REMINDERS
for
POLITICAL LAW and PUBLIC INTERNATIONAL LAW
2022
CARLO L. CRUZ
A
CONSTITUTIONAL LAW
I. BASIC PRINCIPLES
Separation of Powers
The cardinal postulate explains that the three branches must discharge their respective
functions within the limits of authority conferred by the Constitution. Under the principle of
separation of powers, neither Congress, the President, nor the Judiciary may encroach on fields
allocated to the other branches of government. (Philippine Coconut Federation, Inc. v. Republic, 600
SCRA 102)
[Note: The doctrine of separation of powers is intended to prevent a concentration of authority in
one person or group of persons that might lead to an irreversible error or abuse in its exercise to the
detriment of our republican institutions. According to Justice Laurel, it is intended to secure action,
forestall over-action, to prevent despotism and to obtain efficiency. (Pangasinan Transportation Co. v. PSC,
40 O.G., 8th Supp. 67)]
The legislature is generally limited to the enactment of laws and may not enforce or
apply them; the executive to the enforcement of laws and may not enact or apply them; and the
judiciary to the application of laws and may not enact or enforce them. (Bengzon v. Drilon, 208
SCRA 133)
Thus, courts cannot limit the application or coverage of a law, nor can it impose
conditions not provided therein. To do so constitutes judicial legislation. (Fort Bonifacio
Development Corporation v. Commissioner of Internal Revenue, 679 SCRA 566)
It has been ruled that ―the requirement that the implementing rules of a law be subjected
to approval by Congress as a condition for their effectivity violates the cardinal constitutional
principles of bicameralism and the so-called rule on presentment.‖ Thus, ―every bill passed by
Congress must be presented to the President for approval or veto. In the absence of presentment
to the President, no bill passed by Congress can become a law. In this sense, law-making under
the Constitution is a joint act of the Legislature and of the Executive. Assuming that legislative
veto is a valid legislative act with the force of law, it cannot take effect without such
presentment even if approved by both chambers of Congress.‖ Accordingly, ―from the moment
1
the law becomes effective, any provision of law that empowers Congress or any of its members
to play any role in the implementation or enforcement of the law violates the principle of
separation of powers and is thus unconstitutional. Under this principle, a provision that
requires Congress or its members to approve the implementing rules of a law after it has
already taken effect shall be unconstitutional, as is a provision that allows Congress or its
members to overturn any directive or ruling made by the members of the executive branch
charged with the implementation of the law. (Cruz and Cruz, Philippine Political Law, pages 289290, 2014 Edition; see Abakada Guro Party List v. Purisima, G.R. No. 166715 August 14, 2008, 562
SCRA 251)
A law subjecting COMELEC rules (implementing RA 9189) to approval by a
Congressional oversight committee is invalid; constitutes a legislative veto (which entitles
Congress, pursuant to its ―oversight functions,‖ to disapprove [or approve] administrative
regulations promulgated by the Executive Branch, pursuant to a validly delegated power, in the
course of its enforcement of a duly enacted law); contradicts the independence of the
COMELEC; and pre-empts the judiciary in its exercise of its power of review. (See Macalintal v.
COMELEC, G.R. 157013, July 10, 2003, 405 SCRA 614)
Courts ―cannot amplify the scope of RA No. 9903 on the ground of equal protection, and
acquit the petitioner and other delinquent employers like him; it would in essence be an
amendment of RA No. 9903, an act of judicial legislation abjured by the trias politica principle
(refers to the principle of separation of powers among the three branches of the government).‖ (Mendoza
v. People, G.R. No. 183891, October 19, 2011)
Unless the Constitution provides otherwise, the Executive department should
exclusively exercise all roles and prerogatives which go into the implementation of the national
budget as provided under the GAA as well as any other appropriation law…. Clearly, these
post-enactment measures which govern the areas of project identification, fund release and
fund realignment are not related to functions of congressional oversight and, hence, allow
legislators to intervene and/or assume duties that properly belong to the sphere of budget
execution. Indeed, by virtue of the foregoing, legislators have been, in one form or another,
authorized to participate in "the various operational aspects of budgeting," including "the
evaluation of work and financial plans for individual activities" and the "regulation and release
of funds" in violation of the separation of powers principle. (Belgica v. Executive Secretary, G.R.
No. 208566, November 19, 2013)
That Congress has been vested with the authority to define, prescribe, and apportion the
jurisdiction of the various courts under Section 2, Article VIII xxx, as well as to create statutory
courts under Section 1, Article VIII xxx, does not result in an abnegation of the Court‘s own
power to promulgate rules of pleading, practice, and procedure under Section 5 (5), Article VIII
xxx. Albeit operatively interrelated, these powers are nonetheless institutionally separate and
distinct, each to be preserved under its own sphere of authority. When Congress creates a court
and delimits its jurisdiction, the procedure for which its jurisdiction is exercised is fixed by the
Court through the rules it promulgates. The first paragraph of Section 14, RA 6770 is not a
jurisdiction-vesting provision, as the Ombudsman misconceives, because it does not define,
prescribe, and apportion the subject matter jurisdiction of courts to act on certiorari cases; the
certiorari jurisdiction of courts, particularly the CA, stands under the relevant sections of BP 129
2
which were not shown to have been repealed. Instead, through this provision, Congress
interfered with a provisional remedy that was created by this Court under its duly promulgated
rules of procedure, which utility is both integral and inherent to every court‘s exercise of
judicial power. Without the Court‘s consent to the proscription, as may be manifested by an
adoption of the same as part of the rules of procedure through an administrative circular issued
therefor, there thus, stands to be a violation of the separation of powers principle. (CarpioMorales v. Court of Appeals, G.R. No. 217126-27, November 10, 2015)
Of course, the second paragraph of Section 14, RA 6770‘s extremely limited restriction
on remedies is inappropriate since a Rule 45 appeal – which is within the sphere of the rules of
procedure promulgated by this Court – can only be taken against final decisions or orders of
lower courts, and not against ―findings‖ of quasi-judicial agencies. As will be later elaborated
upon, Congress cannot interfere with matters of procedure; hence, it cannot alter the scope of a
Rule 45 appeal so as to apply to interlocutory ―findings‖ issued by the Ombudsman. More
significantly, by confining the remedy to a Rule 45 appeal, the provision takes away the remedy
of certiorari, grounded on errors of jurisdiction, in denigration of the judicial power
constitutionally vested in courts. In this light, the second paragraph of Section 14, RA 6770 also
increased this Court‘s appellate jurisdiction, without a showing, however, that it gave its
consent to the same. The provision is, in fact, very similar to the fourth paragraph of Section 27,
RA 6770 (as above-cited), which was invalidated in the case of Fabian v. Desierto (Fabian).
(Carpio-Morales v. Court of Appeals, G.R. No. 217126-27, November 10, 2015)
Plea bargaining has been defined as "a process whereby the accused and the prosecution
work out a mutually satisfactory disposition of the case subject to court approval." The rules on
plea bargaining neither create a right nor take away a vested right. Instead, it operates as a
means to implement an existing right by regulating the judicial process for enforcing rights and
duties recognized by substantive law and for justly administering remedy and redress for a
disregard or infraction of them. It is therefore within the exclusive rule-making power of the
Supreme Court. (Estipona v. Lobrigo, G.R. No. 226679, August 15, 2017)
A law authorizing the Legal Education Board to prescribe minimum standards for law
admission and minimum qualifications of faculty members, the basic curricula for the course of
study aligned to the requirements for admission to the Bar, law practice and social
consciousness is violative of academic freedom, guaranteed under the provisions of Article XIV,
Section 5 (2) of the Constitution, which consists of four essential freedoms to determine for itself
on academic grounds: (1) who may teach; (2) what may be taught; (3) how it shall be taught;
and (4) who may be admitted to study. (Camacho vs. Corresis, G.R. No. 103142., November 8,
1993; 227 SCRA 591, cited in Pimentel v. Executive Secretary and Legal Education Board, G.R. No.
230642, September 10, 2019)
A law authorizing the Legal Education Board to establish a law practice internship as a
requirement for taking the Bar which a law student shall undergo anytime during the law
course and to adopt a system of continuing legal education for lawyers, or those who have
already been admitted to the practice of law, is an encroachment of the rule-making power of
the Supreme Court under Article VII, Section 5 (5) of the Constitution, under which, it has the
sole authority to promulgate rules concerning the practice of law. (Pimentel v. Executive Secretary
and Legal Education Board, G.R. No. 230642, September 10, 2019)
3
Principle of Checks and Balances
Under this principle, one department is allowed to resist encroachments upon its
prerogatives or to rectify mistakes or excesses committed by the other departments.
Examples: The lawmaking power of Congress is checked by the President through his
veto power, which in turn may be overridden by the legislature. (Constitution, Article VI,
Section 27[2]) The President may nullify a conviction in a criminal case by pardoning the
offender. (Ibid., Article VII, Section 19) Congress may limit the jurisdiction of courts. (Id., Article
VIII, Section 2) The judiciary has the power declare invalid an act done by the Congress, the
President and his subordinates, or the Constitutional Commissions. (Id., Article VIII, Section V,
[1] and [2], and Article IX-A, Section 7)
[Note: The President‘s ―disapproval of a bill, commonly known as a veto, is essentially a
legislative act.‖ (Bengzon v. Secretary of Justice and Insular Auditor, 62 Phil. 912, cited in Belgica v. Executive
Secretary, G.R. No. 208566, November 19, 2013)]
Sovereignty
Sovereignty is the supreme and uncontrollable power inherent in a State by which that
State is governed. Sovereignty is permanent, exclusive, comprehensive, absolute, indivisible,
inalienable and imprescriptible.
Legal sovereignty is the authority which has the power to issue final commands whereas
political sovereignty is the power behind the legal sovereign, or the sum of the influences that
operate upon it.
Internal sovereignty refers to the power of the State to control its domestic affairs. External
sovereignty, which is the power of the State to direct its relations with other States, is also known
as independence.
[Note: In The Province of North Cotabato v. The Government of the Republic of the Philippines Peace
Panel on Ancestral Domain (G.R. No. 183591, October 14, 2008, 568 SCRA 402), the Supreme Court, citing
the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and
Cultural Rights, remarked that the ―right to self-determination‖ pertains to the right of States to ―freely
determine their political status and freely pursue their economic, social, and cultural development.‖ It
thereafter stressed that ―internal self-determination‖ refers to ―a people‘s pursuit of its political,
economic, social and cultural development within the framework of an existing state,‖ while ―external
self-determination‖ provides for ―the establishment of a sovereign and independent State, the free
association or integration with an independent State or the emergence into any other political status
freely determined by a people.‖]
Sovereignty is the possession of sovereign power (See BLACK'S LAW DICTIONARY
1523 (9th ed. 2009), while jurisdiction is the conferment by law of power and authority to apply
the law. (See BLACK'S LAW DICTIONARY 927 (9th ed. 2009) (Saguisag v. Executive Secretary, G.
R. No. 212426, January 12, 2016)
4
Sovereignty is not deemed suspended although acts of sovereignty cannot be exercised
by the legitimate authority, as during the Japanese Occupation. Then, political laws, like the
Constitution, were merely suspended, subject to revival under the jus postliminium upon the end
of the occupation. Suspension of political laws affects only the civilians, and not the soldiers or
―enemies in arms.‖ (Ruffy v. Chief of Staff, 75 Phil. 875) Said suspension also does not apply to
the law on treason (Laurel v. Misa, 77 Phil. 856). Non-political laws, like the Civil Code, remain
effective, unless changed by the belligerent occupant. Judicial decisions, such as a conviction for
defamation, are valid during a belligerent occupation except those of a political complexion.
Thus, those convicted for treason against the Japanese forces are entitled to be released upon the
end of the occupation. (Peralta v. Director of Prisons, 75 Phil. 285)
When there is a change of sovereignty, the political laws of the former sovereign are not
merely suspended but abrogated. Non-political laws, by contrast, continue in operation, for the
reason also that they regulate private relations only, unless they are changed by the new
sovereign or are contrary to its institutions.
Thus, the Supreme Court acquitted in People v. Perfecto (43 Phil.887) an accused who had
written an editorial against the Philippine Senate and was prosecuted under the Spanish Penal
Code. It held that the particular article of the said Code had been automatically abrogated,
being political in nature, upon the advent of American sovereignty. A similar ruling was held in
connection with Article 14 of the Code of Commerce prohibiting judges from engaging in
commerce, which was characterized as political in nature and was therefore considered
abrogated with the end of Spanish rule in the country. (Macariola v. Asuncion, 114 SCRA 77)
Conversely, a debt incurred during the Spanish regime was held to be still enforceable against
the city even after the change to American sovereignty since the obligation was assumed by the
city in its private or proprietary character. (Vilas v. City of Manila, 229 U.S. 345)
From the text of EDCA itself, Agreed Locations are territories of the Philippines that the
U.S. forces are allowed to access and use. By withholding ownership of these areas and
retaining unrestricted access to them, the government asserts sovereignty over its territory. That
sovereignty exists so long as the Filipino people exist. (Saguisag v. Executive Secretary, G. R. No.
