, jurisprudence dictates that “the ‘moot and academic’ principle is not a magical formula that can automatically dissuade the Court in resolving a case.” case.” The Court will decide cases, otherwise otherwise moot, if first,  first,  there is a grave violation of the Constitution; second,  second,  the exceptional character of the situation and the paramount public interest is involved; third,  third,   when the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading review. (Belgica, et al. v. Exec. Sec. Paquito N. Ochoa, et al., G.R. No. 208566, 710 SCRA 1, 93, Nov. 19, 2013, En Banc [PeriasBernabe]) Locus Standi  Address: Un it 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet corn er Espafia Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.facebook.com/vi www.facebook.com/villasislawcenter llasislawcenter / www.remediallawdoctri www.remediallawdoctrines.blogspot.com nes.blogspot.com [email protected]   / mvplawoffice(5>email.com [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

Defined as a right of appearance in a court of justice on a given question, locus standi requires that a party alleges such personal stake in the outcome o f the the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult difficult constitutional constitutional questions. Unless a person has sustained or is in imminent dan ger of sustaining an injury as a result of an act complained op~:~ C. Ocampo, et al. v. Rear Ad m iral EmestoJQ. ) such party has no standing. (Saturnino C. \\ Enriquez, et al., al., G.R. G.R. No. 225973, 225973, No vem ber 8, 8, 2016, 2016, En Ban c [Peralta])  /

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Locus standi is “a right of appearance in a court of justice on a given question (Sayan }> Muna v. Romulo, G.R. No. No. 159618, Febru ary 1, 1, 2011, 641 SCRA 244, 254, citing Dav id if : Macapagal-Arroyo, 522 Phil. 705, 755 [2006]). Specifically, Specifical ly, it is “a party’s personal persona l and and

substantial interest in a case where he has sustained or will sustain direct injury as a result” of the act being challenged, and “calls for more than just a generalized grievance." (Id., citing Jumamil Juma mil v. v. Cafe, 507 Phil. Phil. 455, 46 5 [2005], citing Integ rated Bar of the Philippines v. Zamora, the rule on standing is a procedural matter which 392 Phil. 618, 632-633 [2000]) However, the

this Court has relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers and legislators when the public interest so requires, such as when the subject matter of the controversy is of transcendental importance, of overreaching significance to society, or of paramount public interest. (Biraogo v. Philippine Truth Commission of 2010, G.R. Nos. 192935 & 193036, December Decem ber 7, 7, 2010, 63 7 SCRA 78, 78, 151 citing Social Justice Justic e Society Socie ty [SJS ] v. Dangerous Da ngerous Drugs Dru gs Board, et al., al., 591 Phil. 393404 [2008 ]; Tatad Ta tad v. v. Se cretary of the Department Departm ent of Energy, Energy, 346 3 46 Phil. Phil. 321 [19 97] 97 ] and De Guia v. v. COMELEC, G.R. G.R. No. 104712, May Ma y 6, 6, 1992, 1992, 20 8 SCRA 420, 422.)

In the landmark case of v. Facfoan, Jr., G.R. No. 101083, July 30, 1993, 224 SCRA 792, we recognized the “publi^taht’JWcitizens to “a balanced and healthful ecology which, which, for the first time i l ^ u r consrpffional history history,, is solemnly incorporat incorporated ed in the the fundamental fundamental law.” law.” We d e d |g 0 0 B te the right to a balanced balanced and health healthful ful ecology ecology need need not be written in the Constffl^ton Constffl^ton f q r i t i l assumed, assumed, like other civil civil and political political rights rights guaranteed guaranteed in the the Bill of Riaf RiafTO TO^^ to \f c is m ro m the inception of mankind mankind and it is an issue of transc transcende endenta ntall im R gg ^^ v^ ni nte rg en er a tio na l implic implicat ation ions. s. Such Such right right carrie carries s with with it the correlati correlative ve d rt u to refrainlfrom impairing impairing the environme environment. nt. (Id. At 804-805) (Most Rev. Pedro Pedro D. A ri g ra q ^ u Tv . Scott Scott H. Sw ift, et al., G.R. G.R. No. 206510 , September 16, 2014^En BancQVilrarama, Jr.]) txpayer 

Vpayers have been allowed to sue where there is a claim that public funds are sgall^disbursed or that public money is being deflected to any improper purpose, or that pcn& funds are wasted through the enforcement of an invalid or unconstitutional law. (Satu rnino C. Ocampo, e t al. v. Rear Ad m ira l Ern esto C. Enriquez, e t al., G.R G.R.. No. 225973 225973,, N ove mb er 8, 8, 2016, 2016, En Ba nc [Peralta]) Suits Filed by Conce rned Citizens

 Address: U nit 2 , 4th Floor, Espafia Espafia Place Place Building, 1139 Adeli na St reet corne co rnerr Espafia Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.viHasislawcenter.com / www.viHasislawcenter.com  / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / www.remediallawdoctrines.blogspot.com / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

 As concern ed citizens, petitioners petitione rs are also required to substantiate substa ntiate that the issue are of transcendental transcen dental signi ficance, or of paramoun t public interest. In cases involving such issues, the imminence and clarity of the threat to fundamental constitutional rights outweigh the necessity for prudence. (Sa turnin o C. C. Ocampo, et al. v. v. Rear Ad m ira l Erne sto C. C. Enriquez, et al., G.R. .R. No. 225973 225973,, No vem ber 8, 8, 2016, 2016, En Banc [Peralta]) Suits Filed by Members o f Congress In the the absence of a clear showing of any direct injury to their person or the to which they belong, their standing as members of the Congress canno' (Satu rnino C. Ocampo, e t al. v. v. Rear Ad m ira l Erne sto C. Enriquez, 225973 225973,, N ove mb er 8, 8, 2016, 2016, En Ba nc [Peralta]) The The Liberalization o f the Rules on Legal Standing The liberalization liberalization of standing standing first enunciated enunciated in Oposa, insofar insofar as^t ^ fe rs to minors minors and generations yet unborn, is now enshrined in the Rules which allows the filing of a citizen suit in environmental environm ental cases. The provision on citizen suits in the Rules Rules “collaps es the traditional rule on personal and direct interest, on the principle that humans are stewards of nature.” (See ANNOTATION TO THE RULES OF PROCEDURE FOR ENVIRONMENTAL CASES) CASES) (M os t Rev. Ped ro D. D. Ar igo , e t al. v. Sc ot t H. Swift, e t al., G.R. G.R. No. 206510, 206510, September 16, 2014, En Banc [Villarama, Jr.fi Facial Challenge James M. Imbong, et al. v. Hon^ 2014, En Banc [Mendoza])

Ochoa, Jr., et al., (GR No. 204819, April 8,

In United States (U§)^onstitutioflSil law, a facial challenge, also known as a First  Amendme  Ame ndment nt Challenge, Ch allenge, is on th ^raWaun ^raW aunched ched to assail the v alidity alidi ty of statutes concerning concern ing not only pro tecte d speech , but also alf other rights rights in the First Amendment (See (See United States v. Salerno, 481 U.S. 739 [1987]). These These includ include e religio us freedom, freedo m o f the press, and the right of the people to peaceably assemble, and to petition the Government for a red ress o f grie van ces . After all, the fundament fundamental al right to religious religious freedom freedom,, freedom freedom of the press and peaceful assembly are but component rights of the right to one’s freedom of expression, expression, as they are mode s which one’s though ts are externalized. externalized. In this jurisdi ction, the application o f doctrines originating from the U.S. has been laintained, laintained, albeit with some modifications. While this Court has withheld the of facial challenges to strictly penal statutes (Romualdez v. Commission on 576 Phil. 357 [2008]; Romualdez v. Sandiganbayan, 479 Phil. 265 [2004]; v. Sandiganbayan, 421 Phil. 290 [2001]),  [2001]),   it has expanded its scope to cover statutes not only regulating free speech, but also those involving religious freedom, and other fundamental rights (Resolution, Romualdez v. Commission on Elections, 594 Phil. 305, 316 [2008]). The underlying underlying reason reason for this modification modification is simple. For unlike its its counterpart in the U.S., this Court, under its expanded jurisdiction, is mandated by the Fundamental Law not only to settle actual controversies involving rights which are legally demandable and enforceable, but also to determine whether or not there has been a  Address: Un it 2 ,4th Floor, Espaifa Espaifa Place Place Building, 1139 Adelina S treet co rner Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com  / www.facebook.com/vil www.facebook.com/villasislawcent lasislawcenter er / www.remediallawdoctrines.blogspot www.remediallawdoctrines.blogspot.com .com /  / villasislawcenterOgmail. villasislawcenterOgmail.com com / [email protected] Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

grave abuse of discretion amounting to lack or excess of jurisdiction on the part oi any branch or instru me ntality of the Government. Veril Verily, y, the the framers framers of Our Const Constit ituti ution on envisioned a proactive Judiciary, ever vigilant with its duty to maintain the supremacy of the Constitution. Consequently, considering that the foregoing petitions have seriously alleged that th^ constitutional human rights to life, speech and religion and other fundamental riqh mentioned above have been violated by the assailed legislation, the Court has authority t< take cognizance o f these these kindred petitions and to determine if the RH (Reproductive Health) Law can indeed pass constitutional scrutiny. scrutiny. To dismiss these petitions on the the simple expedient that there exist no actual case or controversy, would diminish this Court as a reactive branch of government, acting only when the Fundamental Law has been transgressed, to the detriment of the Filipino people. people. Jos e Jes us M. Disini, Jr., et at. at. v. The Secre tary o f Jus tice, et al., G.R G.R.. No,. No,. 203335, 203335, Feb. 11,2014, En Banc (Abad) (Abad) When a penal statute encroaches upon the freedom of speech/a facial challenge grounded on the the void-for-vagueness void-for-vagueness doctrine is acceptable. The inapplicability of the the doctrine must be carefully carefully delineated. As Justice Antonio T. Carpio explained in his dissent in Romua ldez v. v. Commission Com mission on Elections, “we Elections, “we must view these statements of the Court on the inapplicability of the overbreadth and vagueness doctrines to penal statutes as appropriate only insofar as these doctrines are used to mount “facial” challenges to penal statutes not involving involving free spee ch.” In an an “as applied” challenge, the petitioner who claims a violation of his constitutional right can can raise any constitutional ground - absence of due process, lack of fair notice, lack of ascertainable standards, standards, overbreadth, or vagueness. Here, Here, one can challenge the the constitutionality of a statute statute only if he asserts a violation of his own rights. rights. It prohibits prohibits one from assailing the constitutionality of the statute based solely on the violation of the rights of third persons not before the court. This rule is also known as the prohibition prohibition against thirdparty standing. The The Void-for-vagueness Void-for-vagueness Doctrine a nd the D octrine o f Overbeadth Overbeadth Southe rn Hemisphe re Engageme nt Network, Inc., Inc., et al. v. v. Anti-Terro rism Council, et al. al. (G.R. (G.R. Nos. 178552, 178552, 178581, 178581, 178890, 179157, & 179461, 179461, 5 Oc tob er 2010, En Ban c (Carpio-Morales) In addition, a statute or act suffers from the defect of vagueness when it lacks fompeeijensible standards that men of common intelligence must necessarily guess at its  janiiig and differ d iffer as to its application. appl ication. The overbreadth overbrea dth doctrine, meanwhile, decrees decree s that th at a gove rnme ntal purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. Distinguished Distinguished from an as-applied challenge which which considers only extant facts affecting real litigants, a facial invalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or activities.  Address: U nit 2 , 4th Floor, Espafia Espafia Place Place Building, 1139 Adel ina St reet co rne r Espafia Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com  / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogSDQt.com / www.remediallawdoctrines.blogSDQt.com  / [email protected] / [email protected]  / [email protected]

Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

i

exception to some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or her. her. Moreover, chall engers to a law are not permitted to raise the rights of third parties and can only assert their own interests. In overbreadth overbrea dth analysis, those rules give way; challen ges are permitted to raise the rights of third parties; and the court invalidates the entire statute “on its fact,” not merely “as applied for” so that the overbreadth law becomes unenforceable until a property authorized court construes it more narrowly. narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the concern with the “chilling” deterrent effect of the overbreadth overbrea dth statute on third parties not courageous courag eous enough to bring bring suit. suit. The Court assumes that an overbreadth law’s “very existence existence may cause others not before the court to refrain from constitutiona lly protected speech or expression.” expressi on.” An overbreadth overbrea dth ruling rulin g is is designed to remove that deterrent effect on the speech of those third parties. parties. The rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other fundamental rights may be facially challenged. Under no case may ordinary penal statutes be subjected subjected to a facial challenge. Criminal statutes statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal criminal law, the law cannot take chances chance s as in the area of free speech. XXX Utterances Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter neither the intent of the law to punish socially harmful conduct nor the essence of the whole act as conduct and and not free free speech. It is true that the agreements and and course of conduct were in most instances brought about through speaking or writing. writing. But it has has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because that conduct was, in part, initiated, evidenced, or carried out by means of language, language, either spoken, written, or printed. Such an expansive interpretation interpretation of the constitutional guarantees of speech and press would make it practically impossible ever to enforce laws against agreements in restraint of trade as well as many other agreements and consp iracies deemed injurious to society. The

’ower of the Supreme Court •erne Court shall have the following powers:

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(5) Promulgate rules concerning the protection protection and enforcement of  constitutio nal rights, pleading, practice, and procedure proced ure in all courts, the admission admissio n to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive substantive rights. Rules of procedure of special courts

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and quasi-judicial bodies shall remain effective unless disapproved by the Suprem Court. (Section  5/5/, 1987 Constitution) In In Re: Petition for Recognition of the Exemption of the Government Service Insurance System from Payment of Legal Fees,  The Court ruled that the provision in the Charter of the GSIS, i.e.,  Section 39 of Republic Act No. 8291, which exempts it from “a1 taxes, assessments, fees, charges or duties of all kinds,” cannot operate to exempt it ft; the payment of legal legal fees. fees. This was because, unlike the the 1935 and and 1973 Constitutions^ ^hich empowered Congress to repeal, repeal, alter or supplement the rules o f the SupremC^Court ^ concerning pleading, practice and procedure, the 1987 Constitution removed this power.^pm Congress. Hence, the Supreme Court now has the sole authority authorit y to promulgate rules'" rules'" concerning pleading, practice and procedure in all courts. (GSIS v. Heir&oT Feifypdo F.

J

Caba llero, G.R. G.R. No. No. 158090, 158090, 632 SCRA 5, 5, 14-15, 14-15, Oct. 4, 4, 2010, 2010, 2n 2nd Di)U Di )U Pe r& lial) lia l) '$ ?

CONSTITUTIONAL CONSTITUTIONAL LAW Police Power  The The Power of Em inerit^om aiff 

 A 

The Constitution expressly provides in Article III, Section 9 that “private property shall not be taken for public use without jus t compensation.” The provision is the most important protection of property rights in the Constitu tion. This is a restriction on the general power of the government to to take property. property. The constitutional provision provision is about ensuring that the government does not confiscate the property o f some to give it to others. others. In part part too, too, it is about loss spreading. If the government takes away a person’s property to benefit society, society, the society should pay. pay. The principal purpose of the the guarantee is “to “to bar the Government Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the p ublic as a whole.” (City o f Manila v. Lagu io, Jr., G.R. G.R. No. No. 11812 118127, 7,

 A p ri l 12, 12, 2005; 200 5; c ite d in Mosq Mo sque ueda da,, et al. v. P ilip ili p in o Bana Ba nana na Grow Gr ow ers & Ex po rte rs  Ass  A ss o cia ci a tio n , Inc. I nc.,, e ta l., l. , G.R. No. 189185, A u g u s t 16, 16, 2016, En Ba nc [Ber [B ersa sa m in]) in ]) The The Two (2) (2) Types o f “Ta king” u nde r the the Pow er o f Eminent Domain ^ ^h er e are two different types of taking that can be identifie identified. d. A “possessory” taking curs w f ^ t h e government government confiscates confiscates or physically physically occupies occupies prop propert erty. y. A “regulat “regulatory” ory” g occurs when the government’s regulation leaves no reasonable economically viable property. (City o f Man ila v. Laguio, Jr., G.R. G.R. No. No. 118127 118127,, A p ril 12, 12, 2005) 2005) In Mosqueda, e t al. al. v. Pilipino Banana G rowers & Exporters Asso ciation , Inc., Inc., et al. (G.R. No. 189185, August 16, 2016), it was argued that the requirement of maintaining a buffer zone in all agricultural entities under Section 6 of an ordinance of Davao City prohibiting aerial spraying unduly deprives all agricultural landowners in that City of the beneficial beneficial use of their property amounting to taking without jus t compensation. compensation. The Supreme Court did not agree. Citing City of Manila v. Laguio, Jr. (G.R. (G.R. No. 118127, April 12, 12,

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2005), it clarified clarified that taking only becomes confiscatory if it substantially divests the owner the beneficial use of its property. property. According to the Court: Court: The establishmen t of the buffer zone is required fo r the purpose o f minimizing minimizing the effects of aerial aerial spraying within and near the plantations. plantations. Although Section 3(e) of the ordinance requires the planting of diversified trees within the identified buffer- / zone, the the requirement cannot be construed and deemed as confiscatoy requiring V payment payment of just compensati compensation. on. A landowner landowner may may only be be entitled entitled to to compensati compensation on if \ \ the taking amounts to a permanent denial of all economically beneficial beneficial or productive X uses of the land. The respondents cannot be said to be permanently and completely deprived of their landholdings because they can still cultivate of^nake other produc productiv tive e uses uses of the areas areas to be ident identif ified ied as the buffer buffer zones zones.. A ' ^ The Power of Taxation

THE BILL OF RIGHTS The Right to Due Proem s o f I Section 1 of the Bill of Rights lays down wh at te-knpwn te-knpwn as the “due process cl ause” of the Constitution. ^ In order to fall fall within the aegis of thisppevisio n, two conditions must concur, namely, namely, that there is a deprivation and that such dbprivatran is done without proper observance of due process. When one speak s of due process of law, however, however, a distinction must be made made between between matters of procedure procedure and matters of substance. substance. In essence, procedural due process “refers to the method or manner by which the law is enforced,” while substantive due process “requires that the law itself, not merely the procedures by which the law would be enforced, enforced , is fair, reasonable,, apef just.” jus t.” (De Leon, Leon, Textbook on the Philippine Constitution, 1991, p. 81) (Corona v. Untied Harbor Pilots Association of the Phils., 283 SCRA 31, Dec. Dec. 12, 12, 1997 [R om er o]) , The due process clauses in the American and Philippine Constitutions are not only worded in exactly identical language and terminology, but more importantly, they are alike in what thejr respebtive Supreme Courts have expounded as the spirit with which the ^ o v is io n s '^ e informed and and impresse impressed, d, the the elastici elasticity ty in in their interpr interpretat etation, ion, their their dynam dynamic ic a ^ ^ e s ili e p t character character which which make them them capable capable of meeting meeting every moder modern n problem problem,, and ig been designed from earliest time to the present to meet the exigencies of an led and expandin g future. The requiremen ts of due process are interpreted in both, both, th^United States and the Philippines as not denying to the law the capacity for progress and improvement. Toward this effect and in order to avoid the confines of a legal straitjacket, the courts instead prefer to have the meaning of the due process clause “generally ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise (Twining (Twini ng v. v. New Ne w Jersey, Jersey , 211 U.S. U.S. 78). 78). Capsulized, it refers to “the embodiment embo diment of the sporting idea of fair play” (Ermita-Malate (Ermita-Malate Hotel and Motel O wner’s wner’s Association v. City Mayor 

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of Manila, 20 SCRA 849 [1967]). It relates to certain immutable principles of justice whic inhere in the very idea of free government (Holden (Hol den v. Hardy, 169 U.S. U.S. 366). Due process is comprised comprised of two components - substantive due process which requires the intrinsic validity of the law in interfering with the rights of the person to his life, liberty, or property, and procedural due process which consists of the two basic rights cfe notice and hearing, as well as the guarantee of being heard by an impartial and competo& tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-106). True to the mandate o f the due process clause, the basic rights of notice and hearing pervade not only in criminal and civil proceedings, but in administrative proceedings as weM. Non-observance of these rights will will invalidate the proceedings. Individuals are entitled to be notified of any pending case affecting their interests, and upon notice, they may claim the right to appear therein and present their side and to refute the position of the opposing parties (Cruz, (Cruz, Philippine Philippine Administrative Administrative Law, Law, 1996 ed., ed., p. 64). (S ec ret ary o f Ju st ice v. Lantion, 322 SCRA 160, 186-188, Jan. 18, 2000, En Banc [Meio]) Instances when P rior Notice or Hearing may be dispe nsed with These twin rights may, however, be considered dispensable in certain instances, such as: 1. In proceedings wher e there is an urgen t .need for immedia im mediate te action, like the summary abatement of a nuisance per se (Article 704, Civil Code), the preventive suspension of a public servant facing administrative charges (Section 63, Local Government Code, B.P. Big. 337), the padlocking of filthy restaurants or theaters showing obscene movies or like establishments which are immediate threats to public health and decency, and the cancellation of a passport of a person sought for criminal prosecution; prosecution; 2. Where there is tentativeness of administrative action, that is, where the respondent is not precluded from enjoying the right to notice and hearing at a later time without without prejudice to the person affected, such as the summary distraint and levy of the property of a delinquent taxpayer, and the replacement of a temporary appointee; and ^

3 /^ to e re the twin twin rights rights have have previously previously been been offered offered but the right right to exercise exercise them them had not been claimed. (Sec retary o f Ju stic e v. Lantion , 322 SCRA SCRA 160, 160, 186186188, Jan. 18, 2000, En Banc [Meio])

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

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Such vague law is repugnant to the Constitution in two (2) respects: one, it violate due process as it fails to afford persons fair notice of the conduct to avoid and; second, it gives law enforcers unbridled discretion in carrying out provisions and, therefore, in effect, it becomes an arbitrary flexing of the govern ment’s muscle. muscle. However, for this to be validly invoked, the act or law must be utterly vague on i face that it cannot be clarified either by a saving clause or by statutory construction. construction. Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., ei No. 189185 189185,, Au gu st 16, 2016, 2016, En Banc (B ersam in)  An Ordinance Ordinanc e enacted by the City of Davao prohibiting ae rij agricultural entities in that City and requiring affected parties to shij pesticide application within a three-month period under pain of unconstitutional unconstitutional as it violates due process for being oppressive. oppressive.

sprayfWLin all r mg8es of declared

Held: The impossi impossibil bility ity of carry carrying ing out ^£ h if t T ^^ n o fn er mode mode of pestic pesticide ide application within three months can readilyJae cbpreciateagiven the vast area of the affecte affected d plantatio plantations ns and the corre spo ndin g^^q yree s required required therefor therefor.. X x x Xxx The required civil works for tfie conversion to truck-mounted boom spraying alone will consume consume considerable considerable tir r ^ lh d financial financial resources resources given given the topography topography and geographical features features of tlte plantations. As such, the the completion could not be completed within within the short timeframe of three three months. Requiring the respondents and other affected individuals to comply with the consequences of the ban within the three-month period under pain of penalty like fine, imprisonment and even cancellation of business permits would definitely be oppressive as to constitute abuse of police power." Extradition and Due Process Secretary of Justice v. Honorable Ralph Lantion, October 17, 2000 Resolution of the p o tio n for Reco Reconsi nsider derat atio ion n ring the initial evaluation stage at the Department of Justice of an extradition eding, an extraditee is not yet entitled to the documents he was requesting (like copy of re«[uest for his extradition from the requesting government, and supporting documents and evidences) evidence s) so that he may be able to prepare for his defense. That is because an extradition is “sui generis;” it is not similar to a criminal proceeding which will call into operation all of the rights of an accused as guaranteed by the Bill of Rights.

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

The Right to the Equal Protection of the Laws The constitutional right to equal protection requires that all persons or things su situated situated should be treated treated alike, alike, both as to rights conferred and and responsibilities im jw e c requires requires public public bodies and and instituti institutions ons to treat treat similarly similarly situated situated individuals individuals i f r o sf e la r manner. manner. The guarantee of equal protection protection secures every person w ift tn ^b e Star  jurisdictio  juris dictio n against agains t intentional and arbitrary discrimination discrim ination,, whether whe ther qpfe sk he express terms of a statute or by its improper execution through the State’sdH l auth author orit itie ies. s. The The conc concep eptt of equa equall justi justice ce under under the the law law d e m a n d ^ n ^ ^ ^ ^ impartially impart ially and not to draw distinctions distincti ons between individuals soJ^fvQn dirterer irrelevant to the legitimate governmental objective. objective.