212426, January 12, 2016)
An act of State is one done by the sovereign power of a country, or by its delegate, within
the limits of the power vested in him. An act of State cannot be questioned or made the subject
of legal proceedings in a court of law. (Black‘s Law Dictionary, 4th ed., 44) With particular
reference to Political Law, an act of State is an act done by the political departments of the
government and not subject to judicial review. An illustration is the decision of the President in
the exercise of his diplomatic power to extend recognition to a newly-established foreign State
or government.
(Note: See Rosas v. Montor (G.R. No. 204105, October 14, 2015), where the Supreme Court stated:
―We have stated that the power to deport aliens is an act of State, an act done by or under the authority of
the sovereign power. It is a police measure against undesirable aliens whose continued presence in the
country is found to be injurious to the public good and the domestic tranquility of the people.‖)
5
State Immunity
The rule that a state may not be sued without its consent, now expressed in Article XVI,
Section 3, of the 1987 Constitution, is one of the generally accepted principles of international
law that we have adopted as part of the law of our land under Article II, Section 2. xxx. Even
without such affirmation, we would still be bound by the generally accepted principles of
international law under the doctrine of incorporation. Under this doctrine, as accepted by the
majority of states, such principles are deemed incorporated in the law of every civilized state as
a condition and consequence of its membership in the society of nations. Upon its admission to
such society, the state is automatically obligated to comply with these principles in its relations
with other states. (Arigo v. Swift, G.R. No. 206510, September 16, 2014)
The principle of sovereign equality of States is available to foreign states insofar as they are
sought to be sued in the courts of the local state. (Syquia v. Almeda Lopez, 84 Phil. 312)
A civil complaint against the Embassy of the Holy See was dismissed after the
Department of Foreign Affairs had officially certified that it is a duly accredited diplomatic
mission to the Republic of the Philippines exempt from local jurisdiction, and therefore entitled
to invoke immunity from suit. (Holy See v. Rosario, 238 SCRA 524)
There are two conflicting concepts of sovereign immunity, each widely held and firmly
established. According to the classical or absolute theory, a sovereign cannot, without its consent,
be made a respondent in the courts of another sovereign. According to the newer or restrictive
theory, the immunity of the sovereign is recognized only with regard to public acts or acts jure
imperii of a state, but not with regard to private acts or acts jure gestionis. (Holy See v. Rosario, 238
SCRA 524, 535, cited in China National Machinery & Equipment Corporation v. Sta. Maria, 665
SCRA 189)
As it stands now, the application of the doctrine of immunity from suit has
been restricted to sovereign or governmental activities (jure imperii). The mantle of state
immunity cannot be extended to commercial, private and proprietary acts (jure gestionis). (JUSMAG
v. National Labor Relations Commission, 239 SCRA 224)
[Note: The restrictive application of State immunity is proper only when the proceedings arise out
of commercial transactions of the foreign sovereign, its commercial activities or economic affairs; a State
may be said to have descended to the level of an individual and can thus be deemed to have tacitly given
its consent to be sued only when it enters into business contracts. It does not apply where the contract
relates to the exercise of its sovereign functions. (United States of America v. Ruiz, 221 Phil. 179)]
[Note: A suit for damages against officers of the US Government for defamatory remarks (made
by officers of the United States Government acting on behalf of that government and within the scope of
their authority) was dismissed because it was considered as a suit against the State. (Sanders v. Veridiano,
162 SCRA 88)]
In a complaint for illegal dismissal with the NLRC against the German Agency for
Technical Cooperation (GTZ), the latter moved to dismiss the same on the ground that the Labor
Arbiter had no jurisdiction over the case, as its acts were undertaken in the discharge of the
governmental functions and sovereign acts of the Government of the Federal Republic of
6
Germany and that it is ―the implementing agency of the Government of the Federal Republic of
Germany. The Court ruled that ―GTZ consistently has been unable to establish with satisfaction
that it enjoys the immunity from suit generally enjoyed by its parent country, the Federal
Republic of Germany. Assuming that characterization is correct, it does not automatically invest
GTZ with the ability to invoke State immunity from suit.‖ (German Agency for Technical
Cooperation v. Court of Appeals, 585 SCRA 150)
CNMEG cannot claim immunity from suit, even if it contends that it performs
governmental functions. Its designation as the Primary Contractor does not automatically grant it
immunity, just as the term ―implementing agency‖ has no precise definition for purposes of
ascertaining whether GTZ was immune from suit. Although CNMEG claims to be a governmentowned corporation, it failed to adduce evidence that it has not consented to be sued under
Chinese law. Thus, following this Court‘s ruling in Deutsche Gesellschaft, in the absence of
evidence to the contrary, CNMEG is to be presumed to be a government-owned and -controlled
corporation without an original charter. As a result, it has the capacity to sue and be sued under
Section 36 of the Corporation Code. (China National Machinery & Equipment Corporation v. Sta.
Maria, 665 SCRA 189)
[Note: The use of the term ―state corporation‖ to refer to CNMEG was only descriptive of its
nature as a government-owned and/or -controlled corporation, and its assignment as the Primary
Contractor did not imply that it was acting on behalf of China in the performance of the latter‘s sovereign
functions. xxx. Thus, piecing together the content and tenor of the Contract Agreement, the
Memorandum of Understanding dated 14 September 2002, Amb. Wang‘s letter dated 1 October 2003, and
the Loan Agreement would reveal the desire of CNMEG to construct the Luzon Railways in pursuit of a
purely commercial activity performed in the ordinary course of its business. Even assuming arguendo that
CNMEG performs governmental functions, such claim does not automatically vest it with immunity. (China
National Machinery & Equipment Corporation v. Sta. Maria, 665 SCRA 189)]
It is the Department of Foreign Affairs (DFA) which can make a determination of
immunity from suit, which may be considered as conclusive upon the courts. (Department of
Foreign Affairs (DFA) v. National Labor Relations Commission (NLRC), 330 Phil 573) This authority
is exclusive to the DFA. (Deutsche Gesellschaft Für Technische Zusammenarbeit (GTZ) v. CA, (German
Agency for Technical Cooperation v. Court of Appeals), 585 SCRA 150)
The case is premature. The money claim against the Republic should have been first
brought before the Commission on Audit. xxx. The Writ of Execution and Sheriff De Jesus'
Notice violate this Court's Administrative Circular No. 10-2000 and Commission on Audit
Circular No. 2001-002, which govern the issuance of writs of execution to satisfy money
judgments against government. xxx. As a rule, public funds may not be disbursed absent an
appropriation of law or other specific statutory authority. Commonwealth Act No. 327, as
amended by Presidential Decree No. 1445, requires that all money claims against government
must first be filed before the Commission on Audit, which, in turn, must act upon them within
60 days. Only when the Commission on Audit rejects the claim can the claimant elevate the
matter to this Court on certiorari and, in effect, sue the state. xxx. (Roxas v. Republic Real Estate
Corporation, G.R. No. 208205, June 1, 2016)
[Note: The situation in this case, however, is different from these previous cases. Petitioner's
Board of Trustees already issued the Resolution on September 23, 1992 for the release of funds to pay
7
separation benefits to terminated employees of Bicolandia Sugar Development Corporation. Private
respondents' checks were released by petitioner to the Arbitration Branch of the Labor Arbiter in 1992.
Under these circumstances, it is presumed that the funds to be used for private respondents' separation
benefits have already been appropriated and disbursed. This would account for why private respondents'
co-complainants were able to claim their checks without need of filing a separate claim before the
Commission on Audit. In this instance, private respondents' separation benefits may be released to them
without filing a separate money claim before the Commission on Audit. It would be unjust and a
violation of private respondents' right to equal protection if they were not allowed to claim, under the
same conditions as their fellow workers, what is rightfully due to them. (Republic v. National Labor
Relations Commission, G.R. No. 174747, March 9, 2016)]
[Note: To emphasize, the COA's jurisdiction over final money judgments rendered by the courts
pertains only to the execution stage. The COA's authority lies in ensuring that public funds are not
diverted from their legally appropriated purpose to answer for such money judgments. And rightly so
since the COA is tasked to guarantee that the enforcement of these final money judgments be in accord
with auditing laws which it ought to implement. (Taisei Shimizu Joint Venture v. Commission on Audit, G.R.
No. 238671, June 2, 2020)]
[Note: Even if we broadly interpret the COA's jurisdiction as including all kinds of money claims,
it cannot take cognizance of factual and legal issues that have been raised or could have been raised in a
court or other tribunal that had previously acquired jurisdiction over the same. To repeat, the COA's
original jurisdiction is actually limited to liquidated claims and quantum meruit cases. It cannot interfere
with the findings of a court or an adjudicative body that decided an unliquidated money claim involving
issues requiring the exercise of judicial functions or specialized knowledge and expertise which the COA
does not have in the first place.
Once judgment is rendered by a court or tribunal over a money claim involving the State, it may
only be set aside or modified through the proper mode of appeal. It is elementary that the right to appeal
is statutory. There is no constitutional nor statutory provision giving the COA review powers akin to an
appellate body such as the power to modify or set aside a judgment of a court or other tribunal on errors
of fact or law. (Taisei Shimizu Joint Venture v. Commission on Audit, G.R. No. 238671, June 2, 2020)]
The DOTC encroached on the respondents' properties when it constructed the local
telephone exchange in Daet, Camarines Norte. The exchange was part of the RTDP pursuant to
the National Telephone Program. xxx. Therefore, we agree with the DOTC's contention that
these are acts jure imperii that fall within the cloak of state immunity. However, as the
respondents repeatedly pointed out, this Court has long established in Ministerio v CFI, Amigable
v. Cuenca, the 2010 case Heirs of Pidacan v. ATO, and more recently in Vigilar v. Aquino that the
doctrine of state immunity cannot serve as an instrument for perpetrating an injustice to a
citizen. xxx. We hold, therefore, that the Department's entry into and taking of possession of the
respondents' property amounted to an implied waiver of its governmental immunity from suit.
We rule that the Republic is not immune from suit in the present case. (Department of
Transportation and Communication v. Sps. Abecina, G.R. No. 206484, June 29, 2016)
Fundamental Powers of the State
The three inherent powers of the State are similar in the following respects:
(1) They are inherent in the State and may be exercised by it without need of express
constitutional grant.
8
(2) They are not only necessary but indispensable. The State cannot continue or be
effective unless it is able to exercise them.
(3) They are methods by which the State interferes with private rights.
(4) They all presuppose an equivalent compensation for the private rights interfered
with.
(5) They are exercised primarily by the legislature. (Constitutional Law, Cruz and
Cruz, 2015 Edition, page 80-81)
The three inherent powers of the State differ from each other in the following ways:
(1) The police power regulates both liberty and property. The power of eminent
domain and the power of taxation affect only property rights.
(2) The police power and the power of taxation may be exercised only by the
government. The power of eminent domain may be exercised by some private entities.
(3) The property taken in the exercise of the police power is destroyed because it is
noxious or intended for a noxious purpose. The property taken under the power of
eminent domain and the power of taxation is intended for a public use or purpose and is
therefore wholesome.
(4) The compensation of the person subjected to the police power is the intangible
altruistic feeling that he has contributed to the general welfare. The compensation
involved in the other powers is more concrete, to wit, a full and fair equivalent of the
property expropriated or protection and public improvements for the taxes paid.
(Constitutional Law, Cruz and Cruz, 2015 Edition, page 81)
Police Power
To be considered reasonable, the government's exercise of police power must satisfy the
"valid object and valid means" method of analysis: first, the interest of the public generally, as
distinguished from those of a particular class, requires interference; and second, the means
employed are reasonably necessary to attain the objective sought and not unduly oppressive
upon individuals. (Association of Medical Clinics for Overseas Workers, Inc. v. GCC Approved
Medical Centers Association, Inc., G.R. No. 207132, December 6, 2016)
Lawful Subjects: The interests of the public generally, as distinguished from those of a
particular class, require its exercise.
The Oil Price Stabilization Fund (Osmeña v. Orbos, G.R. No. 99886, March 31, 1993, 220
SCRA 703; Valmonte v. Energy Regulatory Board, G.R. Nos. L-79601-03, June 23, 1988, 162 SCRA
521) and the Sugar Stabilization Fund (Gaston v. Republic Planters Bank, L-77194, March 15, 1988,
158 SCRA 626); the so-called Universal Charge, which is a ―Special Trust Fund‖ recognized as
having ―the characteristics of a tax and is collected to fund the operations‖ of the National
Power Corporation, is an exaction in the exercise of the State‘s police power. (Gerochi v.