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Equal Equal protection protection neither requires universal universal application of laws to all persons o r things without distinction, nor intends to prohibit legislation by limiting the object to which it is directed or by the territory in in which which it is to to operate. The guaranty of equal protection protection envisions equality equality among equals determined according according to a valid classification. classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from another. In othe r words, a valid classification must be: (1) based on substantial distinctions; (2) germane to the purposes of the law; (3) not limited to existing conditions only; and (4) equally applicable to all members of the class. (Mosqueda, et al. al. v. Pilipino Banana G rowers & Ex porters As soc iation, Inc., Inc., e t al., al., G.R. .R. No. 189185, August 16, 2016, En Banc [Bersamin]) The The Thre Three e (3) (3) Levels o f Scru tiny to Determine the Propriety o f the Classification Classification unde r  the Equal Protection Clause The reasonability of a distinction and sufficiency of the justification given by the Government for its conduct is gauged by using the means-end test. This test requires analysis of: (1) the interests of the public that generally requires its exercise, as distinguished from those of a particular class; and (2) the means employed that are reasonably necessary for the accomplishment of the purpose and are not unduly oppressive on individuals. individuals. To determine the the propriety of the classification, classification, courts resort to to three three of scrutiny, viz: the rational scrutiny, scrutiny, intermediate intermediate scrutiny and scrutiny and strict scrutiny. The rational basis scrutiny  scrutiny  (also known as the rational relation test or rational basis teat) demands that the classification classification reasonably relate to the legislative purpose. purpose. The rational basis test often applies in cases involving economics or social welfare, or to any other case not involving a suspect class. When the classification puts a quasi-suspect class at a disadvantage, it will be treated under intermediate intermedia te or heightened heightene d review. Classifications Classific ations based on gender gend er or illegitimacy illegitim acy receives intermedia te scrutiny. scrutiny. To survive intermediate scrutiny, the law must  Address: U nit 2 , 4th Floor, Espafia Place Place Building, 1139 Adelina St reet co rner Espa Esparfa rfa Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.villasislawcenter.com  / www.facebook. com/villasislawcenter / www.remediallawdoctrines.blogsDot.com www.remediallawdoctrines.blogsDot.com villasislawcenterOgmail.com / mvplawoffice mvplawoffice(5)gma (5)gmail.com il.com Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

not only further an important governmental interest and be substantially related to tha interest, but the justification for the classification must be genuine and must not depend on broad generalizations. The strict scrutiny review applies when a legislative classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar clas disadvantage of a suspect class. class. The Government carries the burden to prove that classification is necessary to achieve a compelling state interest, and that it is the restrictive means to protect such interest. (Mosqueda, et al. v. Pilipino Banana Gmwe Exporters Association, Inc., et al., G.R. No. 189185,  A u g u s t 16, 16, 201 [Bersamin]) In Mosqueda, e t al. al. v. v. Pilipin o Banana G rowers & Exporters Ass ociation, fiic., et al., (G.R. No. 189185, August 16, 2016, En Banc [Bersamin]),  [Bersamin]),   the^CMffMfeplying the rational basis test,  test,  ruled that the ordinance of Davao City prohibiting aerial spraying in all agricultural entities therein as the practice produces pesticide dnB^usWnnconvenience and harm harm to the residen residents ts and degrades degrades the environ environment ment,, v ro la i^ y ij e equal protect protection ion clause, hence, should be declared unconstitu tional. The Court Held: The occurrence of pesticide drift is not limited to aerial spraying but results from the conduct of any mode of pesticide pesticide application. application. Even manual manual spraying or truck-mounted boom spraying produces drift that may bring about the same inconvenience, discomfort and alleged health risks to the community and to the environment. A ban against aerial spraying does not weed out the harm that the ordinance seeks to achieve. In the process, process, the ordinance suffers from being “underinclusive” because the classification does not include all individuals tainted with the same mischief that the law seeks to eliminate. eliminate. A classification classification that is drastically underinclusive with respect to the purpose or end appears as an irrational means to the legislative end because it poorly serves the intended purpose o f the law. law. \\\ Xxx

"'•> >

 Asid e from its being underinclus ive, the assailed assaile d ordinance ordin ance also tends tend s to be “overinclusive” because its impending implementation will affect groups that have no elation to the accomplishment of the legislative purpose. purpose. Its implementation will ecessarily impose a burden on a wider range of individuals than those included in tende d class based on the purpose of the law. law. It can be noted that the imposition of the ban is too broad because the ordinance applies irrespective irrespective o f the substance to be aerially applied and irrespective of the agricultural agricultural activity to be conducted. The respondents admit that they aerially aerially treat their plantations not only with pesticides but also vitamins and other substances. The imposition of the ban against aerial spraying of substances other than fungicides and regardless of the agricultural activity being performed becomes unreasonable inasmuch as it patently bears no relation to the purported inconvenience, discomfort, health risk risk and environmental environmental danger which the the ordinance seeks to address. address. The burden now will become more onerous to various entities, including the respondents

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and even others with no connection whatsoever to the intended purpose of th ordinance.” Xxx The overinclusiveness of Ordinance No. 0309-07 may also be traced to it Section 6 by virtue o f its requirement for the maintenance of the 30-meter buffer z. This requirement applies regardless of the area of the agricultural landholding, geographical location, topography, crops grown and other distinguishing characteristic chara cteristics s that ideally should bear a reasonable relati on to the evil .sough .so ugh tto be J? avoided. As earlier stated, stated, only large banana plantations could, could, on ae rpl technology because of the financial capital required required therefor. therefor. : The establishment and maintenance maintenance of the the buffer ^or i^^ W -'-lii fep me more burdensome to the small landholders because: (1) they have to resetj/e the 30-meter belt surrounding their their property; property; (2) that will have to be id e n tf iiw ih fg y in GPS GPS;; (3) the metes metes and bounds bounds of the the buffer zone will will have to be jp lo til ty p ^ i survey survey plan plan for submission to the local government unit; and (4) will be limited as to the crops that may be cultivated therein based on the mandate that the zone shall be devoted to “diversified trees” taller than what are are being grown grown therein. therein. The arbitrariness of Section 6 all the more becomes evident when the land is presently devoted to the cultivation of root crops and vegetables, and trees or plants slightly taller than the root crops and vegetables are then to be planted. planted. It is is seriously to be doubted whether such circumstance will prevent the occurrence of the drift to the nearby residential areas. Section 6 also subjects to the 30-meter buffer zone requirement agricultural entities engaging in organic farming, and do not contribute to the occurrence of pesticide drift. drift. The classification indisputably becomes arbitrary and whimsical. whimsical.  A substantiall substa ntially y overinclusi overin clusive ve o r underinclu un derinclu sive classific ation tends to undercut the governmental claim that the classification serves legitimate political political ends. ends. Where overindusiveness is the problem, the vice is that the law has a greater discriminatory or burdensome burdenso me effect than necessary. In this light, we strike down Section 5 and Section 6 of Ordinance 0309-07 for carrying an invidious classification, and for i^greby violating the Equal Protection Clause. Xxx Evidently, the ordinance discriminates against large farmholdings that are the only ideal venues for the investment of machineries and equipment capable of aerial spraying. It effectively denies the affected affected individuals the technology aimed aimed at efficient and cost-effective operations and cultivation not only of banana but of other crops as well. The prohibition against aerial spraying spraying will seriously hamper the operations of the banana plantations that depend on aerial technology to arrest the spread of the Black Sigatoka disease and other menaces that threaten their   Address: U nit 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet co rne r Espafia Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com www.villasislawcenter.com /  / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / www.remediallawdoctrines.blogspot.com  / [email protected] / [email protected]  / mvplawoffice(5>emai mvplawoffice(5>email.com l.com Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

production and harvest. X x x the effect of the ban will not be limited to Davao City view of the significant contribution of banana expo rt trading to the country’s economy. The discriminatory character of the ordinance makes it unreasonable in light of the existence and availability of more practical alternatives that will not overburden the respondents and on their operations as well as those who stand to be affected affected by the

oppressive and permissible and those depende ordinance. X , ordinance.

The Right against Unreasonable Searches and Seizures  Abd  A bd u la v. Gu ian i In a criminal proceeding, there are two (2) determinations of is made by the prosecutor during preliminary investigation for criminal criminal information in court; court; and the o ther is made by the judge warrant of arrest, or o f a search warrant. warrant.

yse, ip., one ip.,  one filing the se of issuing a

The determination of probable cause for the purpose of filinathff'criminal information in cour courtt is is an exec execut utiv ive e func functi tion. on. It is a func functi tion on that that b e l o n g s p r o s e c u t o r , an offi office cerr under the the Department of Justice, Justice, a department under the executive branch. branch. On the other hand, the determination of probable cause for the purpose of issuing a warrant of arrest, or even that of a search warrant, is a judicial function, because under Section 2 of the Bill of Rights of the Constitution, Constitution, on ly a judge may issue a warran t of arrest or of a search warrant. For this reason, the judge is not bound by the determination of probable cause by the prosecutor. prosecutor. In fact, he should not rely solely on the finding of probable cause by the the prosecutor because he is mandated by the Constitution to determine probable cause personally. He cannot abdicate the performance of that function in favor of the prosecutor if he wanted to remain faithful to the Constitution. Government o f the the USA v. v. Jud ge Purganan ge  Purganan Prior notice or hearing is not required before a judge issues a warrant of arrest of an extraditee once the petition for extradition is filed in court on two (2) basis, i.e., statutory i.e., statutory (Sec. 6, P.D. No. No. 1069); and constitutiona constit utionall (Sec. 2, Art. Ill o f the Bill of Rights). On statutory basis I5n 6, P.D. No. 1069 (Extradition Law) provides that the moment the petition for is filed in the RTC, the judge shall cause the immediate issuance of a warrant of Hearing entails sending of notices to opposing parties, and receiving facts and arguments from them. Arrest subsequent to a hearing can can no longer be considered “immediate.” The law could not have intended the use o f the word “immediate” a superfluity. superfluity. On constitutional basis Even Section 2, Article III of the Bill of Rights does not require notice or hearing before a judge issues a warrant of arrest. arrest. On the contrary, contrary, what the Constitution provides is  Address: Un it 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet corn er Espafia Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.facebook.com/vi www.facebook.com/villasislawcenter llasislawcenter / www.remediallawdoctri www.remediallawdoctrines.blogspot.com nes.blogspot.com [email protected] / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

“after examination under oath or affirmation of the complainant (not of the accused) and th witnesses he may produce.” Search Incide ntal to a Law ful Arr es t (Section 13, 13, Rule 126, 126, Rules o f Court) Court) This is the most common among the instances of valid warrantless warrantless searches. Th eC object of this kind of warrantless search is to obtain object or effect of a crime, like the stotefr.,. wallet or the knife used in hold-up. The three (3) important features of this kind of warrantless search are: are: 1. In this kind if warrantle ss search, the arrest always precedes the search; process cannot be reversed; 2. The precedent arrest must always be lawful lawful because, if the the precedent arrest is unlawful, the subsequent search, although it may have yielded positive results, may never validate the unlawful unlawful arrest that preceded it; and 3. The search must be limited or confined confined only to the immediate vicinity of the place of the arrest. arrest. It may not be extended extended beyond tha t Valmonte v. De Villa For searches at checkpoints to be valid; th e following mu st be observed: 1. The checkpoin t must be pre-announoed; 2. It must be stationary; and 3. The search at checkpoint must be limited to visual search only. only. An intrusive search is not allowed Social Justice Society v. Dangerous Dangerous Drugs Bo ard The Mandatory Drug Testing under R.A. No. 9165 (The Comprehensive Dangerous Drugs Act) does n ot constitute unreasonable search prohibited by the Constitution. Constitution. It falls under the the category of an administrative search. search. In administrative searches, searches, the strict strict probable cause requirement is not applied. People v. Leila Leila Johnso n one is at the nation’s airport and wanted to travel by air, he has no reasonable n of privacy and can be subject to warrantless search. search. This is in view of increased n over airplane hijacking and terrorism. In the later case of People v. Susan Canton,  Canton,  the SC held that this is now another instance of valid warrantless search search - warrantless searches at airports. airports. People v. Doria The requisites for the “plain view” doctrine to be validly invoked are:  Address: U nit 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet co rner Espafia Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.villasislawcenter.com  / www.facebook.c om/villasislawcenter / www.remediallawdoctrines.blogspot.com / www.remediallawdoctrines.blogspot.com  / [email protected] / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

1. The law enforcement officer officer must have a valid justification for an intrusion, or is in in a position where he can view a particular area; 2. The discovery of the evidence in plain view must be inadvertent; inadvertent; and 3. It is immediately apparent to him that the the thing he sees is object of a crime, crime, contraband, or subject to seizure. It is clear that if the object is inside a closed container, “plain view” may_ invoked. However, even even if it inside a closed container but if due to the configura configurati ti container, or due to its transparency, it can still be seen from the outside “plain view” may still be invoked.

The Right to Privacy Is there a cons titutional right to privacy?

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

we will find that the right of privacy is Indeed, if we extend oUTJ^diciai recognized and enshrined inaseveranSrovi&ons of our Constit Constitution. ution. (Morfe v. v. Mutuc, 22 SCRA 424, 444 [1968]; Cortes? The Constitution al Foundations Found ations o f Privacy, p. 18 [1970]). It is expressly recognized in SeeSdff3 (1) of the Bill of Rights x x x . Other facets of the right to privacy are protected in various provisions of the Bill o f Rights Rights   (viz: Secs. 1, 2, 6, 8, and 17. (Ople v. Torres, G.R. G.R. No.

J u ly 23 ,19 98 [Pun o])

What are are th&ZQn th&ZQnes es o f priva cy recog nized and protecte d in ou r laws? laws?

•The Civil Code   provides that “[ejvery person shall respect the dignity, personality, privacy privacy ^ d peace of mind mind of his neighbors neighbors and and other persons” and and punishes as actionable actionable rts se ve ril ac ts by a person person of meddling and prying prying into the privacy of another. It also a ||pblic officer or employee or any private individual liable for damages for any f the rights and liberties of another person, and recognizes the privacy of letters er private communications. The Revised Penal Code makes a crime the violation of by an officer, the revelation of trade and industrial industrial secrets, secrets, and trespas s to dwelling. Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law (R.A. 4200), the Secrecy of Bank Deposits (R.A. 1405) and the Intellectual Property Code (R.A. 8293). The Rules of Court   on privileged communication likewise recognize the privacy of certain information (Section 24, Rule 130[c], Revised Rules on Evidence). (Ople v. Torres, G.R. No. 127685, 127685, Ju ly 23, 1998 [Pun o])  Address: U nit 2 ,4th Floor, Espa Esparto rto Place Place Building, 1139 Adeli na St reet corne co rnerr Espana Espana Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com www.villasislawcenter.com /  / www.facebook.com/villasislawcenter / www.remediallawdoctrine www.remediallawdoctrines.blogsDQt. s.blogsDQt.com com /  / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

Jos e Jesu s M. Disini, Jr., et al. al. v. The Secretary o f Justice, et al., al., G.R. G.R. No,. No,. 20333 203335, 5, 11, 2014, En Banc (Abad)

The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a facet of the right protected by the guarantee against unreasonable searches and seizures. But the Court acknowledged its existence as early as 1968 in Morft^-:^ v. Mutuc, it ruled that the the right to privacy exists independently of its identification with liberty^ ) it is in itself fully deserving of constitutional protection. protection. ' Relevant to to any discussion of the the right to privacy is the concept known as the “2bp es V of Privacy.” Privacy.” The Court explained in “In the M atter of the Petition Petition for Issuance Issuance o f Writ o f  .< /. Habeas Corpus o f Sabio Sabio v. Senator Gordon”   the relevance of these zones to the right to privacy priv acy:: ... .. . . v\ Zones of privacy privacy are recogniz recognized ed and protected protected in our la ^ , .,Wi .,With thin in these these zones, any form of intrusion is impermissible unless excused by law and in accordance with customary legal legal process. The meticulous regard we accord to these zones arises not only from our conviction that the right to privacy is a “constitutional right” and “the right most valued by civilized men,” but also from our adherence to the Universal Declaration of Human Rights which mandates that, “no one shall be subjected to arbitrary interference with his privacy” and “everyone has the right to the protection of the law against such interference or attacks.” Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable searches and seizures, which is the basis of the right to be let alone, and (b) the right to privacy of communication and correspondence. In assessing assessing the challenge tha t the State has impermissibly intruded into these zones of privacy, privacy, a court must determine whether a person has exhibited a reasonable expectation of privacy and, ifj$o, whether that expectation has been violated by unreasonable government intrus

Freedom of Expression Contei

strictio ns on free speech, and content-neutral regulations fent-bas -based restrictions  are imposed because of the content of the speech and

ore, subject to the clear-and-present danger test. For example, a rule such such as that d in Sanida San idad d v. Comelec,  prohibiting columnists, commentators, and announcers from paigning either for or against an issue in a plebiscite must have compelling reason to support it, or it will not pass muster under strict scrutiny. These Thes e restrictions are censorial and therefore they bear a heavy presumption of constitutional invalidity. In addition, they will be tested for possible overbreadth and vagueness. Content-neutral restrictions, restrictions,  on the other hand, like Sec. 11(b) of R.A. No. 6646,

which prohibits the sale or donation of print space and air time to political candidates during  Address: Un it 2 ,4th Floor, Esparia Esparia Place Place Building, 1139 Adelina Stree t corne r Espana Espana Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com  / www.facebook.com/villasislawcenter/www.remediallawdoctrines.blogspot.com  / villasislawc enterOgm ail.com / mvplawoffice(5)gmail.com mvplawoffice(5)gmail.com Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

the campaign period, are not concerned with with the content of the speech. These regulation need only a substantial governmental governmental in terest to support them. them. A deferential standard of review will suffice to test their validity. The clear-and-present danger rule is inappropriate as a test for determining the constitutional validity of laws, like Sec. 11(b) of R.A. No. 6646, which are not concerned with with the content of political political ads but only with with their incidents. To apply the clear-and-present danger test to such regulatory measures would be like using sledgehammer to drive a nail when a regular hammer is all that is needed. The test for this difference in the level of justification for the restriction of speech is that content-based restrictions distort public debate, have improper motivation,- and are usually imposed because of fear of how people will will react to a particular speech. No such reasons underlie content-neutral regulations, like regulation of time, place and manner of holding public assemblies under B.P. Big. 880, the Public Assembly Act of 1985. (Osmena v. COMELEC, 288 SCRA 447, March 31, 1998 [Mendoza]) What is the mos t influential influential test for distinguishing content-based content-based from from content-neutral content-neutral regulations? The United States Supreme Court held in United States States v. v. O ’ Brien: [A] a governmental regulation regulation is sufficiently justified (1) if it is within the constitutional power of the government; (2) if it furthers ah important or substantial governmental interest; (3) if the governmental interest is unrelated to the suppression of free expression; and (4) if the incidental restriction on alleged First Amendment freedoms (of speech, expression and press) is no greater than is essential to the furtherance of that interest (391 (391 U.S. U.S. 367, 20 L. L. Ed. 2 df69 2, 680 [1968 ] [brackete d numbers added]) This is so far the most influential test for distinguishing content-based from contentneutral regulations and is said to have “become canonical in the review of such laws.” (G. (G. Gun ther the r & K. Sullivan, Sullivan , Constitu Con stitution tional al La w 1217 [13(h ed. 1997]). It is noteworthy noteworthy that the the O ’ Brien  Brien  test has been applied by this Court in at least two cases (Adiong v. Comelec, 207 SCRA 712 [1992]; Osmena v. Comelec, supra.). Under this test, even if a law furthers an important or substantial governmental interest, it should be invalidated if such governmental interest is “not unrelated to the suppression of free expression.” Moreover, Moreover, even if the purpose is unrelated to the pression of free speech, the law should nevertheless be invalidated if the restriction on om of expression is greater than is necessary to achieve the governmental purpose in uesttap'’ (Social Weather Stations, Inc. v. Comelec, G.R. No. 147571, May 5, 2001, En Mendoza]) CHcivez v. Secretary Gonzales The Diocese o f Bacolod, Represen ted by the Mo st Rev. Rev. Bisho p Vicente M. Navarra, Navarra, et al. v. COMELEC, GR No. 205728, January 21, 2015, En Banc (Leonen) This case defines the extent that our people may shape the debates during elections. elections. It is significant and of first impression. We are asked to decide whether the Commission on

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 Address: Un it 2 ,4th Floor, Espa Esparfa rfa Place Place Building, 1139 Adelina Stree t corne r Espana Espana Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com  / www.facebook.com/villasislawcenter/www.remediallawdoctrines.blogspot.com  / villasislawcenterOgmail. villasislawcenterOgmail.com com / [email protected] Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

Elections (COMELEC) has the the competence to limit expressions made by the citizens - wh are not candidates - during elections. elections. Before us is a special civil action for certiorari and prohibition under Rule 65 of the Rules of Court seeking to nullify COMELEC’s Notice to Remove Campaign Materials. SUBSTANTIVE ISSUES  A. COMELEC COMELE C h ad n o le ga l ba sis to re gu late la te ex pr es sio ns made ma de b y pri p riva va te cit ize ns . Respondents (COMELEC officials) cite the Constitution, laws, and jurisprudence to support their position position that they had the power to regulate the tarpaulin. tarpaulin. However, However, all of these provisions pertain to candida tes and political parties. Petitioners Petitione rs are not candidates. candida tes. Neither Neithe r do they belong to any political political party. COMELEC does not have the authority to regulate the enjoyment of the preferred right to freedom of expression exercised by a non-candidate in this case. First, First, respondents cite Article IX-C, Section 4 o f the the Constitution x x x. X x x We held that that the “evil sought to be prevented prevented by this provision is the the possibility that a franchise holder may favor or give any undue advantage to a candidate in terms of advertising space or radio or television time.’’ (Sanidad v. COMELEC, 260 Phil. 565 [1990]) This Court found that “[m]edia practitioners exercising their freedom of expression during plebiscite periods are neither the franchise holders nor the candidates!,]” thus, their right to expression during this period may not be regulated by COMELEC. Similar to the media^ petitioners in the case at bar are neither franchise holders nor candidates. Respondents likewise cite Article IX-C, IX-C, Section 2(7) o f the the Constitution x x x. Based on the enumeration made on acts that may be penalized, it will be inferred that this provision only affects candidates. Petitioners assail the “Notice to Remove Campaign Materials” issued by COMELEC. This was followed by the assailed letter regarding regarding the “election propaganda materials posted the church vicinity promoting for or against the candidates and party-list groups . . ." *of the Fair Election Act (R.A. No. 9006 [2001]) on the posting of campaign only mentions “pa rties” and “candidates” x x x. Xxx Respondents considered the tarpaulin as a campaign material in their issuances. The above provisions regulating the posting of campaign materials only apply to candidates and political parties, and petitioners are neither of the two.

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Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

Section 3 of Republic Act No. 9006 on “Lawful Election Propaganda” also states these are “allowed for all registered political parties, national, regional, sectoral parties or organizations participating under the party-list elections and for all bona fide candidates seeking national and local elective positions subject to the limitation on authorized expenses of candidates and political political par tie s.. . ” Section 6 of COMELEC Resolution Resolution No. No. 9615 provides provides for a similar wording. wording. These provisions show that election propaganda refers to matter done behalf of and in in coordination coordinatio n with candidates and political parties. Some^ coordination with the candidates and political parties for whom the election projj released would ensure that these candidates and political parties mair authorized expenses limitation. limitation. The tarpaulin was not paid for by any candidate or politicarp; allegation that petitioners coordinated with any of the persoa^name regarding its posting. On the other hand, petitioners postedJnete«Tteiu advocacy against the RH Law.

te was no the tarpaulin 5s part of their 

Xxx In this case, the tarpaulin contains sp statement of either appreciation or criticism Thus Thus,, petiti petitioner oners s invoke invoke their their right right to fr e e d ^ o f exj? exj?

atter of public concern, that is, a le in the passing of the RH law. non.

B. The The violation violation o f the cons titutional righ t to freedom o f speech and expression No law.

Whil While e it is is tru true e /h a ^ N ^ ^ s e n t peti petiti tion on ass assai ails ls not not a law but an opinion by the COMELEC Law Department, thj^3burt has applied Article III , Section 4 of the Constitution even to governmental acts. sffell&e p asse d abridging abridging..

;|A II regulations will will have a impact directly or indirectly indirectly on expression. The prohibition prohibition uljStii against fhe abridgment of speech should not mean an absolute prohibition prohibition agains t regulation, regulation, e p ri m a l^ n d incident incidental al burden burden on speech speech must be be weighed weighed against against a compell compelling ing state state  —* -^ a rl y allowed in the Constitution. The test depends depen ds on the relevant releva nt theory theo ry of plicit in the kind of society framed by our Constitution. Our Constitution Constitution has also explicitly included the freedom o f expression, separate and in addition addition to the freedom of speech and of the the press provided in the US Constitution. The word “expressio n” was added in the 1987 Constitution Constitution x x x for having a wider scope x x x. Speech may be said to be inextricably linked to freedom freedom itself as “[t]he “[t]he right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.” (Freedom o f Speech an d Expression, 116 Harv. L. Rev. Rev.  Address: U nit 2 , 4th Floor, Esparia Esparia Place Place Building, 1139 Adelina S treet co rner Espaiia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com www.villasislawcenter.com /  / www.facebook.com/villas www.facebook.com/villasislawcenter islawcenter/www.remediallawdoctr /www.remediallawdoctrines.bl ines.blogspot.com ogspot.com /  / villasislawcenter(5 villasislawcenter(5>gmail.c >gmail.com om / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

272, 277 [2002], quoting Justice Ken nedy in Ashcroft v. v. Free Speech Coalition, Coalition, 122 S. S. 1389, 1389, 1403 [2002]) X xx Communication is an essential ou tcome of protected speech. Communication exists when “(1) a speaker, seeking to signal others,^tees conventional actions because he or she reasonably believes that such actions will be tafen by the audience in the manner intended; and (2) the audience so takes the actions.” (Heidi M. Hurd, Sove reignty reign ty in Silence, 99 Yale L J. 945, 954 [1990]) [1990] ) “[l]n communicative action[,] the hearer may respond to the claims by x x x either accepting the speech act’s claims or opposing them with criticism or requests for justification.” (Hugh Baxter,' System and Lifeworld in Habe rma’s rma’s Theory of Law, Law, 23 Cardozo L. L. Rev. Rev. 473, 499 [2002]) Speech is not limited limited to vocal communication. communication. “[Cjonduc t is treated as a form of speech sometimes referred to as ‘symbolic speech[,]’ (Joshua Waldman, Symbolic Speech and Social Meaning, 97 Colum. L. Rev. 1844, 1847 [1997]) such that "w he n ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct,’ the ‘communicative element’ of the conduct may be ‘sufficient to bring into play the [right to freedom of expression].”’ (Id., citing US v. O’Brien, 391 U.S. 367, 376 [1968]) The right to freedom of expression, thus, applies to the entire continuum of speech from utterances made to conduct enacted, and even to inaction itself as a symbolic manner of communication. communication. Even before freedom “of expression" was included in Article III, Section 4 of the present Constitution, this court has applied its precedent version to expressions other than verbal utterances. Freedom Freedom o f expression and^equali and^equality ty The possibili guarantee guarantee of freedom of expression to individuals without any relationship to any should not be held hostage by the p ossibility of abuse by those seeking to However, labeling all expressions of private parties that tend to have an debate in the elections as election paraphernalia would be too broad a remedy stifle genuine speech. Instead, Instead, to address this evil, better and more effective effective lament lament will be the least restrictive means to the fundamental freedom.

COMELEC”s general role includes a mandate to ensure equal opportunities and reduce spending among cand idates and th eir registered political parties. parties. It is not to regulate or limit speech o f the electorate as it strives to participate in the electoral exercise. exercise.  Address: U nit 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet co rner Espafia Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.villasislawcenter.com  / www.facebook.c om/villasislawcenter / www.remediallawdoctrines.blogspot.com villasislawcenter(5> villasislawcenter(5>gmail.com gmail.com / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

running for for public office. Their message may be construed generalizations of very complex individuals and party-list organizations. They are classified classified into black black and white: as belonging to “Team Patay” or “Team Buhay.” But this caricature, caricature, though not agreeable to some, is still still protected speech. X xx Some may have thought that there should be more room to consi broad-minded and non-judgmental. non-judgmental. Some may have expected that the aut more space to practice forgiveness and humility. humility.  A But, But, the the Bill Bill of Righ Rights ts enumera enumerated ted in in our Const Constit ituti ution on is ^ r^ ^ ff iB H g jp n of our our fundamental liberties. liberties. It is not a detailed code that presc ribe s^o od conduct. It provides space space for all all to be be guide guided d by their conscien conscience, ce, not only only in t h ^ c W u n h d k cr cro to others others but but also in judgmen t of the acts o f others. others. Freedom for the thought we can disagree wjjtf can H^^iejped not only by those in the minority. This can often often be expressed by cjpmirr cjpmirrant ant institutions, institutions , even religious ones. That they made their their point point dramat dramatically ically and in^a in^a llf e ^ ^ a y does not necessari necessarily ly mean mean that their statements are true, or that they have b^S^^ntharfcey have been expressed in good

Embedded in the tarpaulin Viowe Vio weveiV veiV are opinions opini ons expressed by petitioners. petitioners. It is a specie of expression expression protected protected tf y m jr fundamental law. law. It is an expression expression designed to invite invite attei attei i ^ p d o ll y , persuade persuade.. It may be motivated motivated by the interpretati interpretati ecclesiastical duty, but their parishioner’s actions will have very i Cei

|es do matter for the elections.

Wh is the most sacred of speech forms: expression by the electorate olic olic to debate contemporary issues. This is not speech by candidates dr political political parties to entice votes. It is a portion of the electorate telling C a nd id as th e^w nditio ns for their election election.. It is the substant substantive ive content content of the right to rage. is is a form of speech hopeful o f a quality of democracy that we should all deserve. btected as a fundamental and primordial right by our Constitution. Constitution. The expression in th # medium medium chosen by p etitioners deserves our protection. protection. Freedom o f the Press Press Fou r (4) (4) Aspects o f Press Press Freedom

 Address: U nit 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Ade lina St reet co rner Espana Espana Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.villasislawcenter.com  / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com villasislawcenterOgmail.com villasislawcenterOgmail.com / [email protected] Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

Philippine jurisprudence, even as early as the period under the 1935 Constitution, has recognized four aspects of freedom freedom o f the press. These are (1) freedom from prior restraint; (2) freedom from punishment subsequent to publication; (3) freedom of access to information; information; and (4) freedom freedom of circulation. (Franc isco Chavez v. Raul M. M. Gonzales, e t al., al., G.R. G.R. No. 168338, 168338, 15 Feb rua ry 2008, 2008, En Ban c [Puno , CJ]) Freedom Freedom o f Assem bly The first point to mark is that the right to peaceably assemble and petition fq of grievances is, together with freedom of speech, of expression, and of the that enjoys primacy in the the realm of constitutional constitutional protection. For these right^dBtostitute right^dBtostitute very basis of a functional democratic polity, without which all the oth^ meaningless and unprotected. unprotected. (BAYAN, et al. v. Ermita, et al., G.R. 2006 2006,, En B anc [Azcu na])

Batas Pambansa Big. 880 - The P ublic Assei Meaning Meaning o f Public Public Assem bly “Public assembly” means any rally, demonstration, marcRTparade marcRTparade,, procession or any other form of mass o r concerted action held in a public place for the purpose of presenting a lawful cause, or expressing an opinion to the general public on any particular issue; or protesting or influencing any state of affairs whether political, economic or social; or petitioning petitioning the government for redress o f grievances. The processions, rallies, parades, demonstrations, public meetings and assemblages for religious purposes shall be governed by local ordinances; Provided, however,  however,  That the declaration of policy as provided in Section 2 of this Act shall be faithfully observed. The definition herein contained shall not include picketing and other concerted action in strike areas by workers and employees resulting from a labor dispute as defined by the Labor Code, its implementing rules and regulations, and by the Batas Pambansa Bilang 227. (Section 3[a], B.P. Big. 880) Permit when required and when no t required  A written permit shall be required for any person or persons to organize and hold a mb ly in a public place. place. However, However, no permit shall be required if the public shall be done or made in a freedom park duly established by law or ordinance or nvate property, in which case only the consent of the owner or the one entitled to its possession is required, or in the campus of a government-owned and operated educational institution which shall be su bject to the rules and regulations o f said educational educational institution. institution. Political meetings or rallies rallies held during any election election campaign period as provided for by law are not covered by this Act. (Section 4, B.P. Big. 880) Freedom Parks  Address: Un it 2 ,4

Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet corn er Espafia Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/vi www.facebook.com/villasislawcenter llasislawcenter / www.remediallawdoctrines.blogspot.com www.remediallawdoctrines.blogspot.com /  / [email protected] / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

i

Every city and municipality in the country shall within six months after the effectivi of this Act establish or designate at least one suitable “freedom park” or mall in their respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at any time without the need of any prior permit. (Section 5, B.P. Big. 880)  A c tio n to be tak en on the ap p lic a tio n (Sec (S ectio tion n 6, B.P. Big . 880) (a) It shall shall be the duty of the the mayor or any official official acting in his be half t grant a permit unless there is clear and convincing evidence assembly will create a clear and present danger to public order, public convenience, public morals or public health. (b) The mayor or any official acting acting in his behalf shall shall act on the applica tiorfwit hin two (2) working days from the date the application was filed, failing which, the permit shall shall be deemed granted. granted. Should for any reason the mayor or any official 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. matter. (d) The action on the permit shall twenty-four hours. hours.

in wltling and served on the applicant within

(e) If the mayor or any offoal 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 o f law. law. Integra ted Bar of the Ph ilippines v. Hon. Hon. May or Jos e “L ito ” Atienza, Atienza, G.R. G.R. No. No. 17524 175241, 1, 24 February 2010, 1st Div. (Carpio Morales) The Integrated Bar of the Philippines (IBP) applied for a permit to rally at Mendiola Bridge. Bridge. However, However, then Manila Mayor Jose “Lito" Atienza issued a permit to rally at Plaza Miranda instead. Issue : Whethe r or not the appellate court erred in holding holding that the modification modification of the ue in IBP’s rally permit does not constitute grave abuse of discretion. discretion. eld: Section 6(c) of the Public Assembly Act (BP 880) provides that “If the mayor is view that there is imminent and grave danger of a substantive evil warranting the lial or modification of the permit, he shall immediately inform the applicant who must be heard on the matter.” In modifying the permit outright, Atienza gravely abused his discretion when he did not immediately inform the IBP who should have been heard first on the matter of his perceived imminent and grave danger of a substantive evil that may warrant the changing of the venue. Atienza failed to indicate how he had arrived at modifying modifying the terms of the permit  Address: Un it 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet corn er Espaiia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.face book.co m/villasisla wcente r / www.remediallawdoctrines.blogSDQt.com www.remediallawdoctrines.blogSDQt.com /  / [email protected] / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

against the standard of a clear and present danger test which x x x is an indispensabl condition to such modification. Nothing in the issued permit adverts to an imminent and grave danger of a substantive evil, which “blank” denial or modification would, when granted imprimatur as the appellate court would have it, render illusory any judicial scrutiny thereof. thereof. It is true that the licensing official is not devoid of discretion in determining whether oy:. not a permit would be granted. It is not, however, unfettered discretion. While Whil e prudei prudei requires that there be a realistic appraisal not of what may possibly occur but of what%tay probably  probably  occur, occur, given all all the relevant circumstances, circumstances, still the assumption assumption - especi ally,£9 where the assembly is scheduled scheduled for a specific public place place - is that that the permit must b d fo r the assembly being held there. there. It smacks of whim and caprice for Atienza to impose a change of venue for an assembly assembly that was slated for a specific publi q^fta te. H is thus thus reversible error for the appellate court not to have found such grave a^ cretion and, under specific statutory provision, not to have modified the permiyj factory to the applicant.” Meaning o f Maximum Maximum Toleran Tolerance ce “Maximum tolerance” means the highest deg^e of restraint that the military, police and other peace keeping authorities shall obserye\)uring a public assembly or in the dispersal of the same. (Section 3[c], B.P. Blgy88t B.P. No. 880 is merely a “content-neuti It is very clear that B.P. No. 880 is 5t arrabsolute ban of public assemblies but a restriction that simply regulates the time, and manner of the assemblies. This was adverted to in Osmena v. Comelec (&R. Vo. 132231, March 31, 1998, 1998, 28 8 SCRA 447), 447), where the Court referred referred to it as a “content-neutral” regulation of the time, place, and manner of holding public assemblies (Ibid, p. 478).  A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies (except picketing and other concerted action in strike areas by workers and employees resulting from a labor dispute, dispute, which are governed by the Labo r  Code and other labor laws, political meeting or rallies held during election campaign period, which are governed by the Election Code and other election related laws, and public assemblies in the campus of a government-owned and operated educational institution, which shall be subject to the rules and regulations o f said educational institution institution [Sec. [Sec. 3(a) and&ec. 4 of B.P. No. 880])  880])   that would use public places. places. The reference to “lawful cause” ,oe s% elr make it content-based because assemblies really have to be for lawful lawful causes, “ p/vi p/vise se they would not be “peaceable” and entitled to protection. protection. Neither are the words “ojmnion,” “protesting” and “influencing” in the definition of public assembly content-based, since they can can refer to any subject. subject. The words “petitioning “petitioning the government for redress of grievance griev ances” s” come from the wording of the Constitution, so its use cannot canno t be avoided. Finally, maximum maximum tolerance is for the protection protection and benefits of all rallyists and is independen t of the content of the expressions in the rally.

* 

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Furthermore, the permit can only be denied on the ground of clear and presen danger to public order, public safety, public convenience, public morals or public health. This is a recognized exception to the exercise of the right even under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights x x x. (BAYAN, etal. v. Ermita, etal., G.R. No. 169838, April 25, 2006, En Banc [Azcuna]) The Calibrated Pre-emptive Response (CPR)  Ad  A d m in is tra tr a tio n in de ali ng w ith p u b lic as se m blies bl ies

Policy

adopted

by

the

Arr  -

The Court now comes to the matter of the the CPR. As stated earlier, earlier, the Solicitor General has conceded that the use of the term should now be discontinued, since it does r*ofy mean anything ot her than the maximum tol erance eranc e policy set forth in B.P. ISIo. 880. This is stated in the Affidavit of respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor General.  At any rate, the th e Court rules rul es tha t in vie w of the maximum tolerance tolera nce mandated manda ted by B.P. No. No. 880, CPR serves no valid purpose if it means the same thing as maximum tolerance and is illegal illegal if it means something else. else. Accordingly, what is to be followed is and should be that that mandated by the law itself, namely, maximum tolerance. In sum, sum, this Court reiterates its basic policy of upholding the funda mental rights of our people, people, e specially freedom of expression and freedom o f assembly. assembly. For this reason, the so-called calibrated preemptive response policy has no place in our legal firmament and must be struck down down as a darkness that shrouds freedom. freedom. It merely confuses our people and is used by some police agents to justify 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 the benefit of rallyists, rallyists, not the government., government., The delegation to the mayors of the power to issue rally rally “permits” is valid valid because it is subject to the constitutionally-sound “clear and present danger” standard. (BAYAN, et al. v. BB v.  BB n/fa, et al „ G.R. G.R. No. No. 169838 169838,, Ap ril 25, 25, 2006, 2006, En Banc [Az cun a])

Freedom of Religion Party v. Commission on Elections, G.R. No. 190582, 618 SCRA 32,  AP ^J 8, 2£ t0, t0 , En Ba nc (De l Cas C as tillo ) 'T h e decision of the COMELEC COMELEC not to to allow the Ang Ladlad-LGBT Party to participate participate in
“Our Constitution provides in Article III, Section 5 that”[n]o law shall be made respecting an establishment of religion, religion, or prohibiting prohibiting the free exercise thereof.” thereof.” At bottom, what our non-establishment clause calls for is “government neutrality in religious matters.” matters.” Clearly, Clearly, “governmental reliance on religious religious justification inconsistent with with this policy of neutrality.” We thus find that it was grave violation violation the non-establishment clause for the COMELEC to utilize the Bible and the Koran to  justify  jus tify the th e exclusion exc lusion of Ang of Ang Ladlad. “Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend, instead, on whether the COMELEC is able to advance some justification for its rulings beyond mere conformity to religious doctrine. Otherwise stated, government must act for secular purposes and in ways that have primarily primarily secular effects effects.. X x x . ”

What is a purely ecclesiastical affair to which the State can not meddle following the Separation Separation o f Church and State State D octrine? octrine?  An ecclesias ecc lesiastical tical affair affa ir is “one that concerns concern s doctrine, creed, or form o f worship o f the church, or the adoption and enforcement within a religious association of needful laws and regulations for the government of the membership, and the power of excluding from such associations those deemed not worthy of membership.” Based on on this definition, an an ecclesiastical affair involves the relationship between the church and its members and relate relate to matters of faith, religious doctrines, worship and governance o f the congregation. To be concrete, examples of this so-called ecclesiastical affairs to which the State cannot meddle are proceedings for excommunication, ordinations of religious ministers, administration of sacraments and other activities with attached religious significance. (Pastor Dionisio V.  Au  A u st ria v. NLRC, NL RC, G.R. G.R. No. No . 124382, Au g. 16, 16, 1999, 1st Div. [Ka [ Ka pu na n]) n] ) Iglesia Iglesia N i Cristo v. Court o f Appeals Under the non-establishment clause of freedom of religion, when it comes to religious differences, differences, the State enjoys no banquet of options - neutrality alone is its fixed fixed and immovable immovabl e stance. It is not its task to defend one religion again st an attack by anothe r religion. religion. After all, all, the remedy against bad theology is better theology. Let them duel in the market place of ideas. ideas. The marketplace of ideas demands that that speech should be met by more speech, for it is the spark of opposite speech, the heat of colliding ideas, that can fan the embers of truth. James M. Imbong, et al. v. Hon. Paquito N. Ochoa, Jr., et at., GR No. 204819, April 8, 2014, 2014, En Ba nc (Mendoza) Wherefore, THE PETITIONS ARE partially granted. Accordingly, According ly, the Court declares R.A. No. 10354 as NOT UNCONSTITUTIONAL, except  except  with respect to the following provisions which are declared UNCONSTITUTIONAL:  Address: U nit 2 , 4th Floor, Espaffa Espaffa Place Place Building, 1139 Adelina St reet co rner Espana Espana Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.villasislawcenter.com  / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com villasis lawcen terOgm ail.com / mvplawoffice(5> mvplawoffice(5>gmail.com gmail.com Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

1)

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

correspondin g provision in the RH-IRR, 2) Section 23(a)(1) and the corresponding

partjg partjg Section 5.24 thereof, insofar as they punish any healthcare service proyjter' fails or refuses to disseminate information regarding programs and^sfecvre^dr reproductive health regardless of his or her religious beliefs;

3) Section 23(a)(2)(i) and the corresponding provision in the RH-lRr^nsofa?^*hey allow a married individual, not in an emergency or lifeJraatefHng csree, as define defined d under Repu Republi blic c Act Act No. No. 834 8344, 4, to to underg undergo o rep ro< ^.c ti^n S w W oc ed ure s without the con sent of the spouse; 4) Section 23(a)(2)(ii) and the corresponding p ro v is o limit the requirement of parental parental consent only to sle

I^R insofar as they al procedures; procedures;

RH-IRR, particularly 5) Section 23(a)(3) 23(a)(3) and the correspondingdSrovis] correspondingdSrovis] Section 5.24 thereof, insofar as they pwiisirteny healthcare service provider who fails and/or refuses to refer a patient-no^fcamemergency or life-threatening case, as defined under Republic Act No. 8344,-to another health care service provider within the same facility or one^hich is conveniently accessible regardless of his or her religious beliefs; 6) Section 23(b) and and the grfrespon dlfcgpfovisio dlfcgp fovision n in the RH-IRR, particularly particularly Section 5.24 5.24 ther thereof eof,, insofa insofarr a s it e y p ir a n any public public officer officer who refuse refuses s to suppor supportt reproductive heajjb prograk^ra- shall do any act that hinders the full implementation |o f H reproductive health program, regardless of his o r her religious religiou s belie belie 7) Sectioi renderi inscie

corresponding provision in the RH-IRR regarding the o reproductive health service in so far as they affect the ector in securing Philhealth accreditation; and \a)   and Section 3.01 (j) of the RH-IRR, which added the qualifier

arily”^in defining abortifacients and contraceptives, as they are ultra vires and^^refore, null and void for contravening Section 4(a) of the RH Law and amng amng Section 12, 12, Article II of the Constitution.

Liberty of Abode and Freedom Freedom of Movement The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall shall the right to travel be impaired exce pt in the interest of national security, pu blic safety, safety, or public health, as may be provided by law. ('Sec. ('Sec. 6, 6, Ar t. III, 1987 C on stitu st itu tio n) Limitation on the Right to Travel Travel

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The right to travel is guaranteed by the Constitution. However, the exercise of o f sue right is not absolute. Section 6, Article III III of the 1987 Constitution allo ws restrictions on one’s right to travel provided that such restriction is in the interest of national security, public safety or public health as may be provided by law. This, however, should by no means be construed as limiting the Court’s inherent power of administrative supervision over lower courts. OCA Circular No. 49-2003 does not restrict but merely regulates, by pro^teing guidelines to be complied by judges and court personn personnel, el, before they can can go o r y ^ v £ travel abroad. To “restrict" is to restrain or prohibit a person from doing sofUbthiRK. sofUbthiRK. to “regulate” “reg ulate” is to govern or direct according to rule. To ensure management manag ement dock and to avoid disruption in the administration of justice, OCA Circular No. 4^Zo03^bwires a  jud ge who wishes to travel abroad to submit, together toget her with his apoUcatioryfor apoUca tioryfor iS v e of absenc absence e duly duly recomm recommend ended ed for for appro approval val by his Execu Executi tive ve J u d g e ^ Ic ^ ff llS R ^ i from from the the Statistics Division, Division, Court Court Management Office of the OCA. OCA. Th ej ^id ^c er tiflt at io n shall state the condition condition of his docket based on on his Certificate Certificate of S e rv ic ^ ^ u ff b - rUto rUtow wn immediately preceding the date of his intended travel, that he has decided araLjes^ved all cases or incidents within three (3) months from date of submission, JLrsuant to a c ti o n 15(1) 15(1) and (2), (2),  Article VIII of o f the 1987 Constitution. Thus, for traveling abroad without havi Macarine is guilty of violation of OCA Circl Services-Office of the Court Administrator   v."3l MTJ-10-1770, 18 July 2012, 2nd 2012, 2nd Div. [ B r i d t f N ^ ,

icially allowed by the Court, Judge 03. (Office of Administrative e Ignacio B. Macarine, A.M. No.