Department of Energy, G.R. No. 159796, July 17, 2007, 527 SCRA 696); the twenty percent discount
required to be given by ―all establishments relative to the utilization of services in hotels and
similar lodging establishments, restaurants and recreation centers, and purchase of medicines in
all establishments for the exclusive use or enjoyment of senior citizens, including funeral and
burial services for the death of senior citizens‖ [is an exercise of the police power, and not the
9
power of eminent domain] (Manila Memorial Park, Inc. v. Secretary of the Department of Social
Welfare and Development, G.R. No. 175356, December 3, 2013, 711 SCRA 302); Section 4 of R.A.
No. 9257 which grants 20% discount on the purchase of medicine of senior citizens (Drugstores
Association of the Philippines v. National Council on Disability Affairs, G.R. No. 194561, September
14, 2016); the PWD mandatory discount on the purchase of medicine (Drugstores Association of
the Philippines v. National Council on Disability Affairs, G.R. No. 194561, September 14, 2016);
regulation of dance halls (U.S. v. Rodriguez, 38 Phil. 759), movie theaters (People v. Chan, 65 Phil.
611 [1938]), gas stations (Javier v. Earnshaw, 64 Phil. 626 [1937]), and cockpits (Pedro v.
Provincial Board of Rizal, 56 Phil. 123 [1931]) (See White Light Corporation v. City of Manila, G.R.
No. 122846, January 20, 2009, 576 SCRA 416); the power to deport aliens (an act of State, an act
done by or under the authority of the sovereign power. (Rosas v. Montor, G.R. No. 204105,
October 14, 2015); the authority of a municipality to regulate garbage falls within its police
power to protect public health, safety, and welfare. (Ferrer v. Bautista, G.R. No. 210551, June 30,
2015); the prohibition against the referral decking system is consistent with the State's exercise
of the police power to prescribe regulations to promote the health, safety, and general welfare of
the people. (Association of Medical Clinics for Overseas Workers, Inc. v. GCC Approved Medical
Centers Association, Inc., G.R. No. 207132, December 6, 2016); a prohibition against all forms of
gambling (Stone v. Mississippi, 101 US 814); the regulation of billboards, and even the
prohibition of billboards offensive to sight or distracting the attention of motorists. (Churchill &
Tait v. Rafferty, 32 Phil. 580); the prices of prime commodities (Yakus v. White, 321 US 414); sixyear-old cabs (Taxicab Operators of Metro Manila v. Board of Transportation, 119 SCRA 597); barber
shops and massages services (Velasco v. Villegas, 120 SCRA 568); the use by heavy vehicles of
public streets (Bautista v. Juinio, 127 SCRA 329); video piracy (Tio v. Videogram Regulatory Board,
151 SCRA 208); the opening for public use of private roads inside subdivisions (Sangalang v.
IAC, 176 SCRA 719); the practice of medicine (Imbong v. Ochoa G.R. No. 204819, April 8, 2014,
721 SCRA 146; see also Dept. of Education v. San Diego, G.R. No. 89572, December 21, 1989, 180
SCRA 533); the provision of free air time for the COMELEC (Telecommunications and Broadcast
Attorneys of the Philippines v. COMELEC, 289 SCRA 337); the Generics Act (Del Rosario v.
Bengzon, 180 SCRA 521);) the keeping of books of account (Yu Cong Eng v. Trinidad, 271 US 500);
zoning ordinances (Social Justice Society v. Atienza, 545 SCRA 92; Ortigas & Co. v. Feati Bank, 94
SCRA 533); ordinances requiring the construction of arcades which would provide safe and
convenient passages along sidewalks for commuters and pedestrians (Gancayco v. City
Government of Quezon City, G.R. No. 177807, October 11, 2011, 658 SCRA 853); the regulation of
rates imposed by public utilities (Surigao del Norte Electric Cooperative, Inc. v. Energy Regulatory
Commission, G.R. No. 183626, October 4, 2010, 632 SCRA 96); an executive ban against the
importation of used motor vehicles to protect the local car manufacturing industry (Executive
Secretary v. South Wing Heavy Industries, Inc., G.R. No. 164171, February 20, 2006, and Executive
Secretary v. Motor Vehicle Importers Association of Subic Bay Freeport, Inc., G.R. No. 168741,
February 20, 2006, both reported in 518 Phil. 103, 482 SCRA 673, cited in Executive Secretary v.
Forerunner Multi Resources, Inc., G.R. No. 199324, January 7, 2013, 688 SCRA 73); a law altering
the remedy or right of redemption, by shortening the same in cases of foreclosures of mortgages
covering properties used for industrial or commercial purposes, notwithstanding the
provisions of contracts already in place upon its effectivity (Goldenway Merchandising Corporation
v. Equitable PCI Bank, G.R. No. 195540, March 13, 2013, 693 SCRA 439); a law requiring the
presentation by applicants for marriage licenses of a certificate of compliance issued for free by
the local Family Planning Office certifying that they had duly received adequate instructions
and information on responsible parenthood, family planning, breastfeeding and infant nutrition
10
prior to the issuance of said licenses. (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014, 721 SCRA
146); Batas Pambansa Blg. 22 (Lozano v. Martinez, G.R. No. L-63419, December 18, 1986, 146
SCRA 323); and the registration of voters (Kabataan Party-List v. Commission on Elections, G.R.
No. 221318, December 16, 2015)
Lawful Means: The means employed are reasonably necessary for the accomplishment of the
purpose and not unduly oppressive upon individuals.
Among the laws, rules and regulations which have been acknowledged as providing for
lawful means for attaining police power objectives are those establishing leprosariums for
lepers (Lorenzo v. Director of Health, 50 Phil. 595); requiring reasonable working hours and
minimum wages (Ramos v. Poblete, 73 Phil. 241), full-time pharmacists in drug stores (Roschen v.
Ward, 277 US 337), and blood tests for couples before issuance of a marriage license (Gould v.
Gould, 61 Atl. 604); limiting the capacity of common carriers, or theaters (People v. Chan, 65 Phil.
611), and directing the compulsory sterilization of imbeciles (Buck v. Bell, 274 US 195)
[Note: Unlawful Means: an executive order prohibiting the inter-provincial transport of carabaos to
prevent their indiscriminate slaughter (Ynot v. IAC, 148 SCRA 659); a prohibition against the use of a
material known as shoddy for the making of mattresses, there being no basis for fear that it was inimical
to the health of the user (Weaver v. Palmer Bros. Co., 270 US 402); and a prohibition against the distribution
of handbills in public places (which was annulled on the ground of freedom of expression) (Jamison v.
Texas, 318 US 413); ordinance disallowing the operation of sauna parlors, massage parlors, karaoke bars,
beerhouses, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and inns in the
Ermita-Malate area. (City of Manila v. Laguio, G.R. No. 118127, April 12, 2005, 455 SCRA 308); ordinance
prohibiting wash-up rate arrangements in motels, etc. (White Light Corporation v. City of Manila (G.R. No.
122846, January 20, 2009, 576 SCRA 416); ordinance requiring at least six percent of the total areas of
memorial park cemeteries to be ―set aside for charity burial of deceased persons who are paupers and
have been residents of Quezon City for at least 5 years prior to their death, to be determined by
competent City Authorities‖ (City Government of Quezon City v. Ericta, G.R. No. L-34915 June 24, 1983, 122
SCRA 759); Ordinance No. 192 (which required, among others, all fences to be eighty percent ―see thru‖
and prohibiting walls and fences to be ―built within the five (5) meter parking area allowance located
between the front monument line and the building line of commercial and industrial establishments and
educational and religious institutions‖) was passed by the City Council of Marikina in the apparent
exercise of its police power. xxx. Ordinance No. 192, series of 1994 must be struck down for not being
reasonably necessary to accomplish the City‘s purpose. More importantly, it is oppressive of private
rights. (Fernando v. St. Scholastica’s College, G.R. No. 161107, March 12, 2013, 693 SCRA 141) [Note: As to
the beautification purpose of the assailed ordinance, as previously discussed, the State may not, under the
guise of police power, infringe on private rights solely for the sake of the aesthetic appearance of the
community. Similarly, the Court cannot perceive how a see-thru fence will foster "neighborliness"
between members of a community. (Fernando v. St. Scholastica’s College, G.R. No. 161107, March 12, 2013,
693 SCRA 141)] [Note: But while property may be regulated in the interest of the general welfare, and in
its pursuit, the State may prohibit structures offensive to the sight (Churchill and Tait vs. Rafferty, 32 Phil.
580), the State may not, under the guise of police power, permanently divest owners of the beneficial use
of their property and practically confiscate them solely to preserve or assure the aesthetic appearance of
the community. As the case now stands, every structure that may be erected on appellants' land,
regardless of its own beauty, stands condemned under the ordinance in question, because it would
interfere with the view of the public plaza from the highway. The appellants would, in effect, be
constrained to let their land remain idle and unused for the obvious purpose for which it is best suited,
being urban in character. To legally achieve that result, the municipality must give appellants just
compensation and an opportunity to be heard. (People v. Fajardo, G.R. No. L-12172, August 29, 1958)]
11
The respondents challenge Section 5 of Ordinance No. 0309-07 for being unreasonable and
oppressive in that it sets the effectivity of the ban at three months after publication of the ordinance. They
allege that three months will be inadequate time to shift from aerial to truck-mounted boom spraying, and
effectively deprives them of efficient means to combat the Black Sigatoka disease.
The required civil works for the conversion to truck-mounted boom spraying alone will
consume considerable time and financial resources given the topography and geographical
features of the plantations. As such, the conversion could not be completed within the short
time frame of three months. Requiring the respondents and other affected individuals to
comply with the consequences of the ban within the three-month period under pain of penalty
like fine, imprisonment and even cancellation of business permits would definitely be
oppressive as to constitute abuse of police power. (Mosqueda v. Pilipino Banana Growers and
Exporters Association, Inc., G.R. No. 189185, August 16, 2016)
The exercise of the police power lies in the discretion of the legislative department. xxx.
No mandamus is available to coerce the exercise of the police power. (Constitutional Law, Cruz
and Cruz, 2015 Edition, page 101)
[Note: The ascertainment of facts upon which the police power is to be based is likewise a
legislative prerogative… Whatever it decides is conclusive on the courts. It is different, of
course, if its conclusions are not supported by any semblance of proof at all. (Constitutional
Law, Cruz and Cruz, 2015 Edition, page 102)]
[Note: Thus, when in Jacobson v. Massachussetts, (197 U.S. 11) a person convicted under a law
providing for compulsory vaccination against smallpox offered to prove that the remedy was of dubious
efficacy and might even cause other diseases, rejection of the offer by the trial court was sustained by the
U.S. Supreme Court.]
[Note: A state of martial law is peculiar because the President, at such a time, exercises police
power, which is normally a function of the Legislature. In particular, the President exercises police
power, with the military‘s assistance, to ensure public safety and in place of government agencies which
for the time being are unable to cope with the condition in a locality, which remains under the control of
the State. (Lagman v. Medialdea, G.R. No. 231658, July 4, 2017)]
[Note: The DOJ's reliance on the police power of the state cannot also be countenanced.
Police power pertains to t h e "state authority to enact legislation that may interfere with
personal liberty or property in order to promote the general welfare." It may be said to be that
inherent and plenary power in the State which enables it to prohibit all things hurtful to the
comfort, safety, and welfare of society." Verily, the exercise of this power is primarily lodged with
the legislature but may be wielded by the President and administrative boards, as well as the
lawmaking bodies on all municipal levels, including the barangay, by virtue of a valid delegation of
power. (Genuino v. de Lima, G.R. No. 197930; Arroyo v. de Lima; G.R. No. 199034; Arroyo v. de Lima,
G.R. No. 199046, April 17, 2018)]
The general welfare clause is the delegation in statutory form of the police power of the
State to LGUs. The provisions related thereto are liberally interpreted to give more powers to
LGUs in accelerating economic development and upgrading the quality of life for the people in
the community. Wide discretion is vested on the legislative authority to determine not only
12
what the interests of the public require but also what measures are necessary for the protection
of such interests since the Sanggunian is in the best position to determine the needs of its
constituents… (Ferrer v. Bautista, G.R. No. 210551, June 30, 2015)
Despite the hotel‘s classification as a nuisance per accidens, however, We still find in this
case that the LGU may nevertheless properly order the hotel‘s demolition. This is because, in
the exercise of police power and the general welfare clause, property rights of individuals may
be subjected to restraints and burdens in order to fulfill the objectives of the government.
Otherwise stated, the government may enact legislation that may interfere with personal
liberty, property, lawful businesses and occupations to promote the general welfare. (Aquino v.
Municipality of Malay, Aklan, G.R. No. 211356, September 29, 2014)
"Expansive and extensive as its reach may be, police power is not a force without limits." "It has
to be exercised within bounds – lawful ends through lawful means, i.e., that the interests of the public
generally, as distinguished from that of a particular class, require its exercise, and that the means
employed are reasonably necessary for the accomplishment of the purpose while not being unduly
oppressive upon individuals." That the assailed governmental measure in this case is within the scope of
police power cannot be disputed. Verily, the statutes from which the said measure draws authority and
the constitutional provisions which serve as its framework are primarily concerned with the environment
and health, safety, and well-being of the people, the promotion and securing of which are clearly
legitimate objectives of governmental efforts and regulations. The motivating factor in the issuance of
Proclamation No. 475 is without a doubt the interest of the public in general. (Zabal v. Duterte, G.R. No.
238467, February 12, 2019)
… while the authority of city mayors to issue or grant licenses and business permits is
granted by the Local Government Code (LGC), which also vests local government units with
corporate powers, one of which is the power to sue and be sued, this Court has held that the
power to issue or grant licenses and business permits is not an exercise of the government's
proprietary function. Instead, it is in an exercise of the police power of the State, ergo a
governmental act. (The City of Bacolod v. Phuture Vision Co., Inc., G.R. No. 190289, January 17,
2018)
Ordinance No. 092-2000, which regulates the construction and installation of building and
other structures such as billboards within Davao City, is an exercise of police power. (Evasco v.
Montañez, G.R. No. 199172, February 21, 2018)
Similar to the right to due process, the right to non-impairment yields to the police power
of the State. (The Provincial Bus Operators Association of the Philippines v. Department of Labor and
Employment, G.R. No. 202275, July 17, 2018)
Laws regulating public utilities are likewise police power legislations. (The Provincial Bus
Operators Association of the Philippines v. Department of Labor and Employment, G.R. No. 202275,
July 17, 2018)
Through the imposition in Section 22 of RA 9483, Congress did not just direct the
protection of the country's marine resource, it also promoted the constitutionally-protected
right of the people to a balanced and healthful ecology in accord with the rhythm and harmony
of nature and the basic and constitutional right to health. On the basis thereof, it can be said that
13
the questioned imposition is an exercise of police power by the State. (Department of
Transportation v. Philippine Petroleum Sea Transport Association, G.R. No. 230107, July 24, 2018)
Eminent Domain
[Note: Section 9 of Article III of the Constitution is not a conferment of the power of eminent
domain upon the State, but a specification of the limitations as to its exercise. This provision is not a grant
but indeed a limitation of the power as its negative and restrictive language clearly suggests.
(Constitutional Law, Cruz and Cruz, 2015 Edition, page 130)]
Eminent domain is an indispensable attribute of sovereignty and inherent in government.
However, such power is not boundless; it is circumscribed by two constitutional requirements:
"first, that there must be just compensation, and second, that no person shall be deprived of life,
liberty or property without due process of law." (Republic of the Philippines v. Mupas, G.R. No.
181892, September 8, 2015)
The power of eminent domain is lodged primarily in the national legislature, but its
exercise may be validly delegated to other governmental entities and, in fact, even to private
corporations, like the so-called quasi-public corporations serving essential public needs or
operating public utilities. Under existing laws, the following may exercise the power of
expropriation: the President, various local legislative bodies, certain public corporations, like
the National Housing Authority and water districts (Metropolitan Cebu Water District v. J. King
and Sons Company, Inc., G.R. No. 175983, April 16, 2009, 585 SCRA 484), and quasi-public
corporations like the Philippine National Railways, the Philippine Long Distance Telephone Co.
and the Meralco. (Constitutional Law, Cruz and Cruz, 2015 Edition, pages 130-131)
[Note: The essential requisites for the exercise by a local government unit of the power of
expropriation are the enactment of an ordinance (basically a law, which passes through three readings,
which is general and permanent in character), and not a resolution (which need not go through three
readings, unless otherwise decided by a majority of the lawmakers; is temporary and is merely a
declaration of a sentiment or opinion of the law-making body); it must be for a public use, purpose or
welfare, or for the benefit of the poor and the landless; the payment of just compensation; and its exercise
must be preceded by a valid and definite offer made to the owner, who rejects the same. (Yusay v. Court
of Appeals, G.R. No. 156684, April 6, 2011, 647 SCRA 269)]
Under Rule 67 of the Rules of Court, there are two phases of expropriation: (a) the
condemnation of the property after it is determined that its acquisition will be for a public
purpose or public use; and (b) the determination of just compensation to be paid for the taking
of private property to be made by the court with the assistance of not more than three
commissioners. (Republic of the Philippines v. Mupas, G.R. No. 181892, September 8, 2015)
It has accordingly been ruled that the determination of the necessity of an expropriation is
a justiciable question which can only be resolved during the first stage of an expropriation
proceeding. A claim that the expropriated property is too small to be considered for public use
can only be resolved during that stage. (Metropolitan Cebu Water District v. J. King and Sons
Company, Inc., G.R. No. 175983, April 16, 2009, 585 SCRA 484; City of Manila v. Serrano, 411 Phil.
754-765 (2001), 359 SCRA 231, cited in Republic of the Philippines v. Legaspi, G.R. No. 177611, April
18, 2012, 670 SCRA 110; see also Rule 67 of the Rules of Court)
14
According to 29A CJS, Eminent Domain, §381: ―Inverse condemnation is a cause of action
against a governmental defendant to recover the value of property which has been taken in fact
by the governmental defendant, even though no formal exercise of the power of eminent
domain has been attempted by the taking agency. While the typical taking occurs when the
government acts to condemn property in the exercise of its power of eminent domain, the entire
doctrine of inverse condemnation is predicated on the proposition that a taking may occur
without such formal proceedings. The phrase ―inverse condemnation,‖ as a common
understanding of that phrase would suggest, simply describes an action that is the ―inverse‖ or
―reverse‖ of a condemnation proceeding.‖ (National Power Corporation v. Heirs of Sangkay, G.R.
No. 165828, August 24, 2011, 656 SCRA 60)
The legislature, in providing for the exercise of the power of eminent domain, may
directly determine the necessity for appropriating private property for a particular
improvement for public use, and it may select the exact location of the improvement. In such a
case, it is well settled that the utility of the proposed improvement, the extent of the public
necessity for its construction, the expediency of constructing it, the suitableness of the location
selected and the consequent necessity of taking the land selected for its site, are all questions
exclusively for the legislature to determine, and the courts have no power to interfere, or to
substitute their own views for those of the representatives of the people.‖ (City of Manila v.
Chinese Community, G.R. No. L-14355, October 31, 1919, 40 Phil. 349)
But where these questions are decided by a delegate only of the national legislature, the
Supreme Court has adopted a more censorious attitude. Conformably to the rule that the power
of eminent domain should be interpreted liberally in favor of the private property owner, the
judiciary has assumed the power to inquire into whether the authority conferred upon such
delegate has been correctly or properly exercised by it. This will involve looking into whether the
expropriation contemplated by the delegate is necessary or wise. (Constitutional Law, Cruz and
Cruz, 2015 Edition, pages 133-134; see Republic of the Philippines v. La Orden de PP. Benedictinos de
Filipinas, 1 SCRA 646)
The general power to exercise the right of eminent domain must not be confused with the
right to exercise it in a particular case. The power of the legislature to confer, upon municipal
corporations and other entities within the State, general authority to exercise the right of
eminent domain cannot be questioned by courts, but that general authority of municipalities or
entities must not be confused with the right to exercise it in particular instances. The moment
the municipal corporation or entity attempts to exercise the authority conferred, it must comply
with the conditions accompanying the authority. The necessity for conferring the authority
upon a municipal corporation to exercise the right of eminent domain is admittedly within the
power of the legislature. But whether or not the municipal corporation or entity is exercising the
right in a particular case under the conditions imposed by the general authority, is a question
which the courts have the right to inquire into. (City of Manila v. Chinese Community, G.R. No. L14355, October 31, 1919, 40 Phil. 349; see Constitutional Law, Cruz and Cruz, 2015 Edition, page 135)
Anything that can come under the dominion of a man is subject to expropriation. This will
include real and personal, tangible and intangible properties. A franchise is a property right and
may therefore be expropriated. Churches and other religious properties are likewise
15
expropriable notwithstanding the principle of separation of Church and State. And while it has
been said that the wheels of commerce must stop at the grave, even cemeteries may when
necessary be taken under the power of eminent domain.
The only exceptions to this rule are money and choses in action. Expropriation of money
would be a futile act because of the requirement for the payment of just compensation, usually
also in money. A chose in action is ―a personal right not reduced into possession but
recoverable by a suit at law, a right to receive, demand or recover a debt, demand or damages
on a cause of action ex contractu or for a tort or omission of duty.‖ (Black‘s Law Dictionary, 4th
ed., 305.) It is essentially conjectural both as to its validity and its value. (See Constitutional
Law, Cruz and Cruz, 2015 Edition, pages 136-137)
Services are considered embraced in the concept of property subject to taking, as in the
case of Republic v. PLDT (26 SCRA 620), which involved the interconnection between the
Government Telephone System and the PLDT, so that the former can use the lines and facilities
of the latter, and PLDT v. NTC (190 SCRA 717), where the petitioner was required to
interconnect with a private communications company. (Constitutional Law, Cruz and Cruz,
2015 Edition, pages 138-139)
Property already devoted to public use is still subject to expropriation, provided this is
done directly by the national legislature or under a specific grant of authority to the delegate. A
mere general authority may not suffice. In such a case the courts will have authority to inquire
into the necessity of the expropriation and, finding none, refuse to allow it. (City of Manila v.
Chinese Community, 40 Phil. 349; see City of Manila v. Chinese Community, G.R. No. L-14355,
October 31, 1919, 40 Phil. 349)
R.A. No. 3120 was intended to implement the social justice policy of the Constitution and
the government's program of land for the landless. Thus, the sale of the subdivided lots to the
bona fide occupants by authority of Congress was not an exercise of eminent domain or
expropriation without just compensation, which would have been in violation of Section 1(2),
Article III of the 1935 Constitution, but simply a manifestation of its right and power to deal
with State property. "It is established doctrine that the act of classifying State property calls for
the exercise of wide discretionary legislative power which will not be interfered with by the
courts." In Rabuco, the rule in Salas was reiterated that property of the public domain, although
titled to the local government, is held by it in trust for the State. (Sangguniang Panlalawigan of
Bataan v. Garcia, G.R. No. 174964, October 5, 2016)
Petitioners' reliance on Section 50 of P.D. No. 1529 is erroneous since it contemplates
roads and streets in a subdivided property, not public thoroughfares built on a private property
that was taken from an owner for public purpose. A public thoroughfare is not a subdivision
road or street. xxx. Apparently, the subject land is within the commerce of man and is therefore
a proper subject of an expropriation proceeding. Pursuant to this, the MOA between the
petitioners and the respondents is valid and binding. (Vergara v. Melencio, G.R. No. 185638,
August 10, 2016, citing Republic of the Philippines v. Ortigas and Company Limited Partnership, G.R.
No.171496, March 3, 2014)
16
[Note: The Department of Public Works and Highways makes no claim here that the road lots
covered by TCT No. 179165 have actually been donated to the government or that their transfer has
otherwise been consummated by respondents. It only theorizes that they have been automatically
transferred. Neither has expropriation ever been fully effected. Precisely, we are resolving this
expropriation controversy only now. Respondents have not made any positive act enabling the City
Government of Parañaque to acquire dominion over the disputed road lots. Therefore, they retain their
private character (albeit all parties acknowledge them to be subject to an easement of right of way).