The Right of the Popple toTMprcnation on Matters of Public Concern In Valmonte v. the Court emphasized that the information sought must be “matters of public co nc er n,^ ep es s to which may be limited by law. law. Similarly, the state state policy policy of full full public dis clo su r^^ te nd s only to to “transactions “transactions involvi involving ng public interest” interest” and and may also be “subject to re a s o n a l^ conditions conditions prescri prescribed bed by law.” law.” As to the the meanings of the terms “public interest” and “public concern,” the Court, in Legaspi v. Civil Service Commission, elucidated: Commission, elucidated: In determining whether or not a particular information is of public concern, th £ ty p no rigid rigid test which can be applied. ‘Public concern’ like ‘public interest’ is a te l^ n h a t eludes exact definition. definition. Both terms embrace a broad broad spectrum spectrum of subjects ich the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public.” Considered a public concern in the above-mentioned case was the “legitimate concern of citizens to ensure that government positions requiring civil service eligibility are occupied only by persons who are eligibles.” So was the need to give the general public adequate notification of various laws that regulate and affect the actions and conduct of   Address: Un it 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet corn er Espafia Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.facebook.com/vi www.facebook.com/villasislawcenter llasislawcenter / www.remediallawdoctrines.blogspot www.remediallawdoctrines.blogspot.com .com /  / [email protected] / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

citizens, as held in Tanada. Likewise did did the “public nature nature of the loanable funds funds of th GSIS and the public office held by the alleged borrowers (members of the defunct Batasang Pambansa)” qualify the information sought in Valmonte  Valmonte  as matters of public interest and concern. In  Aquino-Sarm  Aquin o-Sarmiento iento v. Morato,  Morato,  the Court also held that official acts of public officers done in pursuit of their official functions are public in character; hence, the records pertaining to such official acts and decisions are within the ambit of the constitutional right a access to p ublic records. records. Under Republic Act No. 6713, public officials and employees are mandated to “provide information on their policies and procedures in clear and understandable language, [and] ensure openness of information, public consultations and hearing whenever appropriate x x x,” except when “otherwise provided by law or when required by the public interest.” In particular particular,, the law mandates free free public access, at reasonable hours, hours, to the annual performance reports of offices and agencies of government and government-owned or controlled corporations; and the statements of assets, liabilities and financial disclosures of all pub lic officials and employees. In general, writings coming into the hands of public officers in connection with their official functions must be accessible to the public, consistent with the policy of transparency of governmental affairs. affairs. This principle is aimed at affording affording the people an opportunity to to determine whether those to whom they have entrusted the affairs of the government are honestly, faithfully and competently performing their functions as public servants. Undeniably, the essence of democracy lies in the free-flow of thought; but thoughts and ideas must be well-informed so that the public would gain a better perspective o f vital vital issues confronting them and, thus, be able to criticize as well as participate in the affairs of the govern ment in a responsible, reasonable reasona ble and effective effectiv e manner. manner. Certainly, it is by ensuring an unfettered and uninhibited exchange of ideas among a well-informed public that a government remains responsive to the changes desired by the people. (Chavez v. PCGG, 299 SCRA 744, Dec. 9, 1998, [Panganiban]) Recognized Restrictions Restrictions to the Right o f the the People People to Information on Matters of Public Concern 1) National security matters and intelligence intelligen ce information. This jurisdiction jurisd iction recognizes the common law holding that there is a governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and t h e f national national security security matters. matters. Likewise, Likewise, information information on inter-government inter-government lhanges prior to the conclusion of treaties and executive agreements may be ubject to reasonable safeguards for the sake o f national interest; interest; Trade or industrial secrets (pursuant to the Intellectual Property Code [R.A. No. 8293, approved on June 6, 1997] and other related laws) and banking transactions (pursuant to the Secrecy of Bank Deposits Act [R.A. No. 1405, as amended]); 3) Criminal matters, such as those relating to the apprehension, the prosecution and the detention of criminals, which courts may not inquire into prior   to such arrest, detention and prosecution;  Address: Un it 2 ,4th Floor, Esparia Esparia Place Place Building, 1139 Adelina Stree t corne r Esparia Esparia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com  / www.facebook.com/vil www.facebook.com/villasislawcent lasislawcenter er / www.remediallawdoctrines. www.remediallawdoctrines.blogspot.com blogspot.com villasislawcen villasislawcenter(a>g ter(a>gmail.c mail.com om / [email protected] Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

4) Other O ther confidential confide ntial information. The Ethical Standards Standa rds Act (R.A. No. No. 671 671 enacted on February 20, 1989) further prohibits public officials and employees from using or divulging “confidential or classified information officially known to them by reason of their office and not made available to the public.” (Sec. 7[c], ibid.) Other acknowledged limitations to information access include diplomatic correspondence, closed door Cabinet meetings and executive sessions of either house of Congress, as well as the internal deliberations of the Supreme Coui (Chavez v. PCGG, 299 SCRA 744, Dec. 9, 1998, [Panganiban]) Re: Request fo r Copy of 2008 2008 Statement Statement of Assets, L iabilities iabilities an d Ne two rttyteA i and Personal Data Sheet or Curriculum Vitae of the Justices of the Supjeiae%6uf  and Officers and Employees of the Judiciary (A.M. No. 09-8-6-SC, Jun$ Banc [Mendoza])

Section 7 of Article III of the Constitution is relevant in the i of SALN and other documents o f public officials. officials.

disclosure

Emphasizing the import and meaning of the forei orl^ttutiollal provision, the Court, in the landmark case of Valmonte v. Belmonte, idfKa that the right to information goes hand in hand with the constitutional- polt I public disclosure and honesty in the public public service. service. It is meant to e nh a nc \th e ng role of the citizenry in governmental decision-making as well as in chi e in government. The importance importance corporation of this right in the of the said right was pragmatically explica Constitution is a recognition of the fundi ental free ex exchange o f inform ation in a democracy. democra cy. There can be no realistic pe per< the public of the nation’s problems nor a ai^denied access to information of general meaningful democratic decision-making if tl interest. interest. Information is needed tcrara tcr ara ble th( th( mbers of society to cope with the exigencies exigencies of the times. However, restrictions on :o certain records may be imposed by law. Thus, whi while le “pub “publi lic’ c’ like “pub “publlic in interes rest” eludes des ex exact definit nition an and ha has been said to embrace a broad spectrum of subjects which the public may want to know, either because atters naturally arouse the interest of an ordinary citizen, the Constitution itself, itself, ctien 17, Article XI, has classified the information disclosed in the SALN as a concern and interest. In other words, a “duty to disclose” sprang from the “righi Both of constitutional origin, the former is a command while the latter jg a per permii mii Hence, there is a duty on the part of members of the government to disclose&heir  s to the public in the manner provided by law. law. In the case at bar, the Court notes the valid concerns of the other magistrates ;egaT$pg the possible illicit motives of some individuals in their requests for access to such sorial information and their publication. However, custodians of public documents must nq| concern themselves with the motives, reasons and objects of the persons seeking to access to the records. records. The moral or material injury which their the ir misuse might inflict on others is the requestor’s responsibility and lookout. lookout. While public officers in the custody or control of public records have the discretion to regulate the manner in which records may be inspected, examined or copied by interested parties, such discretion does not carry with it the authority to prohibit access, access, inspection, examination, or copying of the records. records. After Afte r all, all, public office is a public trust. Address: Unit U nit 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina Adeli na Stree t corner Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.villasislawcenter.com  / www.facebook.c om/villasislawcenter / www.remediallawdoctrines.blogspot.com / www.remediallawdoctrines.blogspot.com / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

The Custodial Investigation Rights R.A. No. 7438 (An Act Defining Certain Rights of Person Arrested, Detained or Under  Custodial Investigation as well as the Duties of the Arresting, Detaining am Investigating O fficers fficers a nd Providing Penalties Penalties fo r Violations Thereo Thereof) f)

The Right to Bail In bail application where the accused is charged with a capital qf^nSe, proper for the judge to grant bail without conducting hearing, n c ify f the, f / f e ppro r  interposes no objection to such app lication? lication? Jurisprudence is replete with decisions compelling JL ^ofajuct the required hearings in bail applications, in which the accused stand capital offense, gee The absence of objection from the prosecution is never a sis fo rt h # ”gran grantt of bail bail in such cases, for the judge has no right to presume that th^crose< iws what he is doing on account of familiarity with the the case. case. “Said reasoning reasoning amount to ceding to the letermine whether the guilt of the prosecutor the duty of exercising judicial dis dge before whom the petition petition for  accused is strong. Judicial discretio n is the provisional liberty will be decided. The m :o exercise discretion has never been reposed upon the prosecutor.” Imposed in Baylon v. SisorTWas SisorTWas this  this s u d a to ry duty duty to conduct conduct a heari hearing ng despit despite e the the prosecution’s refusal refusal to add uce evidenef evidenefe ej nOpposition to the application to gran t and fix bail. (Joselito V. Narciso v. Flormarie Sta.Romana-Cruz, G.R. No. 134504, March 17, 2000, 3rd Div. [Panganiban]) Is a condition in an app lication lication fo r bail that that accused be firs t arraigned arraigned before he could be granted ba il valid? valid? In the first place x x x in cases where it is authorized, bail should be granted before arraignment, oth erwise the accused may be precluded from filing a motion to quash. quash. For if the information is quashed and the case is dismissed, there would then be no need for the aignm ent of the accused. In the second place, the trial trial court could ensure ensure the presence %r at the arraignment precisely by granting bail and ordering his presence at any e proceedings, such as arraignment. Under Rule 114, Sec. 2(b) of the the Rules on rial Procedure, one of the conditions of bail is that “the accused shall appear before the court whenever so required by the court or these Rules,” while under Rule 116, Sec. 1(b) the presence of the accused at the arraignment is required. On the other hand, to condition the grant of bail to an accused on his arraignment would be to place him in a position where he has to choose between (1) filing a motion to quash and thus delay his release on bail because until his motion to quash can be resolved, his arraignment cannot be held, and (2) foregoing the filing of a motion to quash so that he

* 

 Address: U nit 2 , 4th Floor, Esparia Esparia Place Place Building, 1139 Adelina St reet co rner Espana Espana Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.villasislawcenter.com  / www.facebook.com/villasisla www.facebook.com/villasislawcenter/www.remedialla wcenter/www.remediallawdoctrines.bl wdoctrines.blogspot.com ogspot.com / villasislawcenterOgmail.com / mvplawoffice mvplawoffice(5)gma (5)gmail.com il.com Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

can be arraigned at once and thereafter be released released on bail. These scenarios certai certain! n! undermine the accused’s constitutional right not to be put on trial except upon valid complaint or information sufficient to charge him with a crime and his right to bail. (Lavides v. CA, 324 SCRA 321, Feb. 1, 2000, 2nd Div. [Mendoza]) Government o f Hongkon g Sp ecial Adm inistrative Region v. Judge Olalia Olalia

The decision of the SC in Government of the USA v. Judge Purganan  whi that that “no bail bail rul rule e appl applies ies in extr extrad adit ition ion since since bail bail is is avai availab lable le only only to one one who who ha hai»-— i»-— v and detaine detained d for violation violation of Philipp Philippine ine crimina criminall laws” was re-examined re-examined an < ^a ra j£ re - ^ examination, examinati on, the rule now no w is that an ex traditee may be al lowed to post Jdcfll fll during durin g the pendency of an an extradition extradition proceeding. However, for him to be allowed tw o s t bail, still still he must prove that (1) once granted bail he will not be a flight risk or a danoertothe community; and (2) that that there exists specia special, l, humanitar humanitarian ian and compelling compelling c irc u g fs ta ^f ll that will justify the grant of bail to him, by a clear and convincing evidence. The reason why the Purganan ruling  was wa s re-exa re-exanrfT nrfTneV neV is Because of the modern trend in public international law where an individual persons no longer considered a mere object of international law but rather as a subject tfjgfeof, a^Uh&^rimacy given to human rights, among which is the right to liberty. Juan Ponce Enrile v. Sandiganbayan (3rd Di Banc (Bersamin)

 A close reading of the ruli Ponce Enrile to post bail althoug because of the Olalia ruling.

213847, August 18, 2015, En

C iff this case allowing former Senator Juan 'ged of plunder, a non-bailable offense, was

In this case, for r 'SSBBTBI^n SSBBT not to be a flight risk o r a dan ger to the C m BI^nrile *rile ' was W shown   community (his volyotaf  Mrra^je? to the authorities and his record of respect for court processes processes in in e a rj je rcase^^ a n d that there exist exist special special,, humanitarian humanitarian and and compel compelling ling circum circumst stance ances s ( h i^ tf ^ ^ e c r a g e , fragil fragile e state state of healt health h and and medica medicall predicame predicament nt that will will require require the s ^ | r a s omo ptors of his choic choice) e) that will justify the grant grant of bail bail to him. him. After all, all, the main purpos3Rl||pHis to assure the presence of an accused during the trial of the case as re a re d by tneco urt. Thus, Thus, the the Court held: held: Nonetheless, in now granting Enrile’s petition for certiorari,  the Court is by the earlier mentioned principal purpose of bail, which is to guarantee the pearance of the accused at the trial, or whenever wheneve r so required required by the court. court. The Court is further mindful of the Philippine’s responsibility in the international community arising from the national commitment under the Universal Declaration of  Human Rights x x x. “This national commitment to uphold the fundamental human rights as well as value the worth and dignity of every person has authorized the grant of bail not only to those charged in criminal proceedings but also to extraditees upon a clear and convincing showing: (1) that the detainee will not be a flight risk or a danger to the

* 

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community; and circumstances.

(2)

that

there

exist

special,

humanitarian

and

compellin

“In our view, his social and political standing and his having immediately surrendered to the authorities upon his having been charged in court indicate that the risk of his flight fligh t or escape from this jurisd iction is highly unlikely. unlikely. His personal: disposition from the onset of his indictment for plunder, formal or otherwise, hs& demonstrated his utter respect for the legal processes of this country. country. We also do" not ignore that at an earlier time many years ago when he had been charged with rebellion with murder and multiple frustrated murder, he already evinced a similar personal disposition of respect for the legal processes, and was granted bail during the pendency of his trial because he was was not seen as a flight risk. With his solid reputation in both his public and his private lives, his long years of public service, and history’s judgm ent of him being at stake, he should be granted bail. “The currently fragile state of Enrile’s health presents another compelling  justification  justifi cation for his admission admis sion to bail x x x. “X x x “Bail for the provisional liberty to the accused, regardless of the crime charged,  charged,  should be allowed independently independently o f the merits o f the charge, charge,  provided his continued incarceration is clearly shown to be injurious to his health or to endanger his life. life. Indeed, denying him bail despite desp ite imperiling hid health and and life would not serve the true objective of preventive incarceration during the trial. “Granting bail to to Enrile on the foregoing reasons is not unprecedented. unprecedented. X x x “It is relevant to observe that granting provisional liberty to Enrile will then enable him to have his medical condition be properly addressed and better attended to by competent physicians in the hospitals of his choice. choice. This will not only aid in his adequate preparation of his defense but, more importantly,  importantly,  will guarantee his appearance in court for the trial. “bn the other hand, to mark time in order to wait for the trial to finish before a meaningful consideration of the application for bail can be had is to defeat the obje kj>« of bail, bail, which is to entitle the accused to provisional liberty pending the trial. trial. T lW e may be circumstances decisive of the issue of bail x x x that the courts can can pready consider in resolving the application for bail without awaiting the trial to finish. The Court thus balances the scales of justice by protecting the interest of the People through ensuring his personal appearance at the trial, and at the same time realizing for him the guarantees of due process as well as to be presumed innocent until proven guilty.”

The Right against S elf-incrimination elf-incrimination  Address: U nit 2 , 4th Floor, Esparia Esparia Place Place Building, 1139 Adelina St reet co rner Espana Espana Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.villasislawcenter.com  / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com villasislawcenter(a> villasislawcenter(a>gmail.com gmail.com / mvola woff iceOgm ail.com Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

It bears emphasis, however, that under the above-quoted provisions, what is actual proscribed is the use of physical or moral compulsion to extort communication from the accused-appellant and not the inclusion of his body in evidence when it may be material. For instance, substance emitted from the body of the accused may be received as evidence in prosecution prosecution for acts of lasciviousness (US v. v. Tan Teng, 23 Phil. 145 [1912]) [191 2]) and  and morphine forced out of the mouth of the accused may also be used as evidence against him (US v. Ong Siu Hong, 36 Phil. 735 [1917]). Consequently, Consequently, although although accused-appellant insists hair samples were forcibly taken from him and submitted to the NBI NBI for forensic examination, the hair samples may be admitted in evidence against him, for what is proscribed is the use of testimonial compulsion or any evidence communicative in nature acquired from the accused under duress. (People v. Rondero, 320 SCRA 383, 399-401, Dec. 9, 1999, En Banc [Pe r Curiam]) Curiam]) Does the right against self-incrimination self-incrimination extend to administrative proceedings? In Pascual v. Board o f Medical Examiners (28 SCRA 344 [1969]),  [1969]),  we held that the right against self-incrimination under Section 17, Article III of the 1987 Constitution which is ordinarily available only in criminal prosecutions, extends to administrative proceedings which possess a criminal or penal aspect, such as an administrative investigation of a licensed physician who is charged with immorality, which could result in his loss of the privilege to practice medicine if found guilty. The Court, citing the earlier case of Cabal v. Kapunan (6 SCRA 1059 [1962]),  [1962]),  pointed out that the revocation of one’s license as a medical medical practitioner, practitioner, is an even g reater deprivation than forfeiture o f property. property. (Secretary (Secretary o f  Ju stic e v. Lan tion, 322 SCRA SCRA 160, 160, 184, 184, Jan. 18, 2000, 2000, En Banc [M elo]) May the Right against Self-incri Self-incrimination mination be v alidly invoke invoke d during Inquiries Inquiries in A id o f  Legislation? [I]t has been held that “a congressional committee’s right to inquire is ‘subject to all relevant limitations placed by the Constitution on governmental action,’ including ‘the relevant limitations of the Bill of Rights’ .” One of the basic rights guaranteed by the Constitution to an individual is the right against self-incrimination. self-incrimination. (Bengzon, Jr. v. Senate Blue Ribbon Committee, 203 SCRA 767, Nbv. 20, 1991, En Banc [Padilla]) at are are the two types o f imm unity statutes? statutes? Which Which has broader scope o f protection? protection? r immunity statutes are of American Americ an origin. In the United States, there are two f statutory immunity granted granted to a witness. They are the the transactional immunity and th#u se-an d-deriv ative-u se immunity. immunity. Transactional immunity is broader in the scope of its its protection. By its grant, a witness witnes s can no longer be prosecuted for any offense whatsoeve r arising out of the the act or transaction. transaction. In contrast, contrast, by the grant of use-and-derivative-use use-and-derivative-use immunity, a witness is only assured that his or her particular testimony and evidence derived from it will not be used against him or her in a subsequent prosecution. (Mapa, Jr. v. Sandiga nbay an, 231 SCRA 783, 783, 797-798 797-798,, Ap ril 26, 26, 1994 1994,, En Ban c [Pun o])  Address: Un it 2 ,4th Floor, Espaff Espaffa a Place Place Building, 1139 Adelin a Stree t corne r Espar Esparfa fa Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.facebook.com/villasislawcenter/www.remediallawdoctrines.blogspot.com  / villasislawcenterOgmail. villasislawcenterOgmail.com com / [email protected] Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

Is the grant o f imm unity to an accused willing willing to testify for the government a specia specia privilege and, therefor therefore, e, m ust be strictly con strued aga inst the the accused? [W]e reject respondent court’s ruling that the grant of section 5 immunity must be strictly construed construed against the petitioners. It simplistically characterized the the grant as a special privilege, as if it was gifted by the government, ex gratia. In taking this this posture, posture, it misrea ds the raison d’ etre  etre  and the long pedigree of the right against self-incrimination v i s - a w ^ immunity statutes. statutes. N The days of inquisition brought about the most despicable abuses against human rights. rights. Not the least of these these abuses is the expert use of coerced coerced confessions to send to the guillotine even the guiltless. guiltless. To guard against the the recurrence of this totalitarian totalitarian method, the right against self-incrimination was ensconced in the fundamental laws of all civilized countries. countries. Over the the years, however, however, came the need to assist government in in its task task of containing crime for peace and order is a necessary matrix of public welfare. To accommodate the need, need, the right against self-incrimination was stripped of its absoluteness. Immunity statutes in varying shapes were enacted which would allow government to compel a witness witness to testify despite his plea of the right against self-incrimination. self-incrimination. To insulate these statutes from the virus of unconstitutionality, a witness is given what has come to be known as transactional transactional or a use-derivative-use immunity x x x. x. Quite clearly, clearly, these these immunity statutes are are not a bonanza bonanza from government. Those given the privilege of immunity paid paid a high price for it - the surrender of their precious right right to be silent. Our hierarchy of values demands that the right against self-incrimination and the right to be silent should be accorded greater respect respect and protection. protection. Laws that tend to erode the force of these preeminent rights must n ecessarily be given a liberal interpretation interpretation in favor of the individual. The government has a right to solve crimes but it must do it, rightly. (Mapa, Jr. v. Sandiga nbay an, 231 SCRA 783, 783, 805-806 805-806,, Ap ril 26, 26, 1994 1994,, En Ban c [Puno ])

The Right against Double Jeopardy The The Two Two (2) (2) Kinds o f Double Jeopardy: Our Bill of Rights Rights deals with two (2) kinds kinds of double jeopardy. The first sentence of Clause 20, Section 1(now Sec. 21), Article III of the Constitution ordains that “no person shall be twice p ut in jeopard y of punishment for the same offense.” The second sentence of Slid clause clau se provides provide s that “if an act is pu nishable nishab le by a law and an o rdinance, conviction convicti on or M a i tindfer tindfer either shall constitute a bar to another prosecution for the same act.” act.” Thus, nljy sentence prohibits double jeopardy o f punishment for the same offense whereas, the neT contemplates double jeopar dy of p unishment for the same act. Under the first ence, one may be twice put in jeopardy of punishment of the same act, provided that he is charged with different offenses, or the offense charged in one case is not included in, or does not include, the crime charged in the other case. case. The second sentence applies, even even if the offense charged are not the same, owing to the fact that one constitutes a violation o f an ordinance and the other a violation of statute. statute. If the two charges are based on one and the same act, conviction or acquittal under either the law or the ordinance shall bar a prosecution under the other. Incidentally, Incidentally, such conviction or acquittal acquittal is not indispensable to  Address: Un it 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet corn er Espaiia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.facebook.com/vi www.facebook.com/villasislawcenter llasislawcenter / www.remediallawdoctrines.blogspot www.remediallawdoctrines.blogspot.com .com /  / [email protected] / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

sustain the plea of double jeopardy jeopar dy of punishment or the same offense. offense. So long as jeopa jeo parr has been attached under one of the informations charging said offense, the defense may be availed of in the other case involving the same offense, even if there has been neither conviction nor acquittal in eithe r case. Elsewhere stated, where the offense charged are penalized either by differences sections of the same statute or by different statutes, the important inquiry relates to JnL  j identit identity y of offenses offenses charged. charged. The consti constituti tutional onal protecti protection on against against double jeopardy i s \ | available only where an identity is shown to exist between the earlier and the sub&^qu^pt offenses charged. The question of identity or lack of identity identity of offenses offenses is addressed, addressed, by •? examining the essential elements of each of the two offenses charged, as suc£tei|ments a|ec set out in the respective legislative definitions of the offenses involved. (People v/tyiijada, .. 259 SCRA 191, July 24, 1996) To substantiate a claim o f double jeopardy, the following ratist be prbyen: prbyen: (1) A first jeopardy must have attached attached prior to the sdcohd; sdcohd; ( i^ tti e fir s t jeopardy must must have been validly terminated; (3) the second jeopardy mus| be for the same offense, or the second offense includes or is necessarily included; in tlrfe-offense charged in the first information, or is an attempt to commit the same oj;,is a'frustration thereof. Legal jeopardy attaches only: (1) up6ii-%vi3lid indictment; (b) before a competent court; (c) after arraignment; arrai gnment; (d) when a vaHd vaHd plea tii%. tii% . been entered; and (e) the case cas e was dismissed or otherwise terminated wi thout tfietfie-'ie 'iecjj cjjr.e r.ess ss consent of the accused. (Cuison v. CA, 289 SCRA 159, April 15, 1998^Pangahteanff 

The Right against Ex Post Facto Law and Bill of Attainder What is a bill o f attainde attainde r? Is P.Q P.Q, 1866 1866 a bill of attainder? [T]he Court, in Peqp/e'V. Ferrer,  defined a bill of attainder as a legislative act which inflicts punishment on individuals or members of a particular group without a judicial trial. Essential to a bill of attainder are a specification of certain individuals or a group of individuals, the imposition of a punishment, penal or otherwise, and the lack of judicial trial. This last element, the total lack of court intervention in the finding of guilt and the  jfeter  jfe termi mina natio tion n of the actual penalty to be imposed, is the most mos t essential. P.D. No. 1866 does n o k o o s s & ^h e elements elements of a bill bill of atta attainde inder. r. It does not seek to inflict inflict punishme punishment nt without k a jucHttaftrial. Nowhere in the measure is there a finding of guilt and an an imposition of a o^jrespo nding punishment. punishment. What the decree does is to define the offense offense and provide for th^penalty that may be imposed, specifying the qualifying circumstances that would t aggravate the offense. offense. There is no encroachment on on the power of the the court to determine determine after due hearing whether the prosecution has proved beyond reasonable doubt that the offense of illegal possession of firearms has been committed and that the qualifying circumstances attached to it has been established also beyond reasonable doubt as the Constitution and judicial precedents require. (Misolas v. Panga, 181 SCRA 648, 659-660, Jan. 30, 1990, 1990, En Banc [Cor tes])  Address: U nit 2 , 4th Floor, Esparia Esparia Place Place Building, 1139 Adelina St reet corner co rner Espana Espana Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com www.villasislawcenter.com /  / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / www.remediallawdoctrines.blogspot.com / villasislawcenterOgmail.com villasislawcenterOgmail.com / [email protected] Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

What is an ex po st facto law? Is R.A. R.A. No. No. 8249 8249 an ex post facto la w? Ex post facto  facto  law, law, generally, proh ibits retrospec tivity of penal laws. R.A. 8249 is not a penal law. law. It is a substantive substan tive law on jurisdiction jurisdi ction which is not penal in character. Penal laws are those acts of the Legislature which prohibit certain acts and establish penalties for their violations; or those that define crimes, treat of their nature, and provide for th punishment. R.A. 7975, which which amended P.D. 1606 as regards the the Sandiganbs  jurisd iction, its mode of appeal and other procedural matters, has been d e c la r e d ly 4he 4 he Court as not a penal law, but clearly a procedural statute, i.e.,  i.e.,  one one whic which h presc riljsgra ljp^* ^ procedure by which courts applying laws of all kinds can properly administei^Lstice. being a penal law, the retroactive application of R.A. 8249 cannot berehalraaaed unconstitutional. Petitioner’s and intervenors’ contention that their right to a^vo-tierad appeal which they they acqui acquired red under under R.A. R.A. 7975 7975 has has been been dilut diluted ed by by the e n a c tm e ^ ^ fj ^ .^ ^ 6 , is incor incorrec rect. t. The same conte contention ntion has alread already y been been rejected rejected by the the co w *^ ye ra £ tim e ^ considering considering that that the right to appeal is not a not  a natural right but right but statutory in nature that cam&e regulated by law. The mode of procedure provided for in the statutory right of appeal is not included in the prohibition prohibition against ex post facto facto  laws. laws. R.A. R.A. 8249 pertains pertains only^ Wfi atte rs of procedure, and being merely an amendatory statute it does not partake the nature of an ex post facto law. It does not mete out a penalty and, therefore, doe s not come within the prohibition. Moreover, the law did not not alter the rules of evidence or the the mode of trial. trial. It has been ruled that that adjective statutes may be made applicable to actions pending and unresolved at the time of their passage.  At any rate, R.A. R.A. 8249 has preserved the accus ed’s right to appeal to the Supreme Court to review questions of law. law. On the removal removal of the intermediate review of facts, the Supreme Court still has the power of review to determine if the presumption of innocence has been convincingly overcome. (Panfilo M. Lacson v. The Executive Secretary, et. al., G.R. .R. No. No. 1280 128096 96,, Jm ,20 ,^9 99 iM artin ez ])