Accordingly, just compensation must be paid to respondents as the government takes the road lots in the
course of a road widening project. (Republic v. Sps. Llamas, G.R. No. 194190, January 25, 2017)]
The requisites of taking in eminent domain are First, The expropriator must enter a private
property; Second, the entrance into private property must be for more than a momentary period;
Third, the entry into the property should be under warrant or color of legal authority; Fourth, the
property must be devoted to a public use or otherwise informally appropriated or injuriously
affected; and Fifth, the utilization of the property for public use must be in such a way as to oust
the owner and deprive him of all beneficial enjoyment of the property. (Republic v. Castelvi, 58
SCRA 336; National Transmission Corporation v. Oroville Development Corporation, G.R. No. 223366,
August 1, 2017)
―Indeed, the expropriator‘s action may be short of acquisition of title, physical possession,
or occupancy but may still amount to a taking. Compensable taking includes destruction,
restriction, diminution, or interruption of the rights of ownership or of the common and
necessary use and enjoyment of the property in a lawful manner, lessening or destroying its
value. It is neither necessary that the owner be wholly deprived of the use of his property, nor
material whether the property is removed from the possession of the owner, or in any respect
changes hands.‖ (National Power Corporation v. Heirs of Sangkay, G.R. No. 165828, August 24,
2011, 656 SCRA 60; National Power Corporation v. Sps. Malijan, G.R. No. 211731, December 7,
2016)
There is "taking," in the context of the State's inherent power of eminent domain, when the
owner is actually deprived or dispossessed of his property; when there is a practical destruction
or material impairment of the value of his property or when he is deprived of the ordinary use
thereof. Using one of these standards, it is apparent that there is taking of the remaining area of
the property of the Spouses Regulto. It is true that no burden was imposed thereon, and that the
spouses still retained title and possession of the property. The fact that more than half of the
property shall be devoted to the bypass road will undoubtedly result in material impairment of
the value of the property. It reduced the subject property to an area of 138 square meters.
(Republic v. Sps. Regulto, G.R. No. 202051, April 18, 2016)
[Note: It is noted that the 162 square meters of the subject property traversed by the bypass road
project is well within the limit provided by the law While this Court concurs that the petitioners are not
obliged to pay just compensation in the enforcement of its easement of right-of-way to lands which
originated from public lands granted by free patent, we, however, rule that petitioners are not free from
any liability as to the consequence of enforcing the said right-of-way granted over the original 7,759square-meter property to the 300-square-meter property belonging to the Spouses Regulto. (Republic v.
Sps. Regulto, G.R. No. 202051, April 18, 2016)]
17
[Note: Thus, the petitioners are liable to pay just compensation over the remaining area of the
subject property, with interest thereon at the rate of six percent (6%) per annum from the date of writ of
possession or the actual taking until full payment is made. (Republic v. Sps. Regulto, G.R. No. 202051, April
18, 2016)]
Among the instances which have been considered as taking are the permanent
inundation of a farmland because of the construction of a dam nearby (US v. Lynch, 18 US
445); when government planes constantly fly over private property at very low altitudes (US
v. Causby, 328 US 256); an ordinance prohibiting the construction of any building which
would obstruct the view of a plaza from a highway (People v. Fajardo, 104 Phil. 443); a
COMELEC Resolution requiring newspapers to provide it with free space of not less than ½
page for the common use of political parties and candidates (Philippine Press Institute v.
COMELEC, G.R. No. L-119694, May 22, 1995, 244 SCRA 272); an easement over a three-meter strip
of private property (Ayala de Roxas v. City of Manila, 9 Phil. 215); right-of-way (aerial)
easements, resulting in the restriction on property rights over land traversed by transmission
lines (NPC v. Aguirre-Paderanga, 464 SCRA 481; National Power Corporation v. Purefoods
Corporation, G.R. No. 160725, September 12, 2008; National Power Corporation v. Co, G.R. No.
166973, February 10, 2009; National Power Corporation v. Ileto, G.R. No. 169957, July 11, 2012); the
installation of an exhaust fan in a tunnel directly blowing smoke into a house (Richards v.
Washington Terminal, 233 US 546); agrarian reform (Association of Small Landowners v. Secretary of
Agrarian Reform, 175 SCRA 343); the construction of a tunnel underneath agricultural land
(National Power Corporation v. Heirs of Sangkay, G.R. No. 165828, August 24, 2011); an ordinance
requiring private cemeteries to reserve 6% of their total areas to paupers (City Government of
Quezon City v. Ericta, 122 SCRA 759); an effort to prohibit malls from collecting parking fees
(OSG v. Ayala Land, Inc., G.R. No. 177056, September 18, 2009); an ordinance requiring a
setback requirement for walls [to make available more parking space for free for the general
public]. (Fernando v. St. Scholastica’s College, G.R. No. 161107, March 12, 2013)
Taking occurs when the landowner is deprived of the use and benefit of his property,
such as when the title is transferred to the Republic. (Land Bank of the Philippines v. Livioco, G.R.
No. 170685, September 22, 2010, 631 SCRA 86; see also Land Bank of the Philippines v. Heirs of
Salvador Encinas, G.R. No. 167735, April 18, 2012, 670 SCRA 52, 60, citing Land Bank of the
Philippines v. Department of Agrarian Reform, G.R. No. 171840, April 4, 2011, 647 SCRA 152, 169;
Land Bank of the Philippines v. Imperial, 544 Phil. 378, 388 [2007], 515 SCRA 449; Gabatin v. Land
Bank of the Philippines, 486 Phil. 366, 383-384 [2004], 444 SCRA 176; Eusebio v. Luis, G.R. No.
162474, October 13, 2009, 603 SCRA 576, 586-587; and Land Bank of the Philippines v. American
Rubber Corporation, G.R. No. 188046, July 24, 2013, 702 SCRA 166)
The establishment of the buffer zone is required for the purpose of minimizing the effects
of aerial spraying within and near the plantations. Although Section 3(e) of the ordinance
requires the planting of diversified trees within the identified buffer zone, the requirement
cannot be construed and deemed as confiscatory requiring payment of just compensation. A
landowner may only be entitled to compensation if the taking amounts to a permanent denial of
all economically beneficial or productive uses of the land. The respondents cannot be said to be
permanently and completely deprived of their landholdings because they can still cultivate or
make other productive uses of the areas to be identified as the buffer zones. (Mosqueda v. Pilipino
Banana Growers and Exporters Association, Inc., G.R. No. 189185, August 16, 2016)
18
Public use refers any use directly available to the general public as a matter of right and
not merely forbearance or accommodation. Examples would be parks which are res communes;
property devoted to public services administered by privately-owned public utilities, like
telephone or light companies (demandable as a matter of right by anyone prepared to pay for
said services) (Denieter Land Co. v. Florida Public Service Co., 128 S0. 402); and a pilot
development center (Province of Camarines Sur v. Court of Appeals, 222 SCRA 173)
Property already devoted to public use can still be expropriated. (City of Manila v. Chinese
Community, 40 Phil. 349)
Agrarian reform has been likewise been acknowledged as compliant with the public use
requirement for expropriation. (Association of Small Landowners v. Secretary of Agrarian Reform,
175 SCRA 343, Land Bank of the Philippines v. Department of Agrarian Reform, G.R. No. 171840,
April 4, 2011, 647 SCRA 152, 169; and Land Bank of the Philippines v. Imperial, G.R. No. 157753,
February 12, 2007, 515 SCRA 449, 458; Land Bank of the Philippines v. Heirs of Salvador Encinas,
G.R. No. 167735, April 18, 2012, 670 SCRA 52; Land Bank of the Philippines v. Imperial, 544 Phil.
378 [2007]), 515 SCRA 449; Gabatin v. Land Bank of the Philippines, 486 Phil. 366 [2004], 444 SCRA
176; Land Bank of the Philippines v. Livioco, G.R. No. 170685, September 22, 2010, 631 SCRA 86;
Land Bank of the Philippines v. Peralta, G.R. No. 182704, April 23, 2014, 723 SCRA 528; see also
Department of Agrarian Reform v. Galle, G.R. No. 171836, October 2, 2017)
So have expropriation for slum clearance and urban development been considered for a
public purpose even if the developed area is later sold to private homeowners, commercial
firms, entertainment and service companies and other private concerns (Reyes v. National
Housing Authority, 395 SCRA 494); along with urban land reform and housing, or a socialized
housing program involving only a one-half hectare area (Manapat v. Court of Appeals, G.R. No.
110478, October 15, 2007, 536 SCRA 32); and socialized housing, whereby housing units are
distributed or sold to qualified beneficiaries on ―much easier terms.‖ (City of Manila v. Te, G.R.
No. 169263, September 21, 2011, 658 SCRA 88; see also Sumulong v. Guerrero, No. L-48685,
September 30, 1987, 154 SCRA 461, citing the case of Heirs of Juancho Ardona v. Reyes, Nos. L60549, 60553-60555, October 26, 1983, 125 SCRA 220)
When the taking of private property is no longer for a public purpose, the expropriation
complaint should be dismissed by the trial court. The case will proceed only if the trial court's
order of expropriation became final and executory and the expropriation causes prejudice to the
property owner. (National Power Corporation v. Posada, G.R. No. 191945, March 11, 2015)
The rule, therefore, is that expropriation proceedings must be dismissed when it is
determined that it is not for a public purpose, except when: First, the trial court‘s order already
became final and executory; Second, the government already took possession of the property;
and Lastly, the expropriation case already caused prejudice to the landowner. The
expropriation case is not automatically dismissed when the property ceases to be for public use.
The state must first file the appropriate Motion to Withdraw before the trial court having
jurisdiction over the proceedings. The grant or denial of any Motion to Withdraw in an
expropriation proceeding is always subject to judicial discretion. (National Power Corporation v.
Posada, G.R. No. 191945, March 11, 2015)
19
[Note: Here, NAPOCOR seeks to discontinue the expropriation proceedings on the ground that the
transmission lines constructed on the respondents‘ property had already been retired. Considering that
the Court has consistently upheld the primordial importance of public use in expropriation proceedings,
NAPOCOR‘s reliance on Metropolitan Water District v. De los Angeles was apt and correct. Verily, the
retirement of the transmission lines necessarily stripped the expropriation proceedings of the element of
public use. To continue with the expropriation proceedings despite the definite cessation of the public
purpose of the project would result in the rendition of an invalid judgment in favor of the expropriator
due to the absence of the essential element of public use. (Republic of the Philippines v. Heirs of Saturnino Q.
Borbon, G.R. No. 165354, January 12, 2015)]
[Note: The expropriator who has taken possession of the property subject of expropriation is
obliged to pay reasonable compensation to the landowner for the period of such possession although the
proceedings had been discontinued on the ground that the public purpose for the expropriation had
meanwhile ceased. (Republic of the Philippines v. Heirs of Saturnino Q. Borbon, G.R. No. 165354, January 12,
2015)]
Just compensation is defined as "the full and fair equivalent of the property taken from its
owner by the expropriator." The word "just" is used to qualify the meaning of the word
"compensation" and to convey the idea that the amount to be tendered for the property to be
taken shall be real, substantial, full and ample. On the other hand, the word "compensation"
means "a full indemnity or remuneration for the loss or damage sustained by the owner of
property taken or injured for public use." (Republic of the Philippines v. Mupas, G.R. No. 181892,
September 8, 2015)
The presence of transmission lines would undoubtedly restrict the respondent‘s use of his
property. Accordingly, the full market value of said property must be paid to the respondent as
just compensation. (National Power Corporation v. Co, G.R. No. 166973, February 10, 2009, 578
SCRA 234)
The determination of just compensation is clearly a judicial function. (Land Bank of the
Philippines v. Escandor, G.R. No. 171685, October 11, 201, 632 SCRA 504; Land Bank v. Heirs of
Listana, G.R. No. 182758, May 30, 2011, 649 SCRA 416; see also Land Bank of the Philippines v.
Umandap, G.R. No. 166298, November 17, 2010, 635 SCRA 116, and Land Bank of the Philippines v.
Heirs of Trinidad S. Vda. De Arieta, G.R. No. 161834, August 11, 2010, 628 SCRA 43)
Legislative enactments, as well as executive issuances, fixing or providing for the method
of computing just compensation are tantamount to impermissible encroachment on judicial
prerogatives. They are not binding on courts and, at best, are treated as mere guidelines in
ascertaining the amount of just compensation. (Republic of the Philippines v. Mupas, G.R. No.
181892, September 8, 2015; Republic v. C.C. Unson Company, Inc., G.R. No. 215107, February 24,
2016)
[Note: As earlier cited, in Section 57 of R.A. No. 6657, Congress expressly granted the RTC, acting
as SAC, the original and exclusive jurisdiction over all petitions for the determination of just
compensation to landowners. Only the legislature can recall that power. The DAR has no authority to
qualify or undo that. The Court's pronouncement in Veterans Bank, Martinez, Soriano, and Limkaichong,
reconciling the power of the DAR and the SAC essentially barring any petition to the SAC for having
been filed beyond the 15-day period provided in Section II, Rule XIII of the DARAB Rules of Procedure,
20
cannot be sustained. The DAR regulation simply has no statutory basis. (Land Bank of the Philippines v.
Dalauta, G.R. No. 190004, August 8, 2017)]
Any determination which may be made by any administrative body, such as the
Department of Agrarian Reform, on the value of expropriated land would be at best
preliminary and should not be considered as conclusive upon the landowner or any other
interested party. (Land Bank of the Philippines v. Escandor, G.R. No. 171685, October 11, 201, 632
SCRA 504; Land Bank v. Heirs of Listana, G.R. No. 182758, May 30, 2011, 649 SCRA 416; see also
Land Bank of the Philippines v. Umandap, G.R. No. 166298, November 17, 2010, 635 SCRA 116, and
Land Bank of the Philippines v. Heirs of Trinidad S. Vda. De Arieta, G.R. No. 161834, August 11,
2010, 628 SCRA 43)
[Note: Accordingly, the Comprehensive Agrarian Reform Law vests in Regional Trial Courts,
sitting as Special Agrarian Courts (SACs), original and exclusive jurisdiction over all petitions for
determination of just compensation. This means that said courts do not exercise mere appellate
jurisdiction over just compensation disputes. (Land Bank of the Philippines v. Escandor, G.R. No. 171685,
October 11, 201, 632 SCRA 504; Land Bank v. Heirs of Listana, G.R. No. 182758, May 30, 2011, 649 SCRA
416; see also Land Bank of the Philippines v. Umandap, G.R. No. 166298, November 17, 2010, 635 SCRA 116,
and Land Bank of the Philippines v. Heirs of Trinidad S. Vda. De Arieta, G.R. No. 161834, August 11, 2010, 628
SCRA 43)]
"Just compensation is to be ascertained as of the time of the taking, which usually
coincides with the commencement of the expropriation proceedings. Where the institution of
the action precedes entry into the property, the just compensation is to be ascertained as of the
time of the filing of the complaint." (National Power Corporation v. Diato-Bernal, G.R. No. 180979,
December 15, 2010, cited in Republic v. Larrazabal, G.R. No. 204530, July 26, 2017)
In Hacienda Luisita, Incorporated v. Presidential Agrarian Reform Council (G.R. No. 171101,
November 22, 2011, 660 SCRA 525), the taking of the property expropriated for agrarian reform
purposes was considered to have occurred upon or on the date of the approval of the
petitioner‘s Stock Distribution Plan by the Presidential Agrarian Reform Council, ―in view of
the fact that this is the time that the FWBs were considered to own and possess the agricultural
lands in Hacienda Luisita. To be precise, these lands became subject of the agrarian reform
coverage through the stock distribution scheme only upon the approval of the SDP, that is,
November 21, 1989. Thus, such approval is akin to a notice of coverage ordinarily issued under
compulsory acquisition.‖ The property in said case was considered taken by way of
expropriation as of said date, or in 1989, despite the revocation of the SDP more than twenty
years later.
Here, the date of the taking of the subject landholdings for purposes of computing just
compensation should be reckoned from the issuance dates of the CLOA. A CLOA is a document
evidencing ownership of the land granted or awarded to the beneficiary by the DAR, and
contains the restrictions and conditions provided for in R.A. No. 6657 and other applicable laws.
Land Bank of the Philippines v. Phil-Agro Industrial Corporation, G.R. No. 193987, March 13, 2017)
Just compensation for the crops and improvements is inseparable from the valuation of
the raw lands as the former are part and parcel of the latter. Even if separately valued, these
must be awarded to the landowner irrespective of the nature of ownership of the said crops and
21
installations. Any valuation made by the DARAB is limited only to that – a mere valuation. The
tribunal is not concerned with the nature of the ownership of the crops and improvements.
(Heirs of Banaag v. AMS Farming Corporation, G.R. No. 187801, September 13, 2012, 680 SCRA
597)
Neither laches nor prescription may bar a claim for just compensation for property taken
for public use. (Eusebio v. Luis, G.R. No. 162474, October 13, 2009, 603 SCRA 576)
[Note: ―The five-year prescriptive period provided under Section 3(i) of Republic Act No.
6395 is applicable only to an action for damages, and does not extend to an action to recover just
compensation like this case. Consequently, NPC cannot thereby bar the right of the Heirs of
Macabangkit to recover just compensation for their land.‖ (National Power Corporation v. Heirs of
Sangkay, G.R. No. 165828, August 24, 2011, 656 SCRA 60)]
The failure for a long time of the owner to question the lack of expropriation proceedings
covering a property that the government had taken constitutes a waiver of his right to gain back
possession. The remedy would be an action for the payment of just compensation, not
ejectment. (Republic v. Mendoza, G.R. No. 185091, August 8, 2010)
In Commissioner of Public Highways v. Burgos (96 SCRA 831), just compensation was
determined in 1973 as of the time of the taking of the property in 1924. However, the Supreme
Court did not apply Article 1250 of the Civil Code calling for the adjustment of the peso rate in
times of extraordinary inflation or deflation because, in eminent domain cases, ―the obligation
to pay arises from law, independent of contract.‖
[Note: To recapitulate, the formula for determination of just compensation to landowners does not
include the factor for inflation rate, as inflation is properly accounted for through payment of interest on
the amount due to the landowner, and through the award of exemplary damages and attorney's fees in
cases where there was irregularity in the taking of property. (National Power Corporation v. Manalastas and
Castillo, G.R. No. 196140, January 27, 2016)]
Payment of just compensation shall be made to the owner, which refers to all those who
have lawful interest in the property, including a mortgagee, a lessee and a vendee. (Knecht v.
Court of Appeals, 207 SCRA 754)
[Note: In Land Bank of the Philippines v. AMS Farming Corporation (G.R. No. 174971, October 15, 2008,
569 SCRA 154), the Supreme Court rejected the respondent‘s claim for just compensation since it was ―not
a landowner, but a mere lessee‖ of the expropriated agricultural land. Accordingly, the Court ruled that
―it had no right under the CARL to demand from LBP just compensation for its standing crops and
improvements. As a lessee, the rights of AMS over its standing crops and improvements on the leased
property are defined, conferred, as well as limited by the provisions of the MOA it executed with TOTCO
on 8 August 1991, in relation to those of the Civil Code. That the leased land was placed under the CARP
did not change the status of AMS as a lessee and gave it the right to more compensation upon the
termination of the lease, as compared to the lessee of any other kind of property. It was never the
intention of the CARL to create a privileged class of lessees.‖]
PIATCO, as the owner of the NAIA-IPT III, shall solely receive the just compensation.
Based on the last paragraph, Section 4 of RA 8974 and the prevailing jurisprudence, it is the
22
owner of the expropriated property who is constitutionally entitled to just compensation. Other
claimants should be impleaded or may intervene in the eminent domain case if the ownership
of the property is uncertain or there are conflicting claims on the property pursuant to Section 9,
Rule 67 of the Rules of Court. (Republic of the Philippines v. Mupas, G.R. No. 181892, September 8,
2015)
Consequential damages consist of injuries directly caused on the residue of the private
property taken by reason of the expropriation. Where, for example, the expropriator takes only
part of a parcel of land, leaving the remainder with an odd shape or area as to be virtually
unusable, the owner can claim consequential damages. On the other hand, if the remainder is as
a result of the expropriation placed in a better location, such as fronting a street where it used to
be an interior lot, the owner will enjoy consequential benefits which should be deducted from
the consequential damages. Consequential benefits, like consequential damages, must be direct
and particular and not merely shared with the rest of the properties in the area, as where there
is a general appreciation of land values because of the public use to which the condemned
properties are devoted. (Constitutional Law, Cruz and Cruz, 2015 Edition, page 155)
No actual taking of the building is necessary to grant consequential damages.
Consequential damages are awarded if as a result of the expropriation, the remaining property
of the owner suffers from an impairment or decrease in value. (Republic of the Philippines v. Court
of Appeals, G.R. No. 160379, August 14, 2009, 596 SCRA 57; Republic of the Philippines v. Bank of the
Philippine Islands, G.R. No. 203039, September 11, 2013, 705 SCRA 650)
Considering that the subject property is being expropriated in its entirety, there is no
remaining portion which may suffer an impairment or decrease in value as a result of the
expropriation. Hence, the award of consequential damages is improper. (Republic of the
Philippines v. Soriano, G.R. No. 211666, February 25, 2015)
We likewise rule that the RTC committed a serious error when it directed the Republic to
pay respondents consequential damages equivalent to the value of the capital gains tax and
other taxes necessary for the transfer of the subject property. (Republic v. Sps. Salvador, G.R. No.
205428, June 7, 2017)
The loss incurred by the affected owner necessarily includes all incidental costs to
facilitate the transfer of the expropriated property to the expropriating authority, including the
CGT due on the forced sale and other transfer taxes. These costs must be taken into
consideration in determining just compensation in the same way these costs are factored into
the selling price of real property in an arm's length transaction. Notably, the value of the
expropriated property, as declared by the affected owner, is one of the factors listed under
Section 5 of RA 8974.
Here, the respondents received, as just compensation, an amount equal to the sum of the
subject property's current BIR zonal valuation. Evidently, the value of CGT and transfer taxes
due on the transfer of the subject property were not factored into the amount paid to the
respondents, but instead, separately awarded as consequential damages.
23
While the award of consequential damages equivalent to the value of CGT and transfer
taxes must be struck down for being without legal basis, the Court deems it just and equitable
to direct petitioner Republic to shoulder such taxes to preserve the compensation awarded to
the respondents as a consequence of the expropriation. To stress, compensation, to be just, it
must be of such value as to fully rehabilitate the affected owner; it must be sufficient to make
the affected owner whole. (Republic v. Juliana San Miguel Vda. de Ramos, G.R. No. 211576,
February 19, 2020)
―To be just, the compensation must not only be the correct amount to be paid; it must also
be paid within a reasonable time from the time the land is taken from the owner. If not, the State
must pay the landowner interest, by way of damages, from the time the property was taken
until just compensation is fully paid. (APO Fruits Corporation v. Land Bank of the Philippines, G.R.
No. 164195, October 12, 2010, 607 SCRA 200)
Thus, a legal interest of 12% per annum on the difference between the final amount
adjudged by the Court and the initial payment made shall accrue from 21 April 2006 until 30
June 2013. From 1 July 2013 until the finality of the Decision of the Court, the difference
between the initial payment and the final amount adjudged by the Court shall earn interest at
the rate of 6% per annum. Thereafter, the total amount of just compensation shall earn legal
interest of 6% per annum from the finality of this Decision until full payment thereof. (Evergreen
Manufacturing Corporation v. Republic, G.R. No. 218628, September 6, 2017)
[Note: Meanwhile, the Monetary Board of the Bangko Sentral ng Pilipinas in its Resolution No. 796
dated May 16, 2013, and now embodied in Monetary Board Circular No. 799, has effective July 1, 2013
reduced to 6%, from 12%, the legal rate of interest for the loan or forbearance of any money, goods or
credits and the rate allowed in judgments, in the absence of stipulation. Since Chinabank demanded only
the legal, not the stipulated, interest rate on the deficiency and attorney‘s fees due, the defendants will
solidarily pay interest on their shares in the deficiency at the rate of 12% from November 18, 1998 to June
30, 2013, and 6% from July 1, 2013 until fully paid. (Sps. Sinamban v. China Banking Corporation, G.R.
193890, March 11, 2015; see also Nacar v. Gallery Frames (G.R. No. 189871, August 13, 2013, 703 SCRA 439),
where the Court clarified that pursuant to Bangko Sentral ng Pilipinas-Monetary Board (BSP-MB) Circular
No. 799 (Series of 2013), the legal rate of interest is currently at six percent (6%) regardless of the source of
obligation. Such new rate should be applied prospectively, and the twelve percent (12%) legal interest
shall apply only until June 30, 2013. Thereafter, the new rate of six percent (6%) per annum shall be the
prevailing rate of interest. (Remington Industrial Sales Corporation v. Maricalum Mining Corporation, G.R.
No. 193945, June 22, 2015)]
An eminent domain case is different from a complaint for damages. A complaint for
damages is based on tort and emanates from the transgression of a right. A complaint for
damages seeks to vindicate a legal wrong through damages, which may be actual, moral,
nominal, temperate, liquidated, or exemplary. When a right is exercised in a manner not
conformable with Article 19 of the Civil Code and other provisions on human relations in the
Civil Code, and the exercise results in the damage of another, a legal wrong is committed and
the wrongdoer is held responsible. (Republic of the Philippines v. Mupas, G.R. No. 181892,
September 8, 2015)
―Interest of 12% per annum on the just compensation is due the landowner in case of
delay in payment, which will, in effect, make the obligation on the part of the government one
24
of forbearance. On the other hand, interest in the form of damages cannot be imposed where
there is prompt and valid payment of just compensation. Interest on just compensation is
assessed only in case of delay in the payment thereof, a fact which must be adequately proved.‖
(Land Bank of the Philippines v. Chico, G.R. No. 168453, March 13, 2009, 581 SCRA 226; Land Bank
of the Philippines v. Gallego, G.R. No. 173226, July 29, 2013, 702 SCRA 377)
A ―government agency‘s prolonged occupation of private property without the benefit
of expropriation proceedings entitles the landowner to damages.‖ (City of Iloilo v. ContrerasBesana, G.R. No. 168967, 12 February 2010, 612 SCRA 458) ―These damages may be allowed
when the court is convinced that the aggrieved party suffered some pecuniary loss but, from the
nature of the case, definite proof of that pecuniary loss cannot be adduced. (De Guzman v.