CITIZENSHIP Is not a matter of convenience. It is a badge of identity identity that comes with with fa political right s accorded by the State to its citizens. It likewise demands fat duty to maintain allegiance to one's flag and country. (Casan Macode rv. COMELEC, et al., G.R. No. 195649, April 16, 2013, En Banc [Sereno, CJ]) ^ J u s S an an gu gu in in is is Principle on Citizenship Citizenship The Philippine law on citizenship adheres to the principle of  ju s sanguinis. Thereunder, a child follows the nationality or citizenship of the parents regardless of the place of his/her birth, as opposed to the doctrine of ju of ju s soli which soli  which determines nationality or citizenship on the basis of place of birth. (Valles v. COMELEC, 337 SCRA 543, Aug. 9, 2000, En Banc [Purisima])

* 

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Ways of acquiring C itizenship itizenship There are two ways of acquiring citizenship: (1) by birth, and (2) by naturalization. These ways of acquiring citizenship correspond to the two kinds of citizens: the natural-born citizen, and the naturalized citizen. A person who at the time of his birth birth is a citizen of_ of_ particular country, is a natural-born citizen thereof.  As defined in the Constitution, natural-born natural-bo rn citizens “are those citize Philippines from birth without having to perform any act to acquire or perfect citizenship.” On the other hand, naturalized citizens are those who have become FHipino jftizens through naturalization, generally under Commonwealth Act No. 473, othiei^S^lWtown as the Revised Naturalization Law, which repealed the former Naturalization Law (Act No. 2927), and by Republic Act No. 530. (Antonio Bengson III v. HRET, G.R. No. 142840, May 7, 2001, En Banc [Kapunan])

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

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

To deny full Filipino citizenship to all foundlings and render them stateless just because there may be a theoretical chance that one among the thousands of these foundlings might be the child of not just one, but two, foreigners is downright discriminatory, ^r a tio n a l, and unjust. unjust. It just jus t doesn’t make any sense. Given the statistical statistical certainty 99.9% tni^gny |hild born in the Philippines would be a natural-born citizen, a decision denying w o u n c m g f such status status is effectivel effectively y a denial denial of their birth birthrigh right. t. There is no no reason reason why this n ^ p m b le Court should should use an an improbable improbable hypothetic hypothetical al to sacrifice sacrifice the the fundamental fundamental politi political cal rignts of an an entire class of human beings. beings. Your Honor, constitutional interpretation interpretation and the ^ use of common sense are not separate disciplines. disciplines.  As a matter of fact, foundling found lings s are as a class, natural-born natura l-born citizens. While Whil e the 1935 Constitution’s enumeration is silent as to foundlings, there is no restrictive language which would definitely exclude foundlings either. Because of silence silence and ambiguity in the  Address: U nit 2 , 4th Floor, Espafia Espafia Place Place Building, 1139 Adeli na St reet corne co rnerr Espaiia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com www.villasislawcenter.com /  / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / www.remediallawdoctrines.blogspot.com / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

numeration with respect to foundlings, there is a need need to examine examine the intent intent of the fram framers ers.. Xxx [T|he deliberations of the 1934 Constitutional Convention show that the framers intended intended foundlings to be covered by the enumeration. X x x Though the Rafols amendment was not carried out, it was not because there any objection to the notion that persons of “unknown parentage” are not citizens bj because their number was not enough to merit specific mention. X x x In other words, the constitutional silence is fully explained in tenjjs^&linguis efficiency and and the avoidance of redundancy. The policy is clear: it is is to reodgntze reodgntze fo nd lin g s, as a class, class, as Filipinos, under Article Article IV, Section 1(3) of the 1935 ConstitutionN ConstitutionN rh is inclusive policy is carried over into the 1973 and and 1987 Constitutions. Constitutions. X x x Domestic laws on adoption also support the principlejh; These laws do not provide that adoption confers citizenshjpupbn adoptee must be a Filipino in the first place to be adopted. adopted. Foundlings are likewise citizens und er interg interg an international law can become part of the spj or incorporation. incorporation. X x x

dKoojS are Filipinos, adoptee. Rather, the

I law. Under the 1987 Constitution, Constitution , estic law either by transformation

Declaration of Human Rights), UNCRC The common thread of the UDHR PR (International Covenant on Civil and (UN Convention on the Rights of tl Political Rights) is to obligate the grant nationality from birth and ensure that no child is stateless. This grant gran t of na na1 must be at the time of birth, and it cannot be accomplished by the applic of our present naturalization laws, Commonwealth Act No. 473, as amended, anq 39, both of which require the applicant to be at least eighteen (18); The principal generally acc Convention on\ founc

in two conventions, while yet ungratified by the Philippines, are s of international law. The first is Article 14 of the 1930 Hague uestions Relating to the Conflict of Nationality Laws under which a to have the “ nationality of the country of birth,” x x x.

is, until the contrary is proved, presumed to have been born on the :Ke :Ke State in whic h it was found. The second is the principle that a foundling is presumed born of citizens of the ' where whe re he is found, contained contain ed in Article 2 of the 1961 1961 United Nations Na tions Convention Conven tion on the Reduction Reduction of o f Statelessness x x x. x. Xx x In sum, all of the international law conventions and instruments on the matter of nationality of foundlings were designed to address the plight of a defenseless class which  Address: U nit 2 , 4th Floor, Espafia Espafia Place Place Building, 1139 Ade lina St reet corne co rnerr Espana Espana Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com [email protected] / mvplawoffice(5>em mvplawoffice(5>email.com ail.com Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

suffers from from a misfortune not of their making. We cannot be restrictive restrictive as to their applicatio applicatio if we are a country which calls itself civilized civilized and a me mber of the community of nations. nations. X x x (Mary Grace Natividad S. Poe-Llamanzares v. COMELEC, G R. No. 221697, March 8, 2016, 2016, En Ba nc [Perez])

Loss or Re acquisition acquisition o f Philippine Citizenship Philippine citizenship may be lost or reacquired in the manner providecfj^la' (Section 3, Article IV, 1987 Constitution)

There are three (3) ways by which Philippine citizenship may be rea (1) by naturalization; (2) by repatriation; and (3) by direct act of Congress. The Effect o f Marriage Marriage Citizens of the Philippines who marry aliens^|R9|k|!Sl&iri\thfeir citizenship, unless by their act or omission they are deemed, unjde unjderr the lav^tQ ha ve renounced it. 0 (Section 4, Article IV, 1987 Constitution) Dual Citizenship and Dual Allegiance Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law. (Section 5, Artic le IV, 1987 1987 Cons titution) This provision is not self-executing. The word employed by Section 5 is “shall.” The law referred to is a future law. Dual Citizenship distingu ished from Dual Allegi Allegiance. ance.

Dual citizenship arises when, as a result of the concurrent application of the different laws of two or more states states,^ ,^ a person is simultaneously considered a national national by the said states. For instance, instance, such a situation situation may arise when a person whose parents are citizens of a state which adheres to the principle of ju s sanguinis sangu inis is born in a state which follows the doctrine of ju s soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen o f both states. states. Dual allegiance, on the other hand, refers to a situation in which a person taneously owes, by some positive act, act, loyalty to two or more states. states. While dual is involuntary, dual allegiance is the result of an individual’s volition. (Mercado v. no, 307 30 7 SCRA 630, 630, M ay 26, 26, 1999, 1999, En Banc [Mendoza]) What is the main con cern o f Section 5, Ar ticle IV, IV, 1987 Con stitution, on c itizensh ip? Consequently, are persons with mere dual citizenship disqualified to run for elective loca l pos itions itions und er Section Section 40(d) 40(d) o f the the Loca l Government Code?

In including Section 5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual citizens per se but with naturalized citizens who maintain their   Address: U nit 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Ade lina St reet corne co rnerr Espafia Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.villasislawcenter.com  / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / www.remediallawdoctrines.blogspot.com / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

allegiance to their countries of origin even after their naturalization. Hence, Hence, the phrase “c citizenship” in R.A. No. 7160, Section 40(d) (Local Government Code) must be understood as referring referring to “dual allegiance.” Consequently, Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those with dual allegiance, allegiance, who must be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificate of candidacy, they elec Philippine citizenship to terminate their status as persons with dual citizenship consider^ that their condition is the unavoidable conseque nce of conflicting laws of different statf. By electing Philippine citizenship, such candidates at the same tic allegiance to the other country of which they are also citizens and thereby^ status as dual dual citizens. citizens. It may be that, from from the point of view of the foreigfosta teagg j of its laws laws,, such such an an individ individual ual has has not not effectively effectively renounced renounced his his foreign c iti ^ g s h ip \T h a t ir o f no moment. (Mer cado v. Manzan o, G.R. G.R. No. 135083, 135083, 307 26, 26, 1999 [Mendoza]) Instances Instances when a citi citizen zen o f the the Philippi Philippines nes m ay po ss e^ s^ ba l the citizenship clause (Article IV) of the Constitution.

ship ship con sidering

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

Repub lic lic A ct No. 9225 9225 (The (The Citizen Citizen ship R etention etention and R eacqu isition isition A ct o f 200 2003) 3) Sometimes, this law has been referred to as the dual citizenship law. The law applies to: (1) former natural-born citizens of the Philippines who have already become citizens of a foreign country through naturalization; and (2) natural-born citizens of the Philippines who may wish to become a citizen of a foreign country through naturalization naturalization after the effectivity of this Act. In both cases, they are given the opportunity to either reacquire (reacquisition) or T i^ m ^ (retention) (retention) their Philippine Philippine citizenship. citizenship. Thus, in effect, effect, they will possess dual

C&fan Macode Maquiling v. COMELEC, etal., G.R. No. 195649, April 16, 2013, En Banc (Sereno, CJ) When after renouncing his American citizenship upon his filing of certificate of candidacy for mayor, it was established that he travelled several times to the US using his  Americ an passport, that was an effective effectiv e recantation of his renunciation renunci ation of his foreign citizenship. citizenship. Thus, he reverted to his prior status as a person having dual dual citizenship and,

* 

 Address: Un it 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet corn er Espafia Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.facebook.com/vi www.facebook.com/villasislawcenter llasislawcenter / www.remediallawdoctrines.blogspot www.remediallawdoctrines.blogspot.com .com /  / [email protected] / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

therefore, disqualified to run for mayor pursuant to Sec. 40 (d) of the Local Governmen Code (R.A. No. 7061). Held: Section 5(2) of The Citizenship Retention and Re-acquisition Act of 2003 provides: Those who retain or re-acquire Philippine citizenship under this AgJ^h enjoy full civil and political rights and be subject to all attendant liab responsibilities under existing laws of the Philippines and the following (2) Those seeking elective public office in the Philippine qualificatio qualifications ns for holding holding such public public office office as require required d by ih eC S ^s titu ti^ K and existing laws and, at the time of the filing of the certific ce rtificate ate make a personal and sworn renunciation of any and all foreign cj^zegship agfore any public officer authorized to administer administe r an an oath. X x x Rommel Arnado took all the necessary steps to q u a fy to run HP a public office. office. He took the Oath Oath o f Allegiance Allegiance and and renounced renounced his foreityrfcitiz enh top^ fliere is no question question that after performing these twin requiremen ts required undek Section 5(2) of R.A. R.A. Act No. 9225 or the Citizenship Retention and Re-acquisition_/kCt^^|gQ3, he became eligible to run for public office. Indeed, Arnado took the Oath of the Oath of Allegiance to the Repi time, however, he likewise posse; a dual citizen.  Afte r reacquiritj citizenship by executing^. Afl eligibility to run foroubtic ofl

iot iot just only once but twice. By taking taking icquired his Philippine Philipp ine citizenship. At the citizenship. Arnado had therefore become become

pine citizenship, Arnado renounced his American of Renunciation, thus completing the requirements for 

By refa|u
renunciation of the foreign citizenship and a full divestment of all civil and political righl granted by the foreign country which granted the citizenship. citizenship. Xxx

 Arnado’s  Arna do’s category categ ory of dual c itiz it iz e n s h ^^ ^^ R T b y which foreig n citizenship citizen ship is acquired through a positive act of applying for natura lkation. This is distinct from those considered considered dual citizens by virtue of birth, who are not required by law to take the oath of renunciation as the mere filing o f the certificate certificate of candidacy already caries with it an implied renunciation renunciation of foreign citizenship. Dual Dual citizens by naturalization, on the other hand, are required to take take not only the Oath of Allegiance to the Republic of the Philippines but also to personally renounce foreign citizenship in orde r to qualify as a candidate for public office. office. By the time he filed his certificate of candidacy Arnado was a dual citizen enjoying the rights and privileges of Filipino and American citizenships. citizenships. He was qualified to vote, but by express disqualification under Section 40(d) of the Local Government Code, he was not

XV x

M h e citizenship requirement for elective public office is a continuing one. It must be possessed not just at the time of the renunciation of the foreign citizenship but continuously.  Any act which violates viola tes the oath o f renunciation opens open s the citizenship citizens hip issue to attack. We agree with the pronouncement of the COMELEC First Division that “Arnado’s act of continuously using his US passport effectively effectively negated his Affidavit of Renunciation.” Renunciation.” This does not mean that he failed to comply with the twin requirements under R.A. No. 9225, for he in in fac t did. It was after  complying   complying with the requirements that he performed positive acts  Address: Un it 2 ,4th Floor, Espart Esparto o Place Place Building, 1139 Adelin a Stree t corne r Espan Espana a Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/vi www.facebook.com/villasislawcenter llasislawcenter / www.remediallawdoctrines.blogspot www.remediallawdoctrines.blogspot.com .com /  / [email protected] / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

which effectively disqualified him from running for an elective public office pursuant Section 40(d) of the Local Government Code of 1991. 1991. Xxx Besides, Besides, Arnado’s Arnado’s subsequent subsequent use use of his Philippine Philippine passport passport does not correct correct t h e d ^ fact that after he renounced his foreign citizenship and prior to filing his certificate^L candid candidacy acy,, he used used his his US passpo passport rt.. In the same way that the use use of his foreign foreign p a d lp o r t ^ ^ ^ ^ ^ does not undo undo his Oath Oath of Renunciatio Renunciation, n, his subsequent subsequent use of his his Philippine Philippine pa ss m id fce s . not undo his earlier use o f his US passport. Xxx We therefore hold that Arnado, by using his US passpj  American  Americ an citizenshi c itizenship, p, has recanted rec anted the same Oath o f Renunciati the Local Govern ment Code applies to his situation. He is disfluame dis the public office but even from becoming a cand idate in the jd a ^ 2 C m

ncing his ection 40(d) of from holding

Naturalization Naturalization Naturalization sig nifies the a ct of form a foreigner into the political body fts V a ctt cttiizen. i of a nation by clothing him or her with the pri (Edison So v. v. Repub lic lic o f  the Philippines, G.R. No. 170603, Januaaz 29. 2i Div., [Callejo, Sr.]) Ways Ways by which an Alien m ay become a

y Naturalization Naturalization

Under Under current current and existing existing la w ^ U ie ^ a re three ways by which an alien alien may becom become e a citizen by naturalization:.(a) administrative naturalization pursuant to R.A. No. 9139; (b)  judic ial naturalization naturali zation .tfu .tfurS rSE E C.A. 473, as as am amended; an and (c (c) le legislative naturaliza naturalization tion in the j p r r t ^ f a tew^'nacted by Congress Congress bestowing bestowing Philippine Philippine citizenship citizenship to an alien. (Edison JJo (Edison JJo v. Repttbfic o f the P hilipp ines , G.R. No. 170603, 170603, Ja nu ary 29, 2007 2007,, 3rd 3rd Div., [C alle jo,  jo,   SfcjfR e pu pu bl blic A c t Nc Nc

f ( Pr Pr ov ov id id in in g f o r A d m in in is is tr tr at ativ e N a tu tu ra ra liliz at atio n o f an an A lilie n) n)

R.A. R.A. N d y rl3 9 was enacted enacted as a remedial remedial measure intended intended to to make the process process of iguiring iguiring Philippine citizenship less less tedious, tedious, less technical and more encouraging. It resses the concerns of degree holders who, by reason of lack of citizenship nt, nt, cann ot practice their profession, thus promoting “ brain gain” for the Philippines.  A ll A lie n s A v a il o f the B en ef its o f A d m in is tra tr a tiv e Na tura tu ra lizat liz atio ion n u n d e r R.A. No. 9139? R.A. No. 9139 may be availed of only by native-born aliens who lived here in the Philippines all their lives, who never saw any other country and all along thought that they were Filipinos; who have demonstrated love and loyalty to the Philippines and affinity to the customs and traditions traditions of the Filipino people. To reiterate, the the intention of the legislature in  Address: Un it 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet corn er Espaiia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/vi www.facebook.com/villasislawcenter llasislawcenter / www.remediallawdoctrines.blogspot www.remediallawdoctrines.blogspot.com .com /  / [email protected] / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

i

enacting R.A. No. 9139 was to make the process of acquiring Philippine citizenship tedious, less technical and more encouraging which is administrative rather than judicial in nature. nature. What the legislature had in mind was merely to prescribe another  mode  mode of acquiring Philippine citizenship which may be availed of by native born aliens. aliens. The only implication implication is is that, a native born alien has the choice to apply for judicial or administrative naturalization, subject to the prescribed qualifications and disqualifications. (Edison So v. v. Republic o fth Philipp ines , G.R. G.R. No. No. 170603 170603,, Ja nu ary 29, 2007, 2007, 3rd  3rd Div., [Callejo, Sr.]

 ADMINISTRATIVE  ADMINISTRATIVE LAW The Doctrine Doctrine o f Primary Primary Juris dic tion or P rior Res Resoi oi The Doctrine of Exhaustion of Administrative Under the doctrine of exhaustion of administrative a party is allowed to seek the intervention intervention o f the court, court, one should ha; ha; rall the means of ITnistrative machinery administrative processes available. If resort to a remedy can still be made by giving the administrative officer^tfonce opportunity to decide on a matter that comes within his jurisdiction, then stfeh rem 3yshould be exhausted first before the court’s judicial power can be sougj isons of comity and convenience, courts of justice shy away from dispute until administrative redress has been completed and complied with, so as to^jye the inistrative agency concerned every opportunity to correct its error and dispose p. X x x. (Satu min o C. C. Ocampo, e t al. al. v. Rear Admiral Ernesto C. Em !R. No. 225973, November 8, 2016, En Banc [Peralta]) [Peralta])

W OF PUBLIC OFFICERS Public Office is Concif t e ^ a r p t a November 10

rales v. Court of Appeals (6th Div.), G.R. Nos. 217126-27, -Bernabe)

Nature Nature o f Appo intmen t as Discretionary Discretionary Flares v. Drilon

wers o f the Ombudsman Co nchita Carpio -Moraie s v. C ou rt o f Ap pea ls (6th (6th Div.), Div.), November 10, 2015 (Perias-Bernabe)

G.R. G.R. Nos. 217126217126-27, 27,

The Ombudsman has Administrative Disciplinary Authority over all Public Officers and Employees Employees  Address: U nit 2 , 4th Floor, Espafia Place Place Building, 1139 Adelina St reet co rner Espa Esparfa rfa Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.villasislawcenter.com  / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com villasislawcenter(a> villasislawcenter(a>gmail.com gmail.com / mvplawoffice(5)gmail.com Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

The Office of the Ombudsman shall have disciplinary authority over a elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary. (Sec. 21, R.A. No. 6770) In the exercise of its  Ad  A d m in is tra tr a tiv e Ju ris d ic tio n , the Om bu dsma ds ma n m ay Preventive Preventive Suspension The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent’s continued stay in office may prejudice the case filed ag ainst him. him. The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six (6) month, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition petition of the respondent, in whjd3£as w h jd i^ a s e the period of such delay shall not be counted in computing the perfdd^S^is^Msion herein provided. (Sec. 24, 4^us^ Msi R.A. No. 6770)

W

byCany*Ctourt No Writ of Injunction shall be issued byCany*Ct o urt to delay an Investigation being conducted by the Ombudsman Ombudsman No writ of injunction shall be issued by any court to delay an investigation being conducted by the Ombudsman under this Act, unless there is a prima facie evidence that the subject matter of the investigation is outside the jurisdiction of the Office of the Ombudsman. No court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman, except the Supreme Court, on pure question of law. (Sec. 14, R.A. No. 6770) ^aveat: e second paragraph of Section 14 of Republic Act No. 6770 is declared STITUTIONAL, while the policy against the issuance of provisional injunctive writs by^ourts other than the Supreme Court to enjoin an investigation conducted by the Office of the Ombudsman under the first paragraph of the said provision is declared INEFFECTIVE until the Court adopts the same as part of the rules of procedure through an administrative circular duly issued therefor. (Conchita Carpio Morales Morales v. Court o f Appeals [Sixth Division], GR Nos. 217126-27, November 10, 2015, En Banc [Perlas-Bernabe]). Effectivity Effectivity and Finality o f Decisions Decisions o f Ombudsman Ombudsman  Address: Un it 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet corn er Espaiia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.face book.co m/villasisla wcente r / www.remediallawdoctrines.blogSDQt.com www.remediallawdoctrines.blogSDQt.com /  / [email protected] / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

 All provisionary provis ionary orders orde rs of the Office of the Ombudsman Ombudsma n are immediately immedi ately effective and executory. executory. Xxx In all administrative disciplinary cases, orders, directives, or decisions of Office of the Ombudsman ma y be appealed to the Supreme Court by filing a petition petition for certiorari within ten ( 10) days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule Rule 45 of the Rule Rules s of Court Court.. (This pro visio n was declared un con stitutio nal by the Supreme Court in Fabian v. Desierto, 356 Phil. 787 [1998], as [1998], as it contravened Section 30, Article VI o f the Co nstitution . In effect the pro visio n increased the appellate jurisdiction of the Supreme Court without its consent under that provision. Henceforth, decisions of the Ombudsman in administrative cases should be filed filed with the Court of Appeals Appeals under th rtru ling .) The Law on Ne po tism

\V

Vi

Under the definition of nepotism, one is guilty of nepotisrfTif an appointment is issued in favor of a relative within the third civil degree of consanguinity or affinity of any of the following: . a) b) c) d)

appointing appoin ting authority; \ recommending recommen ding authority*. chief of the bureau bureau or or o fr a ; and . pers person on exer exerci cisi sing ng im m e di ^^ up i

isio ision n over over the the appo appoin inte tee. e.

Clearly, there are four situation s covered. In the last two mentione d situations, it is immaterial immaterial who the appointing or recommending authority is. is. To constitute a violation of the law, law, it suffices that an appointment is extended or issued in favor o f a relative within the third civil degree of consanguinity or affinity of the chief of the bureau or office, or the person exercising immediate supervision over the appointee. (CSC v. Pedro O. Dacoycoy, G.R. No. 135805, 135805, Ap ril 29, 29, 1999 1999,, En B anc [Pa rdo]) What are the the exemptions from the operation o f the rules on ne potism? Ttye following are exempted from the operation of the rules on nepotism: (a) persons «dMn a confidential capacity, (b) teachers, (c) physicians, and (d) members of the mei mei orces o f the Philippines. Philippines. The rules on nepotism shall likewise not be applicable to the case of a member of any family who, after his or her appointment to any position in an office or bureau, contracts marriage with someone in the same office or bureau, in which event the employment or retention therein of both husband and wife may be allowed. (Sec. 59, Chap. 7, Subtitle A, Title I, Bk. V, E.O. No. 292)

*

 Address: U nit 2 ,4th Floor, Espaffa Espaffa Place Place Building, 1139 Adelina St reet co rner Espana Espana Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.villasislawcenter.com  / www.facebook.com/villasisla www.facebook.com/villasislawcenter/www.remediall wcenter/www.remediallawdoctrines.bl awdoctrines.blogspot.com ogspot.com /  / villasislawcenterOgmail.com / mvolawoffice mvolawoffice(5)gm (5)gmail.com ail.com Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

Preventive Suspension Jurisprudential law (Reyes v. Delim, 368 SCRA 323, 333 [2001]; Yabut v. Office of the Ombudsman, 233 SCRA 310, 316-317 [1994]; Beja, Sr. v. Court of Appeals, 207 SCRA 689, 694 [1992]) establishes a clear-cut distinction between suspension as preventive measure and suspension suspension as penalty. The distinctio n, by considering the purpose aspect the suspensions, is readily cognizable as they have different ends to be achieved. Preventive suspension is merely a preventive measure, a preliminary admin istrative inve stigation. The purpose o f the suspension suspension order is to prevejj from using his position and the powers and prerogatives of his office to witnesses or tamper with records which may be vital in the prosecution him. I f after such investigation, investigation, the charge charge is established established and the per found guilty of acts warranting his suspension or removal, then he is susp^dedTremoved or dismissed. dismissed. This is is the penalty.

W'

That preventive suspensio suspension n is not a penalty is in fact explicitly provided by Section Section 24 of Rule XIV of the Omnibus Rules Implementing Book/V of the Administrative Code of 1987 (Execut (Executive ive Order Order No. No. 292) 292) and and other Pertinent Pertinent C iv il ^ fW e Laws Laws.. Xxx Clearly, service of the preventive suspension cannot be credited as service of penalty. To rule otherwise is to disregard above-quoted Sections 24 and 25 of the Administrative Code of 1987 and render nugatory the substantial distinction between, and purposes of imposing preventive suspension and suspension as penalty. I i

Xxx En passant, neither may the concept of crediting, criminal law, preventive imprisonment in the service of a convict's term of imprisonment (Article 29 of the Revised Penal Code) be applied to preventive suspension during investigation in administrative law in the service of a respondent's respondent's final penalty of suspensi suspension. on. For not only are they distinct in the objective or purpose, or in their nature as preventive imprisonment involves restriction of pe personal .liberties which is not the case with preventive preven tive suspension; the respective laws  A

 ^ ^ e ri n g them them are are expl explic icit it.. (Qui mb o v. Gerv acio, 46 6 SCR SCRA 277, Aug. 9, 2005 , 3rd 3rd Div.

.^^TCarpio-Morales])

 A 

The Doctrine Doctrine o f Condonation w  A public official cannot canno t be removed for administrative admin istrative miscond uct committed commi tted during a prior term, since his re-election to office operates as a condonation of the officer’s previous misconduct miscond uct to the extent of cutting off the right to remove him therefor. The foregoing rule, however, finds no application to criminal cases pending against petitioner. (Aguinaldo v. Santos, 212 SCRA 768, 773 [1992])  Address: Un it 2 ,4

Floor, Esparia Esparia Place Place Building, 1139 Adelina Stree t corne r Esparia Esparia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com  / www.facebook.com/vil www.facebook.com/villasislawcent lasislawcenter er / www.remediallawdoctrines. www.remediallawdoctrines.blogspot.com blogspot.com [email protected] / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

Reason fo r the Doctrine The rationale for this holding is that when the electorate put him back into office, it is presumed that it did so with full knowledge of his life and character, including his past misconduct. If, armed with such knowledge, it still reelects him, then such reelection is considered a condonation of his past misdeeds. (Mayo r Alv in B. Garcia v. Hon. Arturo C. Mojica, etal., G.R. No. 139043, Sept. 10, 1999 [Quisumbing]) Caveat: This Doctrine of Condonation was ab an do ne d by the Supreme Co urt j recent case of Conchita Carpio Morales v. Cou rt of App eals (Sixth Divisj) Divisj) 217126-27, November 10, 2015, En Banc (Perias-Bernabe).  (Perias-Bernabe).  However, of the doctrine was given prospective application only. The Origin of the Condonation Doctrine Generally speaking, condonation has been defined as forgiveness of an offense, [especially] by treating the ol offense.”

or implied £re had been no

The condona condonati tion on doct doctrin rine e - which which c q n r ^ ^ this same sense of complete extinguishme exting uishme nt of liability x x x - is not based on stlWtery stUBtery law. It is a jurisprude juris prudential ntial creation that originated from the 1959 case of Pascual v. Hon. Provincial Board of Nueva Ecija (106 Phil. 466 [1959]), wh [1959]),  wh ich was the refty ^ decided decided under the 1935 1935 Con stitution. stitution. Xxx  As there was no lea al^p re c e d e ft to i f th e issu is su e at th a t tim e, the Court, in Pascual, reso rted to Am erican au ttfor ifies and ‘round ‘round that cases cases on the the matter are conflict conflicting ing due in in part, probably, to differericCTW^rewtes and constitutional provisions, and also, in part, to a diver divergenc gence e of views views .w itf ^ e s p e ^ /o the questio question n of whether whether the the subsequ subsequent ent electi election on or appoint appointment ment condone condones s the the (iiiat misc miscond onduct uct.” .” W ithou t goin g into th e varia bles o f these conflicting views aHePca^ps, it proceeded to state that: The The w ^^ F o ^e u th o ritie s x x x seems seems to to incline incline toward toward the the rule rule denying denying the the /^ ig h t to remove from from office because because of misco ndu ct during a prior term, term, to whic which h full y si^Bscri be. be. Conclusion is at once problematic since the Court has now uncovered that there established weight of authority in the United States (US) favoring the doctrine of ^nation, which, in the words of Pascual,  Pascual,  theorizes that an official’s re-election denies : to remove him from office d ue to a miscon duct during a prio r term. term. In fact, x x x at least seventeen (17) states in the US have abandoned aband oned the condonat ion doctrine. X x x Xxx Overall, Overall, the foregoing data clearly contravenes the preliminary conclusion in Pascual that there is a “weigh “weigh t of authority” in the US on the condon ation doctrine. In fact, without  Address: Un it 2 ,4th Floor, Espaff Espaffa a Place Place Building, 1139 Adelin a Stree t corne r Espaiia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com  / www.facebook.com/vi www.facebook.com/villasislawcenter llasislawcenter / www.remediallawdoctri www.remediallawdoctrines.blogspot.com nes.blogspot.com villasislawcenterOgmail. villasislawcenterOgmail.com com / [email protected] Tel. No. (02) 241-4830 / Cel. Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

any cogent exegesis to show that Pascual had Pascual had accounted for the numerous factors relevari to the debate on condonation, an outright adoption of the doctrine in this jurisdiction would not have been proper.  At any rate, these US cases are only onl y of persuasive persua sive value in the process of this Court’s decision-making. “[They] are are not relied relied upon as precedents, but as guides of  interpretation.” interpretation.” Therefore, the ultimate analysis is on on whether or not the condonation doctrine, as espoused in Pascual, and Pascual, and carried over in numerous cases after, can be held up against prevailing legal legal norms. Note that the doctrine of stare decisis does decisis does not preclude this Court from revisiting existing doctrine. X x x In this case, the Court agrees x x x that since the time Pascual  Pascual  was decided, the legal landscape has radically shifted. Again, Pascual was a 1959 case decided under the 1935 1935 Constitution, which dated provisions do not reflect the experience of the Filipino people under the 1973 and 1987 Constitution s. Therefore, Therefore , the plain difference in setting, including, of course, the sheer impact of the condonation doctrine on public accountability, calls for Pascual’ Pascual’s judicious re-examination. re-examination. Testing Testing the Condonation Do ctrine ctrine  may be dissected i nto three (3) parts: parts: Pascual’s ratio decidendi decidendi may First,  First,  the penalty of removal may not be extended beyond the term in which the public officer was elected for each term is separate and distinct x x x. Second,  Second,  an elective official’s re-election serves as a condonation of previous misconduct, misconduct, thereby cutting the right to remove him therefor; therefor; and Third, courts Third, courts may not deprive the electorate, who are ssumed to have known the life and character of candidates, o f their right to elect officers x x x. Xxx The Court, citing Civil Service Commission v. Sojor (577 Phil. Phil. 52, 72 [2008]),  [2008]),   also clarified that the condonation doctrine would not apply to appointive officials since, as to them,-there is no sovereign will to disenfranchise x x x.

 A thoroug h review revie w of the cases post-1 po st-1 987 98 7 x x x would show that the basis for donation under the prevailing constitutional and statutory framework was never accounted for. for. Wha t remains apparent from the text of these cases is that the basis for condonation, as jurisprudential doctrine, was - and still remains - the above-cited postulates of Pascual,  Pascual,  which was lifted from rulings of US courts where condonation was amply supported by their own own state laws. With respect to its applicability to administrative cases, the core premise of condonation - that is, an elective official’s re-election cuts off the right to remove him for an administrative offense committed committed during a prior term term - was adopted hook, hook,  Address: Un it 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet corn er Espafia Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.facebook.com/vi www.facebook.com/villasislawcenter llasislawcenter / www.remediallawdoctri www.remediallawdoctrines.blogspot.com nes.blogspot.com [email protected]   / mvplawoffice(5>email.com [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

tested against existing existing legal norms. As in the US, US, the propriety of condonation is - as it should be - dependent on the the legal foundation foundation of the adjudicating adjudicating jurisdiction. Hence, Hence, the the Court undertakes an examination of our current laws in order to determine if there is legal basis for the continued application application of the doctrine of condonation. XXX  As earlier earlie r intimated, Pascual was a decision promulgated in 1959. 1959. Therefore, i t t e s decided within the context of the 1935 Constitution which was silent with respect to public accountabili ty, or of the nature of public office being a public trust. The provision provisio n in the 1935 Constitution that comes closest in dealing with public office is Section 2, Article II which states that “[t]he defense of the State is a prime duty of government, and in the fulfillment of this duty all citizens may be required by law to render personal military or civil service.” Perhaps owing to the 1935 Constitution’s silence on public accountability, and considering the dearth of jurisprudential rulings on the matter, as well as the varianoe in the policy considerations, considerations, there wa s no glaring objection confronting the Pascual Court in adopting the condonation doctrine that originated from select US cases existing existing at that time. time. With the advent of the 1973 Constitution, the approach in dealing with public officers underwent a significant significant change. change. The new charter introduced introduced an entire article article on accountability of public officers, officers, found in Article Article XIII. XIII. Section 1 thereo f positively positively recognized, recognized, acknow acknowled ledged ged,, and and decl declare ared d that that “ [pj ub lic offic e is a p ub lic trus t.” Accord According ingly, ly, “ [p]u blic officers and employees shall serve with the highe st degree degree of resp onsibility, integrity, loyalty and efficiency, and shall remain remain accou ntable to the people.”  After the turbule nt decades decade s of Martial Law rule, th e Filipino People have framed f ramed and adopted the 1987 Constitution, which sets forth in the Declaration of Principles and State Poli Policie cies s in in Artic Article le II II that “ [t]he State shall maintain hon esty and inte grity in the pub lic service and take positive and effective measures against graft and corruption.” Learning how unbridled power could corrupt public servants under the regime of a dictator, the Framers put primacy on the integrity of the public service by declaring it as a constitutio nal principle and a State policy. More significantl y, the 1987 Constitution strengthened and solidified what have been first proclaimed in the 1973 Constitution by commanding public officers to be accountable to the people at all times.

The same mandate is found in the Revised Administrative Code under the section of ivil Service Commission, and also, in the Code of Conduct and Ethical Standards for Public Officials and Employees. For local elective officials like Binay, Jr., the grounds to discipline, suspend or remove an elective local official from office are stated in Section 60 of Republic Act No. 7160, otherwise known as the “Local Government Code of 1991” (LGC), which was approved on October 10,1991, and took effect on January 1, 1992.  Address: U nit 2 , 4th Floor, Esparia Esparia Place Place Building, 1139 Adelina St reet co rner Esparia Esparia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.villasislawcenter.com  / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com villasislawcenter(a> villasislawcenter(a>gmail.com gmail.com / mvplawoffice(5)gmail.com Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

Related to this provision is Section 40 (b) of the LGC which states that those removed from office as a result of an administrative case shall be disqualified from running fo r any elective elective local position. In the same sense, Section 52 (a) of the RRACCS provides that the penalty dismissal from service carries the accessory penalty of perpetual disqualify from holding public office. shall In contrast, Section 66 (b) of the LGC states that the penalty of suspj ^idacy exceed the unexpired term of the elective local official nor constitute a b t the for as long as he meets the qualifications qualifications required for the office. office. N ndidacy. provision provision only pertains to the duration of the penalty and its effect o uished by the Nothing therein states that the administrative liability there&r i fact o f re-election x x x. x.  jo ve-cit -cited edJe Jega gall provisio ns now Reading the 1987 Constitution together with the  jove iorus actually bereft of legal fcondi leads this Court to the conclusion that the doctrine bases. public trust and the corollary To begin with, the concept of public ktim tim es , as mandated manda ted under un der the 1987 requirement of accountability to the  jdea that an elective electi ve local officia l’s Constitution, is plainly inconsistent Turin ring a prior prio r term can be wiped wi ped off of f by the administrative liability for a miscondu ct com ce, or even another elective post. Ele ctio n fact that he was elected to a secdnwerm is not a mode of condojjmg an%&d nistrative offense, and there is simply no su pport the notion t hat an offici al elected electe d constitutional or s t a t u t o r y T -n our jurisdictio n to support for a different term is of any administrative liability arising from an offense done during a priorJj dict dictio ion, n, liability arising from adm inistrative offenses may be condo R ^ re s id e n t in light light of Sect Section ion 19, 19, Artic Article le VII VII of the 1987 1987 Constitution which' preted in Llamas v. Orbos (279 Phil. 920, 937 [1991]) to [1991])  to app ly to administrativ£hffensi Mso, so, it d&nnof be inferred from Section 60 o f the LGC that the grounds for discipline enumerated th^ p m cannot anymore be invoked against an elective local local official official to hold him  jlministra  jlministrattafe ttafeiy iy liable once he is re-elected to office. In fact, Section 40 (b) of the LGC pretoudes^pondonation since in the first place, an elective local official who is meted with the n a n b tf removal could could not be re-elected to an elective elective local position position due to a direct Mificat ification ion from running runn ing for such post. In similar sim ilar regard, Secti on 52 (a) of the RRACCS imposes penalty of perpetual disqualification from holding public office as an accessory to the penalty of dismissal from service. To compare, some of the cases adopted in Pascual  Pascual  were decided by US State  jurisdic  juri sdictions tions wherein wherei n the doctrin e of condonation condona tion of admin istrative liability liabilit y was wa s supported suppo rted by either a constitutional or statutory provision stating, in effect, that an officer cannot be remov ed by a misconduct misconduct commit committed ted during during a previous previous term, term, or that the the di sq ua lific ati on to  Address: Un it 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet corn er Espaiia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com / www.facebook.com/vi www.facebook.com/villasislawcenter llasislawcenter / www.remediallawdoctrines.blogspot www.remediallawdoctrines.blogspot.com .com /  / [email protected] / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

hold the office does not extend beyond the term in which the official’s delinquenc oc cu rred . X x x. Hence, Hence, owing to either their variance or inapplicability, inapplicability, none of these cases can be used as basis for the continued adoption of the condonation doctrine under our existing laws. laws.  At best, Section 66  (b) of the LGC prohibit prohibits s the enfo rcem ent o f the pe na lty eg eg suspension beyond the unexpired portion of the elective local official’s term, and like allows said official to still still run for re-election. X x x. However, However, as previously stated, stated, nothing in Section 66 (b) states that the elective local official’s administrative liability is extinguished by the fact of re-election. re-election. Thus, at all events, no legal legal provision actually supports the theory that the liability is condoned. Relatedly, it should be clarified that there is no truth in Pascual’s Pascual’s postulation that the courts would be depriving the electorate of their right to elect their officers if condonation were not to be sanctioned. In political law, election pertains to the process by which a particular constituency constituency chooses an individual to hold a public office. office. In this jurisdiction, there is, is, again, no legal basis to conclude that election automatically implies condonation. condonation. Neither is there any legal basis to say that every democratic and republican state has an inherent regime of condonation. condonation. If condonation of an elective official’s administrative liability would perhaps be allowed allowed in this this jurisdiction, jurisdiction, then the same should have been provided provided by law under our governing legal mechanisms. mechanisms. May it be at the time of Pascual or Pascual or at present, by no means has it been shown that such a law, whether in a constitutional or statutory provision, exists. exists. Therefore, inferring from this manifest abserrce, abserrce, it cannot be said that the electorate’s will has been abdicated. Equally infirm is Pascual at the electorate, when re-electing a local official, are assumed to so W ik ffo w le d g e o f his his life life and and charact character, er, and that they disregarded or forgave hi :s or miaronduct, if he had been guilty of any. Suffice it to state that no such pn ists in any statute o r procedu ral rule. Beside Besides, s, it is contrary to human the electorate would have full knowledge of a public official’s misdeed sman correctly points out the reality that most corrupt acts by public officers in secrecy, secrecy, and and concealed from the public. M isc on du ct committed public official is easily covered up, and is almost always unknown to orate when the y cast the ir votes. At a concep conceptua tuall leve level, l, condonation pr^upposes that the condoner has actual knowledge of what is to be condon condonef efe e T h iw fh e re could be no condona tion of an act that is unknown. X x x.  jeing  jei ng said, this Court simply find s no legal authority autho rity to sustain the condonation condona tion this jurisdiction. As can be seen from from this discourse, it was a doctrine from from one ft f US rulings way back in 1959 and thus thus out of touch from - and now rendered obsolete by - the current legal regime. regime. In consequence, it is high time time for this this Court to abandon the condonation doctrine that originated from Pascual,  Pascual,  and affirmed in the cases following the same, such as  Aguinaldo, Salalima, Mayo Ma yorr Garcia, Garcia,  and Governor Garcia, Jr. which were all relied upon by the CA. It should, however, be clarified that this Court’s abandonment of the condonation condonation doctrine should be prospective in application for the reason that judicial decisions applying  Address: Un it 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet corn er Espaiia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.facebook.com/vi www.facebook.com/villasislawcenter llasislawcenter / www.remediallawdoctri www.remediallawdoctrines.blogspot.com nes.blogspot.com [email protected] / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

or interpreting the laws or the Constitution, until reversed, shall form part of the Philippin legal legal system. Unto this Court devolves the sole authority to interpret what the Constitution Constitution means, and all persons are bound to follow follo w its interpretation. X x x Hence, while the future may ultimately uncover a doctrine’s error, it should be, as a gen eral rule , recognized as “good law” law” prior to its its abandonment. Consequently, Consequently, th th people’s reliance thereupon should be respected. X x x Indeed, the lessons of history teach us that institutions can greatly bei hindsight hindsight and rectif rectify y its its ensuing ensuing course course.. Thus, Thus, while itit is truly perpl perplexing exing to jt ff o ik lK t a doctrine doctrine which which is barren barren of legal legal anchorage anchorage was able able to endure endure in our ju ria m m n c e ra considerable length of time, this Court, Court, under a new membership, takes cua^els and now abandons the condonation doctrine. (C on on ch ch it ita C ar arp io io M o r a l e s ^ ^ o b t i o f Ap Ap pe pe al a ls [Sixth Division], GR Nos. 217126-27, November 10, 2015, En BanefP^e^Becn^be])

ELECTION LAWS Suffrage may be exercised by all citizens of tb^Bnilippines not otherwise disqualified by law, who are at least eighteen years oFage, 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 least six months preceding the election. No literacy, literacy, property, property, or other substantive requirement shall be imposed on the exercise of suffrage. (Section 1,  A rt ic le V, 1987 C on st itu tio n) The Right o f Suffrage Suffrage Kabataan Pa rty-list, rty-list, e t al. al. 2015, En Banc (Perla

>n on Ele ctio ns , G.R. G.R. No. 221318, De cem be r 16, 16,

Held: “With these Gongjaerations in mind, petitioners’ claim that biometrics validation imposed under RAHM67, and implemented under COMELEC Resolution Nos. 9721, 9863, 10013, 10013, must perforde perforde fail. To reiterate, this this requirement is not a “qualification” to the exerc exercis ise e of t h e o f suff suffra rage ge,, but but a mere mere aspec aspectt of the reg regis istr trat atio ion n proc proced edur ure, e, of which which the the State has % e ^ ig h t to to reasonably regulate. It was institutionalized institutionalized conformant to the the itions of the 1987 Constitution and is a mere complement to the Existing Voter’s egis^totfbn Act of 1996. X x x “Thus, unless it is shown that a registration requiremen t rises to the level o f a literacy, literacy, property or other substantive requirement as contemplated by the Framers of the Constitution Constitution - that is, one which propagates a socio-economic standard which is bereft of any rational basis to a person’s ability to intelligently cast his vote and to further the public good - the same cannot be struck down as unconstitutional, unconstitutional, as in this case.”  A p p ly in g the S tr ic t S c ru tin y Test Te st to RA 10367  Address: Un it 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet corn er Espafia Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.facebook.com/vi www.facebook.com/villasislawcenter llasislawcenter / www.remediallawdoctri www.remediallawdoctrines.blogspot.com nes.blogspot.com [email protected] / [email protected]  / mvplawoffice(5)email.com mvplawoffice(5)email.com Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

“Petitioners assert that biometrics validation gravely violates the Constitution, considering that, applying the strict scrutiny test, it is not poised with compelling reason for state regulation and hence, an unreasonable deprivation of the right to suffrage. X x x “Contrary to petitioners’ assertion, the regulation passes the strict scrutiny test. “In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for determining the quality and the amount of governmental interest brought to  justify  jus tify the regulation of fundamenta funda mentall freedoms. freedoms . Strict scrutiny is used today to test tes t the validity of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights as expansion from from its earlier applications to equal equal protection. X x x the United States Supreme Court has expanded the scope of scrutiny to protect fundamental rights such as suffrage, judicial access, and interstate travel. “Applying strict scrutiny, the focus is on the presence of compelling, rather than substantial, governmental interest and on the absence of less restrictive means for achieving that interest, and the burden befalls upon the State to prove the same. “In this case, respondents have shown that the biometrics validation requirement under RA 10367 advances a compelling compelling state inte res t It was precisely designed to facilitate the conduct of orderly, orderly, honest, honest, and credible elections by containing - if not eliminating, eliminating, the perennial problem of having flying flying voters, as well as dead and multiple registrants. X x x the objective of the law was to cleanse the national voter registry so as to eliminate electoral fraud and ensure that the results of the elections were truly reflective of the genuine will of the people. The foregoing consideration is unquestionably a compelling compelling state interest. interest. “Also, it was shown that the regulation is the least restrictive means for achieving the above-said interest. interest. Section 6  of Resolution 9721 sets the procedure for biometrics validation x x x. x. It is, is, in effect, a manner of updating updating one’s registration for those already registered under RA 8189, or a first-time first-time registration for new registrants. registrants. The re-registration process is amply justified by the fact that the gove rnment is adopting a novel technology like biometrics in order to address the bane of electoral fraud that has enduringly plagued the electoral exercises in this country. country. While registrants may be inconvenienced by waiting in long lines or by not being accommodated on certain days due to heavy volume of work, these are typical burdens of voting that are remedied by bureaucratic improvements to be lemented by the COMELEC as an administrative institution. institution. By and large, the the ELEC has not turned a blind eye to these realities. realities. It has tried tried to account for the & x x x. “That being said, the assailed regulation on the right to suffrage was sufficiently  justified  jus tified as it was indeed narrowly tailored to achieve the compelling compelli ng state interest of establishing a clean, complete, permanen t and updated list of voters, voters, and was demonstrably the least restrictive means in promoting that interest. Ma kalinta l v. v. COMELEC COMELEC

 Address: U nit 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet co rne r Espaiia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com www.villasislawcenter.com /  / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / www.remediallawdoctrines.blogspot.com  / [email protected] / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

There is now an exception to the residence qualification of a voter under Section  Article V on Suffrage of the Constitution, and that is, with respect to overseas oversea s Filipinos, permanent residents of a foreign country under R.A. No. 9189 (The Absentee Voters Act of 2003). Under said Act, overseas Filipinos, permanent perman ent residents in a foreign country, are now allowed to register and vote before our embassies and consulates abroad for President, President, Vice-President, Vice-Pre sident, Senators, and Party-list Representative. Representat ive. There is a clear intent on the pa of the framers of our Constitution to enfranchise as many of our overseas countrym© recognition of their tremendous contributions to the national economy in terms a remittances. It is but fair that their voices should be heard on who should be o leaders. Effect o f Filing Filing Certificate Certificate o f Candidacy What is the purpose of the law in requiring the filing of certifies fixing the time time lim it therefor? therefor?

y an and d in in

The evident purpose of the law in requiring the filingy 0rt© rtiflfcte o^tandidacy and in fixing fixing the time time limit therefor therefor are are:: (a) (a) to enable enable the voters voters tc^n ow , qt l ^ s t sixty days days before before the regular election, the candidates among whom they are«omare the choice, and (b) to avoid avoid confus confusion ion and and inconveni inconvenience ence in the ta b u la tio n ^\ h e v o t^ B a st . For if the law law did not not confine the choice or election by the voters to the ?|i^registered candidates, there might be as many many persons persons voted voted for as there are are votera wn d i ^ tS ^ ii g h t be cast cast even even for unknown unknown or fictitious persons as a mark to identify th^votes in fijror of a candidate for another office in the same election. (Miranda v. Abaya, G.R. Np, 136351, July 28, 1999) May a disqualified candidate aq0 whose certificate of candidacy was denied due course and/or canceled by the COM ELE&pe validly substituted?