Tumolva, G.R. No. 188072, October 19, 2011, 659 SCRA 725, citing Seguritan v. People, 618 SCRA
406, 420 (2010) and Canada v. All Commodities Marketing Corp., 569 SCRA 321, 329 (2008); Heirs of
Gaite v. The Plaza, Inc., G.R. No. 177685, 26 January 2011, 640 SCRA 576, citing Government
Service Insurance System v. Labung-Deang, 417 Phil. 662 (2001), 365 SCRA 431)
Taxes paid by the owner from the time of the taking until actual transfer of title are
reimbursable by the expropriator. (City of Manila v. Roxas, 60 Phil. 215)
Title to the property shall not be transferred until after actual payment of just
compensation. (Visayan Refining Co. v. Camus, 40 Phil. 550)
Insofar as expropriation for agrarian reform is concerned, it has been ruled that the
agrarian reform process would be incomplete without payment of just compensation. (Land
Bank of the Philippines v. Natividad, 497 Phil. 738, 746 (2005), 458 SCRA 441; see also Land Bank of
the Philippines v. Ferrer, G.R. No. 172230, February 2, 2011, 641 SCRA 414; Department of Agrarian
Reform v. Goduco, G.R. No. 174007, June 27, 2012, 675 SCRA 187)
When the Department of Agrarian Reform erroneously caused the titling of the entire
land of the landowner, and not just the portion thereof which it expropriated, the Supreme
Court found it to have ―violated the property rights of respondent landowners‖ precisely
because ―it caused the titling of the entire land to encompass even the 75.6913-hectare excluded
portion.‖ The Court said ―this invasion of proprietary rights, which is imputable to the
Republic, deserves redress. However, the form of that redress is limited in this case to damages
arising from the erroneous titling of the property. It cannot extend to the point where the
Republic would be compelled to acquire the excluded portion, beyond the coverage of the
CARP, and pay just compensation for land ill-suited for agricultural purposes, as prayed for by
respondents and ordered by the courts below.‖ (Land Bank of the Philippines v. Montalvan, G.R.
No. 190336, June 27, 2012, 675 SCRA 380)
Taxation
―Taxes are the enforced proportional contributions from persons and property, levied by
the State by virtue of its sovereignty, for the support of government and for all public needs.‖
(Cooley, Taxation, 4th ed., Sec. 1.) Taxation is the method by which these contributions are
exacted. (Constitutional Law, Cruz and Cruz, 2015 Edition, page 180)
25
Taxes are distinguished from licenses in the sense that the former are levied to raise
revenues whereas the latter are imposed for regulatory purposes only. Licenses are justified
under the police power, and the amount of the fees required is usually limited only to the cost
of regulation. The exception is where the business licensed is non-useful and is sought to be
discouraged by the legislature, in which case a high license fee may be imposed. (Constitutional
Law, Cruz and Cruz, 2015 Edition, pages 181-182)
The term tax frequently applies to all kinds of exactions of monies which become public
funds. It is often loosely used to include levies for regulatory purposes such that license fees are
frequently called taxes although license fee is a legal concept distinguishable from tax: the former
is imposed in the exercise of the police power primarily for purposes of regulation, while the
latter is imposed under the taxing power primarily for purposes of raising revenues. (Compania
General de Tabacos de Filipinas v. City of Manila, 118 Phil. 383; 8 SCRA 370 [1963]; Pacific
Commercial Co. v. Romualdez, 49 Phil. 917 [1927])
Thus, if the generating of revenue is the primary purpose and regulation is merely
incidental, the imposition is a tax; but if regulation is the primary purpose, the fact that
incidentally revenue is also obtained does not make the imposition a tax. (Manila Electric
Company v. El Auditor General y La Comision de Servicios Publicos, 73 Phil. 133 [1941]; Republic v.
Philippine Rabbit Bus Lines, 32 SCRA 215 [1970])
[Note: The imposition of a vehicle registration fee is not an exercise by the State of its police power,
but of its taxation power, as its main purpose would be to raise funds for the construction and
maintenance of highways and to a much lesser degree, pay for the operating expenses of the
administering agency. Fees may be properly regarded as taxes even though they also serve as an
instrument of regulation. (Philippine Airlines, Inc. v. Edu, G.R. No. L-41383, August 15, 1988, 164 SCRA
320)]
[Note: The coconut levy fund was imposed in the exercise of the State‘s inherent power of taxation
and was ―raised pursuant to law to support a proper governmental purpose‖ and ―with the use of the
police and taxing powers of the State for the benefit of the coconut industry and its farmers in general.‖
(Petitioner Organizations v. Executive Secretary, G.R. Nos. 147036-37, April 10, 2012, 669 SCRA 49, citing
Republic v. COCOFED, G.R. No. 147062-64, December 14, 2001, 372 SCRA 462, 482-84 and Republic of the
Philippines v. COCOFED, 423 Phil. 735 [2001], 372 SCRA 462)]
[Note: Clearly, the SHT (Socialized Housing Tax) charged by the Quezon City Government is a tax
which is within its power to impose. Aside from the specific authority vested by Section 43 of the UDHA,
cities are allowed to exercise such other powers and discharge such other functions and responsibilities as
are necessary, appropriate, or incidental to efficient and effective provision of the basic services and
facilities which include, among others, programs and projects or low-cost housing and other mass
dwellings. The collections made accrue to its socialized housing programs and projects. The tax is not a
pure exercise of taxing power or merely to raise revenue; it is levied with a regulatory purpose. The levy
is primarily in the exercise of the police power for the general welfare of the entire city. It is greatly
imbued with public interest. Removing slum areas in Quezon City is not only beneficial to the
underprivileged and homeless constituents but advantageous to the real property owners as well. The
situation will improve the value of the their property investments, fully enjoying the same in view of an
orderly, secure, and safe community, and will enhance the quality of life of the poor, making them lawabiding constituents and better consumers of business products. (Ferrer v. Bautista, G.R. No. 210551, June
30, 2015)]
26
[Note: The Universal Charge is not a tax but an exaction in the exercise of the State's police power.
The Universal Charge is imposed to ensure the viability of the country's electric power industry. (Gerochi
v. Secretary of Energy, G.R. No. 159796, July 17, 2007, 527 SCRA 696, cited in Betoy v. Board of Directors,
National Power Corporation, G.R. Nos. 156556-57, October 4, 2011, 658 SCRA 420)]
[Note: Necessarily, LGUs are statutorily sanctioned to impose and collect such reasonable fees and
charges for services rendered. ―Charges‖ refer to pecuniary liability, as rents or fees against persons or
property, while ―Fee‖ means a charge fixed by law or ordinance for the regulation or inspection of a
business or activity. The fee imposed for garbage collections under Ordinance No. SP-2235 is a charge
fixed for the regulation of an activity… Certainly, as opposed to petitioner‘s opinion, the garbage fee is
not a tax…. Hence, not being a tax, the contention that the garbage fee under Ordinance No. SP-2235
violates the rule on double taxation must necessarily fail. (Ferrer v. Bautista, G.R. No. 210551, June 30,
2015)]
[Note: The building permit fee, which the petitioner did not want to pay on the ground that a law
exempted it ―from the payment of all taxes, import duties, assessments, and other charges imposed by the
Government on all income derived from or property, real or personal, used exclusively for the
educational activities of the Foundation,‖ is a regulatory imposition, and not a charge on property. It is
therefore an imposition ―from which petitioner is exempt.‖ (Angeles University Foundation v. City of
Angeles, G.R. No. 189999, June 27, 2012, 675 SCRA 359)]
The power of taxation is inherent in the State. Primarily vested in the national legislature,
it may now also be exercised by the local legislative bodies, no longer by virtue of a valid
delegation as before but pursuant to a direct authority conferred by Article X, Section 5 of the
Constitution, which provides that “each local government unit shall have the power to create its own
sources of revenue and to levy taxes, fees and charges, subject to such guidelines and limitations as the
Congress may provide, consistent with the basic policy of local autonomy.” (Constitutional Law, Cruz
and Cruz, 2015 Edition, pages 184-185)
As a general rule though, there must be a statutory grant for a local government unit to
impose lawfully a tax, that unit not having the inherent power of taxation. The rule, however,
finds no application where what is involved is an exercise of, principally, the regulatory power
of the respondent City and where that regulatory power is expressly accompanied by the taxing
power. (Progressive Development Corporation v. Quezon City, G.R. No. 36081, April 24, 1989, 172
SCRA 629, 636, citing Saldaña v. City of Iloilo, 104 Phil. 28, 33 [1958]; see Angeles University
Foundation v. City of Angeles, G.R. No. 189999, June 27, 2012)
Under the 1987 Constitution, "where there is neither a grant nor a prohibition by statute,
the tax power (of local government units) must be deemed to exist although Congress may
provide statutory limitations and guidelines." (Manila Electric Co. v. Province of Laguna, 366 Phil.
428, 434 [1999])
[Note: Respondents, however, cannot claim that Section 42 of the Revised Omnibus Tax Ordinance,
as amended, imposing amusement tax on golf courses, was enacted pursuant to the residual power to tax
of respondent Cebu City. A local government unit may exercise its residual power to tax when there is
neither a grant nor a prohibition by statute; or when such taxes, fees, or charges are not otherwise
specifically enumerated in the Local Government Code, National Internal Revenue Code, as amended, or
other applicable laws. In the present case, Section 140, in relation to Section 131 (c), of the Local
27
Government Code already explicitly and clearly cover amusement tax and respondent Cebu City must
exercise its authority to impose amusement tax within the limitations and guidelines as set forth in said
statutory provisions. (Alta Vista Golf and Country Club v. City of Cebu, G.R. No. 180235, January 20, 2016)]
The Congress may, by law, authorize the President to fix within specified limits, and
subject to such limitations and restrictions as it may impose, tariff rates, import and export
quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the
national development program of the Government. (Constitution, Article VI, Section 28 [2])
Speaking of its well-nigh absolute scope, Chief Justice John Marshall of the U.S. Supreme
Court once declared: ―The power to tax includes the power to destroy.‖ This dictum was to be
refuted later by Justice Holmes with the pronouncement that ―the power to tax does not include
the power to destroy as long as this Court sits.‖ Both statements may be regarded as correct, but
from different viewpoints.
The power to tax may include the power to destroy if it is used validly as an implement
of the police power in discouraging and in effect ultimately prohibiting certain things or
enterprises inimical to the public welfare. Thus, if massage parlors are found to be mere fronts
for prostitution, they may be subjected to such onerous taxes as to practically force them to stop
operating. A similar imposition, for the same purpose, may be levied upon non-useful
businesses or things, like pool halls, slot machines, or idle lands.
But where the power to tax is used solely for the purpose of raising revenues, the modern
view is that it cannot be allowed to confiscate or destroy. If this is sought to be done, the tax
may be successfully attacked as an inordinate and unconstitutional exercise of the discretion
that is usually vested exclusively in the legislature in ascertaining the amount of tax.
(Constitutional Law, Cruz and Cruz, 2015 Edition, page 184)
So potent indeed is the power that it was once opined that the power to tax involves the
power to destroy. (Philippine Health Care Providers, Inc. v. Commissioner of Internal Revenue, G.R.
No. 167330, September 18, 2009, cited in Tridharma Marketing Corporation v. Court of Tax Appeals,
G.R. No. 215950, June 20, 2016)
[Note: The power of taxation is sometimes called also the power to destroy. Therefore, it should be
exercised with caution to minimize injury to the proprietary rights of a taxpayer. It must be exercised
fairly, equally and uniformly, lest the tax collector "kill the hen that lays the golden egg." (Tridharma
Marketing Corporation v. Court of Tax Appeals, G.R. No. 215950, June 20, 2016)]
The power to tax is not the power to destroy. (See Tridharma Marketing Corporation v. Court
of Tax Appeals, G.R. No. 215950, June 20, 2016)
[Note: Petitioner claims that the assessed DST to date which amounts to P376 million is way
beyond its net worth of P259 million. Respondent never disputed these assertions. Given the realities on
the ground, imposing the DST on petitioner would be highly oppressive. It is not the purpose of the
government to throttle private business. On the contrary, the government ought to encourage private
enterprise. Petitioner, just like any concern organized for a lawful economic activity, has a right to
maintain a legitimate business. (Tridharma Marketing Corporation v. Court of Tax Appeals, G.R. No. 215950,
June 20, 2016)]
28
[Note: Legitimate enterprises enjoy the constitutional protection not to be taxed out of existence.