Even on the most basic and fundamental principles, it is readily understood that the concept of a substitute presuppose? the existence of the person to be substituted, for how can a person person take the place of §gmebody §gmebody who does not exist or who never was. The Court has no other choice but to rute-that in all instances enumerated in Section 77 of the Omnibus Election Election Code, the existence £ f a valid certificate of candidacy se asonably filed is a requisite sine qua n o n ^ ^ ^

II told, ^disq ualifie ua lifie d candidate may only be substituted if he had a valid certificate certificate of candidavin thgVfst place because, if the disqualified candidate did not have a valid and ason aph gjleq gjle q certificate of candidacy, he is and was not a candidate at all. all. If a person person not ^candidate, he cannot be substituted under Section 77 of the Code. (Miranda v. Fr  . No . 136351 136351,, Ju ly 28, 1999, 1999, en Banc [Melo])

t of Disqualification Case  Ab an do ni ng the Do ctrin ct rin e o f the th e R ejec ej ec tio n o f the Se co nd -P lace la ce r 

Resolving the third issue necessitates revisiting Topacio v. Paredes  which is the  jurisprud  juris prudentia entiall spring of the principle that a second-pla secon d-placer cer cannot canno t be proclaimed proclaim ed as the winner in an election contest. contest. This doctrine must be re-examined re-examined and its soundness once  Address: U nit 2 , 4th Floor, Espafia Espafia Place Place Building, 1139 Adeli na St reet corne co rnerr Espaiia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.villasislawcenter.com  / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

ineligible candidate cannot be proclaimed as the winner in the elections. elections. Xxx The often-quoted phrase in Topacio v. Paredes is Paredes is that “the wreath of victory cann be transferred from an ineligible candidate to any other candidate when the sole questio the eligibility of the one receiving a plurality of the legally cast ballots.” This case is not even the ratio decidendi; it decidendi; it is a mere obite r dictum. dictum. The Court was comparing “the effect of a decision that a candidate is not entitled to the office because of fraud or irregularities in the elections x x x [with] that produced a person ineligible to hold such an office.” Xxx On closer scrutiny, scrutiny, the phrase relied upon by a host of decisions does not even have a legal basis to stand stand on. It was a mere pronouncem ent of the Court comparing one process with another and explaining the effects ther idependent statement, statement, it is even illogical. Xxx What prevents the transfer of the wreath of victory from the ineligible candidate to another candidate? When the issue being decided upon by the Court is the eligibility of the one receiving a plurality of the legally cast ballots and ineligibility is thereafter established, what stops the Court from adjudging another eligible candidate who received the next highest number of votes as the winner and bestowing upon him that “wreath?” “wreath?”  An ineligible candidate cand idate who receives the highest number numbe r of votes is a wrongful winner. By express legal mandate, he could not even have been a candid ate in the first place, but by virtue of the lack of material time or any other intervening circumstances, his ineligibility ineligibi lity might not have been passed upon prior to election date. Consequently , he may have had the opportunity to hold himself out to the electorate as a legitimate and duly qualified candidate. candidate. However, However, notwithstanding the the outcome of the elections, his ineligibility ineligibility a'#i ate remains unchanged. Ineligibility Ineligibil ity does not only pertain to his qualifications quali fications as cj i but necessarily necessa rily affects his right to hold public office. The T he number numbe r of ballots cast cannot cure the defect of failure to qualify with the substantive legal requirements of Eligibility to run for public office. (Casan Macode Maquiling v. COMELEC, et at., G.R. No. 195649, April 16, 2013, En Banc [Sereno, CJ]) With Arnado's disqualification, Maquiling then becomes the winner in the election as he obtained obtained the highest number of votes from from among the qualified candidates. We have ruled in the recent cases of Aratea of Aratea v. COMELEC and COMELEC  and Jalosjos v. COMELEC that COMELEC that a void COC  Address: U nit 2 , 4th Floor, Esparia Esparia Place Place Building, 1139 Adelina St reet co rner Espafia Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.villasislawcenter.com  / www.facebook. com/villasislawcenter / www.remediallawdoctrine www.remediallawdoctrines.blogsDQt.com s.blogsDQt.com villasislawcenter(a> villasislawcenter(a>gmail.com gmail.com / mvpiaw office Ogma il.com Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

cannot produce any legal effect. effect. Thus, the votes cast in favor of the ineligible candidate not considered at all in determining the winner of an election. Even when the votes for the ineligible candidate are disregarded, the will of the electorate is still still respected, respected, and even more so. The votes cast in favor of an ineligible candidate do not constitute constitute the sole and total expression of the the sovereign voice. The votecast in favor of eligible and legitimate candidates form part of that voice and must also respected.  As in any contest, elections electi ons are govern ed by rules that determine determ ine the and disqualifications of those who are allowed to participate as players, participants who turn out to be ineligible, ineligible, their victory is voided and the I q t^ ^ is the next in rank who does not possess any of the disqualifications jnor lackg any qualifications set in the rules to be eligible as candidates. v Xxx The electorate’s awareness of the candidate’s disqualification's not a prerequisite for the disqualification disqualification to attach to the candidate. The very existence of a disqualifying circumstance makes the the candidate ineligible. Knowledge by the electorate of a candidate’s disqualification is not necessary before a qualified candidate who placed second to a disqualified one can be proclaimed proclaimed as the winner. winner. The second-place r in the vote count is actually the first-placer among the qua lified candidates. That the disqualified candidate has already been proclaimed and has assumed office is of no no moment. moment. The subsequent disqualifications based based on a substantive substantive ground that existed prior to to the filing o fj h e certificate of candidacy voids not only the COC but the proclamation. X xx The disqualifying circumstance surrounding Arnado's candidacy involves his citizenship. citizenship. It does not involve the commission of election election offenses as provided for in the the first sentence o f Section 68 of the Omnibus Election Election Code, the effect of which is to disqualify the individual from continuing as a candidate, or if has already been elected, from holding the office. T % disqualif disqualifying ying circumstanc circumstance e affect affecting ing Arnado is his citizen citizenship. ship. X x x Arnado Arnado a Filipino and an American citizen when he filed his certificate of candidacy. He dual citizen disqualified to run for public office based on Section 40(d) of the Local ernment Code. With Arnado being barred from even becoming a candidate, his certificate of candidacy candid acy is thus rendered void from from the beginning. It could not have produced produced any other legal effect xxx.

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To hold that such proclamation is valid is to negate the prohibitory character of th disqualification which Arnado possessed even prior to the filing filing of the certificate of candidacy. candidacy. The affirmation of Arnado’s disqualification, although made long after the elections, reaches back to the filing of the the certificat e of candidacy. Arnado is declared to be not a candidate candid ate at ail in the May 2010 elections.  Arnado being not a candidate, the votes cast in his favor  counted. counted. This leaves Maquiling as the the qualified candidate who obtair obtair of votes therefore, the rule on succession under the Local Governme (Casan Macode Maquiling v. COMELEC, et al., G.R. No. 19564 Banc [Sereno, CJ])

THE LAW OF PUBLIC CORPORATIONS Local Governments are are the Territorial and Political Sub divisions Philippines The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalitie s, and and barahgays. barahgays . There shall be autono mous regions in Muslim Muslim Mindanao and tl lerei nafte r provided. (Section 1,  A rt ic le X, 1987 C o ns titut tit ut io n)

 Auton  Au tonom om ous ou s Regions Regi ons There shall be created autonorjsous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, structures, and other relevant characteristics within the framework o f this Constitution Constitution and the national sovereignty as well as territorial integrity of the Republic of the 15, Article X, 1987 1987 Constitution) Philippines. (Section 15, The Congress shall enact an organic act for each autonomous region with with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multisectoral bodies. The organic act shall define the basic structure structure of government for the region c o m in g of the executi executive ve department department and and legislative legislative assembly, assembly, both both of which shall shall b ^ ^ e c tiv e and represe representat ntative ive of the constit constituent uent polit political ical units units.. The organic organic acts acts ~nall likewise provide for special courts with personal, family and property law  jurisdiction  jurisd iction consistent consiste nt with th e provisions of this Constitutio n and national laws. The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, purpose, provided that only provinces, provinces, cities, cities, and geographical areas voting favorably in such plebiscite shall be included in the autonomous region. (Sec. 18, Art. X, 1987 Constitution)

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The The Province o f North Cotabato Cotabato v. The The Government o f the the Re public o f the the Ph ilippine ilippine Peace Panel, G.R. No. 183591, 568 SCRA 402, October 14, 2008, En Banc (CarpioMorales) Creation Creation o f Local Governments No province, city, municipality, or barangay may be created, divided, mer  abolished, or its boundary substantially altered, exc ept in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. (Section 10, Article X, 1987 1987 Constitution ) Rodolfo G. Navarro, et al. v. Executive Secretary Eduardo Ermita, et al., G.R. No. 180050, 180050, 12 Ma y 2010, 2010, En Ban c (Peralta) Section 7, Chapter 2 paragraph (c) of the Local Government Code (LGC), provides that the land area must be contiguous, unless it comprises two ( 2) or more islands, or is separated by a local governmen t unit independent of the others; property identified by metes and bounds with technical descriptions; and sufficient to provide for such basic services and facilities to m eet the requirements of its populace. populace. Therefore, there are two requirements for land area: (1) the land area must be contiguous; and (2) the land area must be sufficient to provide for such basic services and facilities to meet the requirements of its populace. populace. A sufficient land area in the creation of a province is at least 2,000 square kilometers,
/here in paragraph (b) is it expressly stated or may it be implied that when a composed of two or more islands, islands, or when the territory o f a province is separated red city or cities, such province need not comply with the land area requirement 2,000 2,000 square kilomete rs or the requireme re quirement nt in paragraph (a) (i) of Section 461 o f  LGC. Where the law is free from ambiguity, the court may not introduce exceptions or conditions where none is provided from from co nsiderations of convenience, public welfare, or for any laudable purpose; neither may it engraft into the the law qualifications not contemplated, nor   Address: Un it 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet corn er Espafia Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.facebook.com/vi www.facebook.com/villasislawcenter llasislawcenter / www.remediallawdoctrines.blogspot www.remediallawdoctrines.blogspot.com .com /  / [email protected] / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

construe its provisions by taking into account questions of expediency, good faith, practica utility and other similar reasons reasons so as to relax non-compliance non-compliance therewith. therewith. Where the law speaks in clear and categorical language, there is no room for interpretation, but only for application.

Powers of Local Governments Corporate Powers Powers o f Local Governments

To be considered as a valid police power, an ordinance must pass test: the formal (i.e.,  whether the ordinance is enacted within the corpora* local local government unit, unit, and whether it is is passed passed in accordance with the pr q ^a a re p cribed by law); and the substantive (i.e.,  involvin involving g inherent inherent merit, merit, like like tt^ c o m ^r m ity the ordi ordinan nance ce with with the the lim limit itat atio ions ns under under the the Cons Consti titu tuti tion on and and the the s t a t u ^ s ^ ^ H ^ g with the requirements of fairness fairness and reason, reason, and its consistency consistency with pu The formalities in enacting an ordinance are laid dopulV S^toi^SS and Section 54 of The Local Government Code. These These prov provis ision ionss req uiA the o rd in ^c e to be passe passed d by by the majori majority ty of the the members members of the the sangguni sanggunian an conggfne conggfned, d, i^ L E j^ e n te d to the the mayor for approval. X x x. The corporate powers of the local go’ uni^onfer the basic authority to enact legislation that may interfere with pei property, lawful businesses and occupations in order to promote the genei Such legislative powers spring from the delegatio delegation n thereof by Co ngres^through he Local Government Code or a special law. law. The General Welfare Clause i^S i^ S e c ti of the Local Government Code embodies the legislative grant that enables the lovernment unit to effectively accomplish and carry out the declared obji its df its cr© and to promote and maintain local autonomy. X x x. Section 1(|fc om pr eh ^}s * two branches branches of delegate delegated d powe powers, rs, namely: namely: the general legislative power  aft$#re%>//re proper. General legislative power refers to the power  aft$#re%>//re powe r proper. delegated b\^Conaresstp/he local legislative body, or the Sangguniang Panlungsod in the case of Dava^Gffjfrhjfr enable the local legislative body to enact ordnances and make reguls^pns. reguls^p ns. This power is limited in that the enacted ordinances ordina nces must not be repugnant repugn ant to to law, law, a n ^ h e p ^ ^ r must be exerci exercised sed to effect effectuate uate and and discharg discharge e the the powers powers and and duties duties ally c o ^ |j i4 d to the local local legislative legislative bod body. y. The police police power, on the other hand hand,, the local government unit to enact ordinances necessary and proper for the safety, prosperity, morals, peace, good order, comfort, and convenience of the bvernment unit and its constituents, and for the protection of their property. Section Section 458 of the Local Government Code  explicitly vests the local government unit with the authority to enact ordinances aimed at promoting the general welfare x x x. In terms of the right of the citizens to health and to a balanced and healthful ecology, the local government unit takes its cue from Section 15 and Section 16, Article II of the 1987 Constitution. Following the provisions of the Local Government Code  and the Constitution, Address: U nit 2 , 4th Floor, Espaffa Espaffa Place Place Building, 1139 Adelina Street St reet corner cor ner Esparfa Esparfa Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.villasislawcenter.com  / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com villasislawcenterOgmail.com / [email protected] Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

the acts of the local government unit designed to ensure the health and lives of i constituents and to promote a balanced and healthful ecology are well within the corporate powers vested in the local government unit. unit. X x x. (Wilfredo Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, et al., G.R. No. 189185, August 16, 2016, En Banc [Bersamin]) Requisites o f a Valid Ordinance Ordinance

 A valid ordinance ordin ance must not only be enacted within the corporate powers o t government and passed according to the procedure prescribed by law. law. In ordebl as a valid piece of local legislation, it must also comply with the followudgVubstanf requirem requirements ents,, namely: namely: (1) it must not contravene contravene the Constit Constitution ution or any j« to t e ; ^ ^ t must be fair, not oppressive; oppressive; (3) it must not be be partial partial or discriminatory; (4) iU jo u s t^ t probroit probroit but but may regul regulat ate e trad trade; e; (5) (5) it must be gener general al and and consis consisten tentt with with p u b jj g ^ o |^ ^ B ^ ( 6) it must not be unreasonable. (Wilfredo Mosqueda, et al. v. PH iptno, Ban^g a Growers & Exporters Association, et al., G.R. No. 189185, August 16,

* B i  wrlBersamin])

Ordinance Ordinance No. No. 0309-0 0309-07 7 o f Davao Davao City Proh ibiting ibiting AeriaRfcpr AeriaRfcprayi aying ng in T h a t C ity Declared Declared Ultra Vires \

^

Wilfredo Mosqueda, et al. v. Pilipino Banana  Gl al., <& Exporters Asso ciation, et al.,  jfs a rn /fl^ /fl ^ G.R. No. 189185, August 16, 2016, En Ban

Held: The function of pdsrteles coritol, regulation and development is within the  jurisdictio  juris diction n of the FP /W Fe rti liz i^a i^ a n y Pesticide Pesticid e Authority) Autho rity) under Presidentia l Decree No. No. 1144. 1144. The FFft, v^is established in recognition of the need for a technically orient oriented ed g o v e rn rfe n W (^ ^h a t will will protect protect the public public from from the risks risks inher inherent ent in in the the use of pesticidelW T^jagrform its mandate, it was given under Section 6 of P re sid en t^ D?cre D?cree\ e\ | f r 1144 1144 the the followi following ng powers powers and funct functions ions with with respec respectt to pesticides agricultural chemicals x x x. the FPA was respon sible for ensuring the compatibility between the ----- J theapplication of pesticides in agricultural activities and the demands for  Ith Ith and environmental safety. safety. This responsibility includes not only the the of safe and unsafe pesticides, but also the prescription of the safe of application in keeping with th e standard o f good agricultural practices. practices. On the other hand, the enumerated devolved functions to the local government units do not include the regulation and control of pesticides and other agricultural chemicals. chemicals. X x x In enacting Ordinance No. 0309-07 without the inherent and explicit authority to do so, the City of Davao performed an ultra vires act. As a local government govern ment unit, unit, the City of Davao could act only as an agent of Congress, and its every act should always conform to and reflect the will of its principal x x x. x.  Address: U nit 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Ade lina St reet corne co rnerr Espafia Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com villasislawcenterOgmail.com villasislawcenterOgmail.com / [email protected] Tel. No. (02) 241-4830 / Cel. Cel. Nos. (0949) 343-6092; (0922) 898-8626

For sure, every local governmen t unit only derives its legislative authority from from Congress. Congress. In no instance instance can the local government unit rise above its source of authority. authority. As such, its ordinance cannot run against or contravene existing existing laws, precisely because its authority is only by virtue o f the the valid delegation from Congress. Xxx Moreover, Ordinance No. 0309-07 proposes to prohibit an activity covered by the jurisdiction of the FPA, which has issued its own regulations Memorandum Circular x x x. X xx Devoid of the specific delegation to its legislative exceeded its delegated authority to enact Ordinan Ordinance No. 0309-07 must be struck down also for part of the Sangguning Bayan of Davao City. City.

of Davao 03Q9-07. Hence, ires act ires  act on the

We must emphasize emphasize that our ruling ruling herein herein does no t^ ie k to deprive deprive the LGUs LGUs their right to regulate activities activities within within their jurisdiction. They are empowered under Section 16 of the Local Government Code  Code  to promote the general welfare of the people through regulatory, not prohibitive, ordinances that conform with the policy directions of the National National Government. Ordinance No. 0309-07 failed to pass this test as it contravenes the specific regulatory policy on aerial spraying in banana plantations on a nationwide scale of the National National Government, through th e FPA. Requisites Requisites fo ra Proper Exercise Exercise by Loca l Governments Governments o f Police Power  In the State’s exercise of police power, the property rights of individuals may be subjected to restraints restraints and burdens in order to fulfill the objectives of the Government. A local government unit is considered to have properly exercised its police power only if it satisfies the following requisites, to wit: ( 1) the interests of the public generally, as distinguished from those of a particular class, require the interference of the State; and (2) the means employed are reasonably necessary for the attainment of the object sought to be accomplished and not unduly oppressive. oppressive. The first first requirement refers refers to the Equal Equal Protection Clause of the Constitution, the second, to the Due Process Clause of the nstitution. bstantive due process requires that a valid ordinance must have a sufficient .tion .tion for the Governmen t’s action. This means that in exercising exercis ing police powe r the los5l government unit must not arbitrarily, whimsically or despotically enact the ordinance regardless of its its salutary purpose. purpose. So long as the ordinance realistically serves a legitimate public purpose, and it employs means that are reasonably necessary to achieve that purpose without unduly oppressing the individuals regulated, the ordnances must survive a due process challenge. (Wilfredo Mosqueda, et at. v. Pilipino Banana Growers & Exporters  Association, eta l., G.R. G.R. No. 189185, 189185, August Aug ust 16, 2016, En Banc [Bersam in])

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Vacancies and Succession in the Local Governments

Farinas v. Barba

Limitation on Term of Office of Local Elective Officials The term of office of elective local officials, except barangay officials, shall be determined by law, shall be three years and no such official shall serve for more than three three consecutive terms. Voluntary renunciation of office office for any length 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. elected. (Section 8, Ar ticle X, 1987 Constitution) The term limit for elective local officials must be taken to refer to the right to be elected as elected as well as the right to serve in the same elective position. Consequently, Consequ ently, it is not enough that an individual has served three consecutive terms in an elective local office, he must also have been elected to elected to the same position for the same number of times before the disqualification can apply. (Borja, Jr. v. COMELEC and Capco, Jr., G.R. No. 133495, Sept. 3, 1998, 295 SCRA 157, En Banc [Mendoza]) The two conditions for the application of the disqualification disqualification provision are: (1) that the the local local official concerned has been elected three consecutive times for the same position; position; and (2) that he has fully served three three consecu tive terms. Absent one or both o f these two conditions, conditions, the disqualification disqualification may not yet apply. (Borja, Jr. v. COMELEC and Capco, Jr., G.R. No. 133495, Sept. 3, 1998, 295 SCRA 157, En Banc [Mendoza]) What are the policies embodied in the constitutional provision barring elective local officials, with the exception of barangay officials, from serving more than three consecutive terms? To prevent the establishment of political dynasties is not the o nly policy embodied in the constitutional provision in question (barring elective local officials, with the exception of barangay officials, officials, from from serving more than three consecutive terms). The other policy is that of enhancing the freedom of choice of the people. To consider, therefore, therefore, only stay in office office regardless of how the the official concerned came to that office - whether by election or by succession succession by operation operation of law - would be to disregard one o f the purposes of the constitutional provision in question. (Borja, Jr. v. COMELEC and Capco, Jr., G.R. No. 133495 133495,, Sept. 3 ,1998, 295 SCRA SCRA 157, 157, En Ba nc [Mend oza]) Socra tes v. COMELEC (Novem ber 12, 12, 2002) 2002) \ \\ \ What is prohibited prohibited by the Constitution Constitution is after serving three (3) consecutive terms to th ffi a m e position position a local local elective elective official official shall shall run for immediate reelectio reelection. n. Any subsequent reelection, like a recall election, is no longer covered by the provision, for as long as it is not an immediate reelection after serving the three (3) consecutive terms. Mendoza v. COMELEC (December 17, 2002)

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Service of the recall term, since it is less than three (3) years, is not to be considere as one full term for purposes of applying the disqualification disqualification under Section 8, Article X of the Constitution. Is the preventive preventive suspension o f an elected elected local government official an interruption interruption of  his term o f office fo r purpose s o f the three-ter three-term m lim it rule? rule? The “interruption” of a term exempting an elective official from the three-term lim rule is one that involves no less than the in voluntary loss of title to office. The elective electiv e official must have involuntarily left his office for a length of time, however short, for an effective interruption interruption to occur. occur. Thus, based on this standard, loss of office office by operation of law, law, being involuntary, Is an effective interruption of service within a term. On the other hand, temporary inability or disqualification to exercise the functions of an elective post, even if involuntary involuntary,, should not be considered an effective interruption interruption o f a term because it does not involve the loss of title to office or at least an effective break from holding office; the office holder, while retaining title, is simply barred from exercising the functions of his office for a reason provided by law.  An interruption occurs when the term is broken because becaus e the office holder lost the right right to hold on to his office, office, and cannot be equated with the failure to render service. service. The latter occurs during an office holder’s term when he retains title to the office but cannot exercise his functions functions for reasons established by law. Of course, the term term “failure to serve” cannot be used once the right to office is lost; without the right to hold office or serve, then no service can be rendered so that none is really lost. To put it differently, Sec. 8, Art. X fixes an elective official’s term of office and limits his stay in office to three consecutive terms as an inflexible rule that is stressed no less, by citing involuntary renunciation as an example examp le of a circumvention. circumven tion. The provision should be read in the context of interruption interruption o f term, term, not in the the context o f interrupting interrupting the full full continuity of the exercise of the powers of the the elective position. The “voluntary renunciation” it speaks speaks of refers only to the elective officiate voluntary relinquishment of office and loss o f title title to his office. office. It does not speak of the temporary “cessation “cessation of the exercise of power or authority” that may occur for various reasons, with with preventive suspension being only one o f them. them. In all cases of preventive suspension, the suspended official is barred performing the functions of his office and does not receive salary in the meanwhile, but not vacate and lose title to his office; loss of office is a consequence that only results an ev< eventual finding of guilt or liability. (Aldovino, Jr. v. COMELEC, G.R. No. 184836, 2009 009, En Ba nc [B rion ])

from does upon Dec.

Recall is a mode of removing a local elective official from his post even before the end of his term on the ground of loss of confidence. Ther There e is o nly one grou nd fo r Recall: Recall: Loss o f Confidence Confidence

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Loss of confidence as a ground for recall is a political question and therefore, subject to judicial review. (Evardone v. COMELEC) After all, as explained by the Court in that case, the initiation of the recall process is not the recall itself. There will still be be conducted a special recall election and, in that special recall election, it will be known whether the people still have confidence in the local elective official sought to be recalled or whether they no longer have confidence in him. Way of Initiating R ecall Under current and existing laws, there is only one way of initiating through a petition to be signed by the registered voters of the local concerned becaus e of the enactm ent by Congr ess of R.A. R.A. No. No. 92 Preparatory Recall Assembly as a Mode of Initiating Recall) on Februa  A petition signed by jus t one person is in violation requirement of initiating recall. (Angubung v. COMELEC)

m statutory

PUBLIC INTERNATIONAL Jus Cogens Norms Cogens Norms and Erg Erg^Oi ^Oi

es Obligations es Obligations

Just cogens  cogens  lite litera rall lly y mea means ns “c “c o m p e lli n ^ ^ t A y defi define ned, d, it mean means s a per perem empt ptor ory y (mand (mandato atory) ry) norm norm of genera generall in te rn a tio n ^^ w w h ic ^is recogn recognize ized d and accept accepted ed by the the international community of States as a nofry&^^does not permit of any derogation and which which can be replaced replaced or modified modified only by a a ib s ^ u e n t norm of the the same charac character. ter. Under the Vienna Convention on the Law of Treaties, a treaty that violates a  ju s cogens norm cogens norm will have to be invalidated. Erga omnes  omnes  literally literally means “in relation relation to the whole." An erga omnes  omnes  refers to an obligation of a State towards the international community of States as a whole. Between an erga omnes  omnes  obligation and an obligation of a State towards another State pursuant to a treaty, an erga omnes is omnes is superior. However, in Vinuya, et. al. v. The Honorable Executive Secretary Alberto G. mu lo, et.jpl., (G.R (G.R.. No. 162230, 162230, A p ril 28. 28. 2010, 2010, En Ban c [Del Ca stillo]),  the SC clarified ere] yet no consensus on the proper criteria for identifying identifying peremptory norms. It held: Even the invocation of ju of ju s cogens coge ns norms  norms and erga omnes obligations omnes obligations will not alter this analysis. Even if we sidestep the question question of whethe r ju s cogens coge ns   norms existed in 1951, petitioners have not deigned to show that the crimes committed by the Japanese army violated ju violated ju s cogens cogen s prohibitions at the time the Treaty of Peace was signed, or that the duty to prosecute perpetrators of international crimes is an erga omnes obligati omnes obligation on or has attained the status of ju  ju s cogens. cogen s.

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The term erga omnes (Latin: in relation to everyone)  in international law been used as a legal term describing obligations owed by States towards the community of states states as a whole. The concept was recognized by the ICJ in Barcelona Traction x x x. Such obligations derive, for example, in contemporary international law, fro the outlawing of acts of aggression, and of genocide, as also from the principles rules concerning the basic rights of the human person, including protection slavery and and racial discrimination. Some of the corresponding rights of have entered into the body of general international law ... others are cdfaferfi international instruments of a universal o r quasi-universal character. The Latin phrase, ‘erga omnes, ’ has  has sin since ce becom become e one of of theVa theVa lly in g le s of those sharing a belief in the emergence of a value-based intern 6^ f  6 l^si| 3lic order. However, as is so often the case, the reality is neithefsp clearnor so bright. Whatever the relevance of obligations erga  omnes^ag^fegal^roncept. its full potential remains to be realized in practice. concept of ius coaens. The term is closely connected w ith theJfttern theJfttern.. In international law, the term “jus cogens” , “compelling law”) refers to norms that command peremptory authority, §up< conflicting treaties and custom, sense that they are mandatory, Jus cogens norms are considered pei do not admit derogation, and can nly by general international norms of  equivalent authority. authority. Early strains of the  ju s co ge n? -cloctrine have existed since the 1700s, but peremptory norms began to attract greater scholarly attention with the publication of  Alfred von Verdros V erdross’s s’s influential 1937 article, Forbidden Treatie s in International Law. The recognition of ju s cogens coge ns  gained even more force in the 1050s and 1960s with the ILC’s preparation of the Vienna Convention on the Law of Treaties (VCLT). Though there was a consensus that certain international norms had attained the status of ju s cogens, the ILC was unable to reach a consensus on the proper criteria for identifying peremptory norms.  After  Afte r an extended ex tended debate over these the se and other oth er theories theor ies o f jus ju s cogens, cog ens, the ILC eluded ruefully in 1963 that “there is not as yet any generally accepted criterion to identify a general rule of international law as having the character of  ju s In a commentary accompanying the draft convention, the ILC indicated that le prudent course seems to be to x x x leave the full content of this rule to be worked out in State practice and in the jurisprudence of international tribunals.” tribunals.” Thus, Thus, while the existence of ju s cogens cogen s  in international law is undisputed, no consensus exists on its substance, beyond a tiny core of principles and rules. The Doctrine of Incorporation

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The The Province o f North North Cotabato Cotabato v. The The G overnment o f the the Re public o f the the Ph ilippine ilippine:: Peace Panel, G.R. No. 183591, 568 SCRA 402, October 14, 2008, En Banc (Carpio Morales) The right to self-determination of peoples has gone beyond mere treaty or convention; in fact, it has now been elevated into the status of a generally accepted of international lav£ However, this right to self-determination of peoples may be understood in two senses, k the right to internal self-determination (a people’s pursuit of its own political, economic, and cultural development within the fram ework o f an existing State), and the right t< t< self-determination (which consists of the assertion of a right to unilateral: as normally understood in international law, this right to self-determination merf rs to the right to internal self-deter self-determination mination.. The right to external externa l self-determinatiog invoked only in extreme cases, i.e., in i.e., in case of people under colonial rule, or in_, eople under  foreign domination or exploitation outside of a colonial context. The State The The Concept o f an Association or Asso ciated State State  An association  association  is formed when two states of unequaTpower voluntarily establish durable links. In the basic model, one state, the associate, associa te, delegates certain responsib ilities to the other, other, the principal, principal, while maintaining its international international status as a state. Free associations represent a middle ground ground between integration and and independence. Examples of states which maintain an associated state relationship with the United States are the newly-formed states of Micronesia and the Marshall Islands in the Pacific. In US constitutional and international practice, free association is understood as an international international association between sovereigns. The Compact of Free Association is a treaty treaty which is subordinate to the associated nation’s national constitution, and each party may terminate the association association consistent with the right of independence. It has been said that, that, with the admission of the US-associated states to the UN in 1990, the UN recognized that the American American m d M R F free association association is actually based based on an an underlying status status of independent n international practice, the “associated state” arrangement state” arrangement has usually been used as a tra^tio n^ kja ev ice of former colonies colonies on on their their way to full full independence independence.. Examples Examples of tes tha£4a>/e passed through the status of associated states as a transitional phase are , ^tTKitts-N evis-A ngui lla, Dominica, St. Lucia, Lucia, St. St. Vincent and Grenada. Grenada. All have ome independent states. (The (The Province o f North C otabato v. v. The The Governme nt Re pub lic o f the Ph ilippin es Peace Panel, Panel, G.R. G.R. No. 183591, 183591, 568 SCRA SCRA 402, 402, 14, 2008, En Banc [Carpio-Morales]) The Concept Constitution

of

“Association”

is

not

recognized

under

the

1987

Philippi ne

The 1987 Constitution provides that no province, city, or municipality, not even the  Autonomou  Auton omous s Region for Muslim Mindanao (ARMM) is recognized under our laws as having

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an “associative” relationshi p with the national government. Indeed, the concept implie powers that go beyond anything ever granted by the Constitution to any local or regional government. It also implies implies the recognition recognition of the associated entity as a state. The Constitution, however, does not contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence. (The Provinc e o f North Cotab ato v. Thpr~ Gove rnment o f the Rep ublic o f the the Ph ilippines Peace Pane Panel, l, G.R. .R. No. 1835 183591 91,, SCRA 402, October 14, 2008, En Banc [Carpio-Morales]) ' Sove reignty as an Element o f a State State Is sove reignty really absolute and all-encomp all-encomp assing? If not, not, what are are /I and limitations? While sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly or impliedly, impliedly, as a member of the family of nations. nations. By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are considere d to be automatically automa tically part of our own laws. One of the oldest and most fundamental rules in international law is pacta sunt servanda -   international agreements agreem ents must be performed in good faith. A state which has contracted contracte d valid international obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillmen t of the obligations. By their inherent nature, treaties really limit or restrict restrict the abso luteness of sovereignty. By their their voluntary act, nations may surren der some aspects of their state power in exchange for greater benefits granted by or derived from a convention o r pact. Afte r all, all, states, like individuals, individuals, live with with coequals, and in pursuit of mutually covenanted objectives and benefits, benefits, they also commonly agree to limit the the exercise of their their otherwise absolute rights. rights. Thus, treaties have been used to record agreements between States concerning such widely diverse matters as, for example, the lease of naval bases, the sale or cession of territory, the termination of war, the regulation of conduct of hostilities, the formation of alliances, the regulation of commercial relations, the settling of claims, the laying down of rules governing conduct in peace and the the establishment of international organizations. The sovereignty of a state therefore therefo re cannot in fact and in reality be considered consider ed absolute. Certain restrictio ns enter into the picture: ( 1) limitations imposed by the very nature of membership in the family of rations and (2) limitations imposed by treaty stipulations. (Tanada v. Angara, 272 SCRA ^8 ±M ay % ^9§ 7 [Pangani [Panganiban] ban])) Territory of States Pro fes so r Me rlin M. M. Maga llona, e t al. al. v. Hon. Edua rdo Erm ita, e t al., G.R. G.R. No. No. 18716 187167, 7, 655 SCRA 476, August 16, 2011, En Banc (Carpio) Diplomatic and Co nsular Immunities and Privileges

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Lian g v. People, 323 SCRA 692 (2000); (2000); 355 SCRA SCRA 125 (2001 (2001)) (Foc us on Justice Puno’s Conc urring Opinion) Opinion)

Extradition and Asylum Nationality and Statelessness Refugees

 A refugee  is a person who, owing to a well-founded fear of being reasons of race, religion, nationality, membership of a particular social gn opinion, is outside the country of his nationality and is unable or owinj unwilling to avail himself of the protection of that country; or who, not ality and being outside the co untry of his former habitual residence, is unal unal ig to such fear, is unwilling to return to it. (Convention Relating to the StatqpotRe\ es,  Art. 1 A[2]) (Magallona, (Magallona, Funda mentals o f Pub lic Internation al Law, Law, 20 20i The The Non-Refou lement Principle

rned rned ‘ i™ n y manner whatsoever to to The right of a refugee not to be expelled or be threatened on account of his the frontiers of territories where his life or fre race, religion, nationality, membership of a | l group or politica politicall opinion.” The prohibition of such expulsion or return obligation of States parties to the 'Magallona, Fundamentals of Public Convention Relating to the Status of Rd Intern ationa l Law, Law, 2005 Ed., Ed., p. 289) n Treaties Rene A.V. Saguisag,^t IMF. B r ecutive ecutive Secretary Paquito N. Ochoa, Jr., G.R. No. 212426, January 12, 2016, En Bam; (Sereno, CJ)

The Doctrine Doctrine o f State State Respo nsibility to Aliens  An important importan t premise premis e for this doctrine d octrine to be validl y invoked invo ked is that a State is under un der no legal obligation in international law to admit an alien in its territory. However, the moment it admits an alien, it is duty-bound to provide protection to that alien so that once the State is rfmiss in '^.performance of this duty and the alien dies, or suffers injury or loss, this could le » to liability liability on on the part of the Stat State. e. Requisites for this doctrine to apply: apply: 1. An act or omission in violation violatio n of international internationa l law; law; 2. Attributable Attrib utable to the State; 3. Causing damage or injury to a third State directly, directly, or indirectly, indirectly, to a national of the the third State. Conditions for the enforcement o f claims under this doctrine:  Address: U nit 2 , 4th Floor, Espafia Espafia Place Place Building, 1139 Adeli na St reet corne co rnerr Espafia Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com villasislawcenter(5 villasislawcenter(5>gmail.c >gmail.com om / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

1. 2. 3. 4. 5.

The nationality of the claim; Exhaustion Exhaustio n of local remedies; No waiver; No unreasonable delay in filing the claim; claim; and and No improper conduct on the part of the injured injured alien. alien. International Humanitarian Law (IHL)

International humanitarian law is the branch of public internation§ governs armed conflicts to the end that the use of violence is limited suffering is mitigated or reduced by regulating or limiting the means of pmtary and by protecting persons who do not or no longer participate in the hostilities Funda mentals o f Pu blic Interna tiona l Law, 2005 2005 ed., ed., p. 291)

5

International Humanitarian Law (IHL) encompasses bQjprrc principles and international treaties that seek to save lives and allevi^esbffi combatants and  ______ _ noncombatants during armed conflict. conflict. Its principal principal legal docu m ___ _ the  _____ :s „are Geneva Co nve ntio ns o f 1949, 1949, four treaties treaties signe signed d by almost eve rvna po n in the world. world. The Conventions define fundamental rights for combatants removed from the fighting due to injury, injury, illness illness,, or capture capture,, and for civil civilians ians.. The 1977 1977 Ad ditio na l Pro toco ls, which which supplement the Geneva Conventions, further expand thos e rights. rights. These are: Geneva Geneva Conventi Convention on tnW ie A n ^W a tio n o f the Condit Condition ion of the Wounded and and Sick Sick in Armed Force Forces s in ^ ^ F ie p o f August 12, 12, 1949 1949 (Firs (Firstt Genev Geneva a Convent Convention) ion);; for the^vrfelioration of the Condition of Wounded, Sick and of Armed Forces at Sea of August 12, 1949 (Second ative to the Treatment o f Prisoners of War of August 12, 12, convention); l&n Relative to the Protection of Civilian Persons in Time of 2,1949 (Fourth Geneva Convention); itional to the Geneva Conventions of 12 August 1949 and Relating Section of Victims of International Armed Conflicts (Protocol I) of 8 77; and col Additional to the Geneva Conventions of 12 August 1949 and Relating Protection of Victims of Non-International Armed Conflicts (Protocol II) of June 1977. HL is is not concerned with the lawfulness or unlaw fulness of armed armed conflict. In vkJBtion of the prohibition against the threat or use of force under international law, a state may engage in armed attack again st another state, resulting in armed conflict between them. The application of IHL in their conflict pertains solely to the fact of armed conflict as the use of force remains unlawful. unlawful. Armed conflict, in which IHL properly properly applies, may arise arise from from a legitimate use of force as when a multinational force of UN members engages in armed attack against a State by authority of the UN Security Council as an enforcement measure under Article 42 of the UN Charter. Charter. In either case, there will be victims of the conflict who  Address: U nit 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet co rne r Espaiia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com www.villasislawcenter.com /  / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com / www.remediallawdoctrines.blogspot.com  / [email protected] / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

must come under the protection of IHL, and there may be methods of warfare which come under the prohibition of IHL. IHL. Hence, Hence, the issue of lawfulness or unlawfulness of the the armed conflict is of no legal importance from the standpoint of IHL. (Magallona, Funda mentals o f Pu blic Intern ation al Law, Law, 2005 ed., ed., p. 293) 293) The The Principle o f Distinction  An important importa nt principle to be observed observe d under unde r IHL is the Principle of Distiy Under this principle, persons directly engaged in armed conflict must, at all times, times, between civilians and combatants; between civilian objects and military obj« only combatants and military objectives may be subject of attack. Categories Categories o f Arm ed C onflicts 1. International Armed Arme d Conflicts 2. Internal Internal or Non-international Non-international Armed Conflicts Conflicts 3. Wa r of National National Liberation Liberation War of National Liberation  An armed conflict confli ct may be of such natui; natui; colonial domination and alien occupation and^ right of self-determination.”

ich “peoples are fighting against ist regimes in the exercise of their 

This conflict involving the right of self-determination is an international armed conflict. It is so classified iaragraphs 3 and 4 of Protocol I. Under these provisions, this conflict wliicl sferred to as “war of national liberation,” is included in the classification .set out in' 2 common to the four Geneva Conventions of Pu blic Inte rnation al Law, 2005 ed., ed., p. 307) 1949 xx x . (Magallona, F (Magallona,  F< <

ational Criminal Court (ICC) The Rome Statuti established the International Criminal Court which “shall have the Jts   jurisdiction over persons for the most serious crimes of international shall be complementary to the national criminal jurisdictions.” (Article I, i jurisdiction covers the crime of genocide, crimes against humanity, war ie crime of aggression as defined in the Statute Statute (Article 5, 5, Rome Statute). Statute). The as opened for signature by all States in Rome on July 17, 1988 and had remained or signature until De cember 31, 2000 at the United Nations Headquarters in New York. York. Philippines signed the Statute Statute on December 28, 2000 x x x . Its provisions, however, however, require that it be subject to ratification, acceptance or approval of the signatory states (Article (Article 25, Rome Statute). (Pimentel, Jr. v. Office o f the Exe cutive Se cretary, 462 SCRA SCRA 622, 622, Ju ly 6, 200 2005, 5, En Banc [Puno]) The Roi

What offenses offenses fa ll under the juris dic tion o f the International Criminal Court (ICC) (ICC)? ?  Address: U nit 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet co rner Espafia Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.villasislawcenter.com  / www.facebook.c om/villasislawcenter / www.remediallawdoctrines.blogspot.com villasislawcenter(5>gm villasislawcenter(5>gmail.com ail.com / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

The International Criminal Court (ICC) shall have the power to exercise jurisdictio over persons for the most serious serious crimes of international international concern. Its jurisdiction covers the crime of genocide, crimes against humanity, war crimes and the crime of aggression as defined in the Statute (Article 5, Rome Statute). (Pimentel, Jr. v. Office of the Executive Secretary, 462 SCRA 622, July 6, 2005, En Banc [Puno]) What is the Principle of Complementarity in the Statute of the International Crim Court (ICC)? The tenth preambular paragraph of the ICC Statute emphasize International Criminal Court x x x shall be complementary to national crimij This principle principle becomes operative in in Article 1 of the Statute Statute.. This, he he correlated with the sixth preambular paragraph of the Statute which declareS^hat “iPTs the duty of every State to exercise its criminal jurisdiction over those resoonsipWWw^ernational crimes.” The principle of complementarity produces produces a co rre rr e la tio r^ ftf re ICTS ICTSU Uuris urisdi dict ctio ion n with with that of every state state over internat internationa ionall crimes under the ICC S t a t jf ^ The principle of compleme ntarity gives primacy to national jurisdiction x x x. The principle of ne bis in idem  idem  in Article 20, paragraph 37of ICC Statute strengthens complementarity, thus: Unless the proceedings in the national court is for the purpose of shielding the person concerned from liability, or not conducted independently or impartially, “no person who has been tried by another court for conduct... [constituting crimes within its  jurisdictio  juris dictio n] shall be tried by the Court with respect to th e same conduct cond uct x x x.” (Magallona, Fundamentals o f Public International La w [2005 ed ed.J)

The Law o f the Sea Sea The international international law o f the sea  sea  is generally defined as “a body of treaty rules and customary norms governing the uses of the sea, the exploitation of its resources, and the exercise of jurisdiction over maritime regimes. It is a branch of public international international law, law, regulating the relations of states with respect to the uses of the oceans.” (Merlin M. Magallona, A P rime r on the Law o f the Sea. Sea. 1997, 1997, p. 1) The UNCLOS is a multilateral multilateral treaty treaty which was opened for signature signa ture on December 10, 1982 1982 at Montego Bay, Jamaica. Jamaica . It was ratified by the Philippines in 1984 but came into force on November 16, 1994 upon the submission of the 60 " ratification. ratification.  j t The UNCLOS is a product of international negotiation that seeks to balance State ^Ts^vereignty (mare clausum)  clausum)  and the principle of freedom of the high seas (mare (mare liberum). Tna freedom to use the world’s marine waters is one of the oldest customary principle of terrftjidnal law (Anne Bardin, “ Coastal State ’s Jurisdiction Over Foreign Vess els” 14 Pace ’’ Jxev. 27, 28 [2002]). The UNCLOS gives to the coastal State sovereign rights in varying degrees degree s over the different zones of the sea which are: 1) internal waters, 2) territorial sea, 3) contiguous contiguo us zone, 4) exclusive econo mic zone, and 5) the high seas. It also gives coastal States more or less jurisdiction over foreign vessels depending on where the vessel is located (Id. At 29). Insofar as the internal waters and territorial sea is concerned, the Coastal States exercises exercise s sovereignty, subject to the UNCLOS and other rules of international law. Such

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sovereignty extends to the air apace over the territorial sea as well as to its bed and subsol (Art. 2, UNCLOS). (Most Rev. Pedro D. Arigo, et al. v. Scott H. Swift, et al., G.R. No. 206510, 206510, Sep tem ber 16, 16, 2014, 2014, En Ba nc [Villarama , Jr.])

International Environmental Law Background Information Information The Convention on Biological Diversity (CBD)

On December 29, 1993, the Convention on Biological Diversity force. This multilateral multilateral treaty recognized that “modern “modern biotechnology has*L human well-being if developed and used with with adequate safety measures for  for tnte tnte environment and human health.” Its main objectives, as spelled out in Article I, are the “conservation “conserva tion of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization utilization o f genetic resources.” (International Service for  the Acqu isition o f Agri-biotech A pplications, Inc. Inc. v. Greenpeac Greenpeace e Southeast Asia (Philipp ines ), e t al. al.,, GR No. 209271 209271,, D ecem ber 8, 8, 2015, 2015, En Ba nc [Villaram a]) The The Cartagena Cartagena Pro toco l

In January January 2000, an agreemen t was reached on the C artagena Protocol on Biosafety (Cartagena (Carta gena Protocol), a supplemental supplem ental to the CBD. The Cartagena Protocol aims “to contribute to ensuring an adequate level of the safe transfer, handling and use of living modified organisms resulting from modern biotechnology that may have adverse effects on the conservation and sustainable use of biological diversity, taking into account risks to human health, and specifically focusing on transboundary moveme nts.” On May 24, 2000, the Philippines signed the Cartagena Protocol, which came into force on September 11, 2003. On August 14, 2006, 2006, the Philippine Senate adopted Senate Senate Resolution No. 92 or the “Resolution Concurring in the Ratification o f the Cartagena Protocol Protocol on Biosafety (CPB) to the UN Convention on Biological Diversity.” (International Service fo r the Ac qu isition o f Agri-biotech Applications, Inc. v. Greenpeace Greenpeace Southeast Asia (Philippines), e tal., GRN o. 20927 209271, 1, Decemb er 8, 8, 2015, 2015, En Banc [Villarama [Villarama ]) Biotechnology

Biotechnology is a multi-disciplinary field which may be defined as “any technique •|§£t uses living organisms or substances from those organisms to make or modify a product, product, to 'improve plants or animals, or to develop microorganisms for specific uses.” Its many pplicatj^ns include agricultural production, livestock, industrial chemicals and - ^ nrfeceutic nrfeceuticals als.. (International Service for the Acquisition of Agri-biotech  A ff llic ll ic a ti o n s , Inc. Inc . v. Gre enpea en pea ce So uthe ut he as t A si a (Phil (P hilip ippin pin es ), e t al., a l., GR No. 209271, Decem ber 8, 8, 2015, 2015, En Ba nc [Villarama]) The Precautionary Principle

The precautionary principle originated in Germany in the 1960s, expressing the normative idea that governments are obligated to “foresee and forestall” harm to the  Address: U nit 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Ade lina St reet corne co rnerr Espafia Espafia Boulevard Sampaloc, Manila (Beside UST near Morayta Street) www.villasislawcenter.com / www.villasislawcenter.com  / www.facebook.com/villasislawcenter / www.remediallawdoctrines.blogspot.com [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626

environment. In the following decades, the precautionary precautio nary principle has served as normative guideline for policymaking by many national national governments. The Rio Declaration Declaration on Environment and Development, the outcome of the 1992 United Nations Conference on Environment and Development held in Rio de Janeiro, defines the rights of the people to be involved in the development of their economies, and the responsibilities of human beings to safeguard safegua rd the common environment. It states that the long term economic progr ess is onl; onl; ensured if it s linked with the protection of the environment. For the first time, precautionary approach was codified under Principle 15, which reads: In order to protect the environment, the precautionary approach shall be Vwijely applied by States accord ing to their capabilities. Where there are threa ts of seri< or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. Principle 15 codified for the first time at the global level the precautionary approach, which indicates that lack of scientific certainty is no reason to postpone action to avoid potentially potentia lly serious seriou s or irreversible harm to the environment. It has been incorporated in various variou s international legal instruments. The Cartagena Protocol on Biosafety to the Convention on Biological Diversity, finalized and adopted in Montreal on January 29, 2000, establishes an international regime primarily aimed at regulating trade in GMOs intended for release into the environment, in accordance with Principle 15 of the Rio Declaration on Environment and Development.  \ .. The Rules (of Procedure for Envirohrrtesfl^aLCases) incorporated the principle in Part J \ f  V V, Rule 20.

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 Address: U nit 2 ,4th Floor, Espafia Espafia Place Place Building, 1139 Adelina St reet co rne r Espana Espana Boulevard Sampaloc, Manila (Beside UST near Morayta Street) * www.villasislawcenter.com www.villasislawcenter.com /  / www.facebook.c om/villasislawcenter / www.remediallawdoctrines.blogspot.com / www.remediallawdoctrines.blogspot.com  / [email protected] / [email protected]  / [email protected] Tel. No. (02) 241-4830 / Cel. Nos. Nos. (0949) 343-6092; (0922) 898-8626