Incurring losses because of a tax imposition may be an acceptable consequence but killing the business of
an entity is another matter and should not be allowed. It is counter-productive and ultimately subversive
of the nation's thrust towards a better economy which will ultimately benefit the majority of our people.
(Roxas, et al. v. CTA, et al., G.R. No. L-25043, April 26, 1968, cited in Philippine Health Care Providers, Inc. v.
Commissioner of Internal Revenue, G.R. No. 167330, September 18, 2009; see Tridharma Marketing Corporation
v. Court of Tax Appeals, G.R. No. 215950, June 20, 2016)]
The rule of taxation shall be uniform… (Constitution, Article VI, Section 28 [1])
Uniformity in taxation means that persons or things belonging to the same class shall be
taxed at the same rate. (De Villata v. Stanley, 32 Phil. 541)
[Note: Thus, if cigarettes are classified into local and imported, there is observance of the
uniformity rule if all local cigarettes are taxed at P12.00 per carton, regardless of value, and all imported
cigarettes are taxed at P20.00 per carton, also regardless of value. (Constitutional Law, Cruz and Cruz,
2015 Edition, page 187)]
This should be distinguished from equality in taxation, which simply means that the tax
shall be strictly proportional to the relative value of the property. (De Villata v. Stanley, 32 Phil.
541)
[Note: Thus, even if two residential lots of equal area are taxed at the same rate, the resultant taxes
would not be the same if one of the lots is in an exclusive neighborhood and the other lot costs less
because it is in a cheaper locality. (Constitutional Law, Cruz and Cruz, 2015 Edition, page 187)]
The above rule requires a valid classification in the selection of the objects of taxation.
Higher taxes may be imposed on commercial or industrial lands than on residential lands, or on
practitioners in urban centers than in rural areas, or on luxury items than on prime
commodities, or on non-useful enterprises than on useful enterprises, or on persons with high
income than on those with low income. But taxes cannot be based on, say, differences in the
color of one‘s skin or ethnic origin as these are not regarded as substantial distinctions.
(Constitutional Law, Cruz and Cruz, 2015 Edition, page 187)
―Uniformity of taxation, like the kindred concept of equal protection, merely requires
that all subjects or objects of taxation, similarly situated, are to be treated alike both in privileges
and liabilities. Uniformity does not forfend classification as long as: (1) the standards that are
used therefor are substantial and not arbitrary, (2) the categorization is germane to achieve the
legislative purpose, (3) the law applies, all things being equal, to both present and future
conditions, and (4) the classification applies equally well to all those belonging to the same
class.‖ (Tan v. Del Rosario, Jr., G.R. No. 109289, October 3, 1994, 554 SCRA 768)
The rule of taxation shall be … equitable… (Constitution, Article VI, Section 28 [1])
Equitable taxation connotes that taxes should be apportioned among the people according
to their capacity to pay. (Constitutional Law, Cruz and Cruz, 2015 Edition, page 188)
29
… The Congress shall evolve a progressive system of taxation. (Constitution, Article VI,
Section 28 [1])
The Constitution does not really prohibit the imposition of indirect taxes which, like the
VAT, are regressive. What it simply provides is that Congress shall "evolve a progressive system
of taxation." The constitutional provision has been interpreted to mean simply that "direct taxes
are . . . to be preferred [and] as much as possible, indirect taxes should be minimized." xxx.
Indeed, the mandate to Congress is not to prescribe, but to evolve, a progressive tax system.
Otherwise, sales taxes, which perhaps are the oldest form of indirect taxes, would have been
prohibited with the proclamation of Art. VIII, §17(1) of the 1973 Constitution from which the
present Art. VI, §28(1) was taken. Sales taxes are also regressive. (Tolentino v. Secretary of Finance,
G.R. No. 115455, October 30, 1995, 235 SCRA 630)
[Note: Citing Tolentino v. Secretary of Finance (235 SCRA 630), the Court explained that –
Regressivity is not a negative standard for courts to enforce. What Congress is required by the
Constitution to do is to "evolve a progressive system of taxation." This is a directive to Congress, just like
the directive to it to give priority to the enactment of laws for the enhancement of human dignity and the
reduction of social, economic and political inequalities (Art. XIII, Section 1)] or for the promotion of the
right to "quality education" (Art. XIV, Section 1). These provisions are put in the Constitution as moral
incentives to legislation, not as judicially enforceable rights. (British American Tobacco v. Camacho, G.R.
No. 163583, August 20, 2008; British; American Tobacco v. Camacho, G.R. No. 163583, April 15, 2009)]
To sustain a tax, it is necessary to show that the proceeds are devoted to a public purpose.
(Planters Products, Inc. v. Fertiphil Corporation, G.R. No. 166006, March 14, 2008, 548 SCRA 485.)
Double Taxation
There is no provision in the Constitution specifically prohibiting double taxation. Our
Supreme Court had not until recently categorically held that double or multiple taxation is
prohibited in our jurisdiction. (Constitutional Law, Cruz and Cruz, 2015 Edition, page 188)
[Note: Justice Holmes is authority for the view that double taxation is no more prohibited than
doubled taxation, as when a thing is taxed once at P250.00 and taxed again at another P250.00 while a
similar thing is taxed only one at P500.00. ―The power to tax twice,‖ it is said, ―is as ample as to tax once.‖
(Cooley on Taxation, Vol. I, 4th ed., p. 48)]
There is double taxation when additional taxes are laid on the same subject by the same
taxing jurisdiction during the same taxing period and for the same purpose. (Cooley on
Taxation, Vol. I, 4th ed., pp. 475-476)
Double taxation means taxing the same property twice when it should be taxed only once;
that is, "taxing the same person twice by the same jurisdiction for the same thing." It is
obnoxious when the taxpayer is taxed twice, when it should be but once. Otherwise described
as "direct duplicate taxation," the two taxes must be imposed on the same subject matter, for the
same purpose, by the same taxing authority, within the same jurisdiction, during the same
taxing period; and the taxes must be of the same kind or character. (Swedish Match Philippines,
Inc. v. The Treasurer of the City of Manila, G.R. No. 181277, July 3, 2013, 700 SCRA 428, citing The
30
City of Manila v. Coca-Cola Bottlers Philippines, Inc., G.R. No. 181845, August 4, 2009, 595 SCRA
299)
[Note: Thus, if a person‘s properties are each taxed separately and thereafter all of them are again
taxed, this time collectively, by the same taxing jurisdiction for the same purpose and during the same
taxing period, the second imposition would constitute double taxation. (Constitutional Law, Cruz and
Cruz, 2015 Edition, pages 188-189)]
A second tax on the same individual or property may constitute a violation of the equal
protection clause. Petitioner should not have been subjected to taxes under Section 21 of the
Manila Revenue Code for the fourth quarter of 2001, considering that it had already been
paying local business tax under Section 14 of the same ordinance. (Swedish Match Philippines, Inc.
v. The Treasurer of the City of Manila, G.R. No. 181277, July 3, 2013)
Using the aforementioned test, the Court finds that there is indeed double taxation if
respondent is subjected to the taxes under both Sections 14 and 21 of Tax Ordinance No. 7794,
since these are being imposed: (1) on the same subject matter – the privilege of doing business
in the City of Manila; (2) for the same purpose – to make persons conducting business within
the City of Manila contribute to city revenues; (3) by the same taxing authority – petitioner City
of Manila; (4) within the same taxing jurisdiction – within the territorial jurisdiction of the City
of Manila; (5) for the same taxing periods – per calendar year; and (6) of the same kind or
character – a local business tax imposed on gross sales or receipts of the business. (Swedish
Match Philippines, Inc. v. The Treasurer of the City of Manila, G.R. No. 181277, July 3, 2013, 700
SCRA 428, citing The City of Manila v. Coca-Cola Bottlers Philippines, Inc., G.R. No. 181845, August
4, 2009, 595 SCRA 299)
In Punzalan v. Municipal Board of Manila (95 Phil. 46), the defendant levied an additional
tax of P25.00 on professionals practicing in Manila who were already paying the P50.00
occupation tax required under the revised Internal Revenue Code. The petitioners challenged
the second tax as double taxation and asked that it be annulled. The Supreme Court held
against them, observing that the two taxes had been imposed by different jurisdictions, one by
the national government and the other by the city government.
[Note: Despite the lack of a specific prohibition, however, double taxation will not be allowed if it
results in a violation of the equal protection clause. (Constitutional Law, Cruz and Cruz, 2015 Edition,
page 189; see Punzalan v. Municipal Board of Manila, 95 Phil. 46)]
[Note: In the Punzalan case, the Supreme Court said there was no violation of the equal protection
clause because there was a substantial distinction between practitioners in Manila as opposed to
practitioners elsewhere, who earned less.]
Article VI
No law granting any tax exemption shall be passed without
the concurrence of a majority of all the Members of the Congress.
(Section 28, [4])
31
Charitable institutions, churches and personages or convents
appurtenant thereto, mosques, non-profit cemeteries, and all lands,
buildings, and improvements, actually, directly, and exclusively
used for religious, charitable, or educational purposes shall be
exempt from taxation. (Section 28, [3])
This tax exemption covers only real estate taxes. (Lladoc v. Commissioner of Internal
Revenue, 14 SCRA 292; Commissioner of Internal Revenue v. St. Luke's Medical Center, Inc., G.R.
Nos. 195909 and 195960, September 26, 2012)
Article XIV
Section 4. (3) All revenues and assets of non-stock, non-profit educational
institutions used actually, directly, and exclusively for educational purposes
shall be exempt from taxes and duties. Upon the dissolution or cessation of the
corporate existence of such institutions, their assets shall be disposed of in the
manner provided by law.
Proprietary educational institutions, including those cooperatively
owned, may likewise be entitled to such exemptions subject to the limitations
provided by law including restrictions on dividends and provisions for
reinvestment.
(4) Subject to conditions prescribed by law, all grants, endowments,
donations, or contributions used actually, directly, and exclusively for
educational purposes shall be exempt from tax.
II. BILL OF RIGHTS
Due Process
Due process is a guaranty against any arbitrariness on the part of the government,
whether committed by the legislature, the executive, or the judiciary. xxx. Any government act
that militates against the ordinary norms of justice or fair play is considered an infraction of the
great guaranty of due process; and this is true whether the denial involves violation merely of
the procedure prescribed by the law or affects the validity of the law itself. (Constitutional Law,
Cruz and Cruz, 2015 Edition, pages 205-206)
Due process of law has two aspects: substantive and procedural. In order that a particular
act may not be impugned as violative of the due process clause, there must be compliance with
both the substantive and the procedural requirements thereof. (Alliance for the Family Foundation,
Philippines, Inc. v. Garin, August 24, 2016, Resolution on the Partial Motion for Reconsideration,
G.R. No. 217872/G.R. No. 221866, April 26, 2017)
Substantive due process refers to the intrinsic validity of a law that interferes with the
rights of a person... (Alliance for the Family Foundation, Philippines, Inc. v. Garin, August 24, 2016,
32
Resolution on the Partial Motion for Reconsideration, G.R. No. 217872/G.R. No. 221866, April
26, 2017)
[Note: Substantive due process requires the intrinsic validity of the law in interfering with the
rights of the person to his life, liberty or property. The inquiry in this regard is not whether or not the law
is being enforced in accordance with the prescribed manner but whether or not, to begin with, it is a
proper exercise of legislative power. To be so, the law must have a valid governmental objective, i.e., the
interests of the public generally as distinguished from those of a particular class require the intervention
of the State. Furthermore, this objective must be pursued in a lawful manner, or, in other words, the
means employed must be reasonably related to the accomplishment of the purpose and not unduly
oppressive. (Constitutional Law, Cruz and Cruz, 2015 Edition, pages 213-214)]
Procedural due process, on the other hand, means compliance with the procedures or
steps, even periods, prescribed by the statute, in conformity with the standard of fair play and
without arbitrariness on the part of those who are called upon to administer it. (Alliance for the
Family Foundation, Philippines, Inc. v. Garin, August 24, 2016, Resolution on the Partial Motion for
Reconsideration, G.R. No. 217872/G.R. No. 221866, April 26, 2017)
Mere privileges, such as a license to operate a cockpit (Pedro v. Prov. Board of Rizal, 56 Phil.
123, 132 [1931], cited in Du v. Jayoma, G.R. No. 175042, April 23, 2012, 670 SCRA 333) or a liquor
store (Board v. Barrio, 24 N.Y. 659) are not property rights and are therefore revocable at will.
The concept of ―vested right‖ is a consequence of the constitutional guaranty of due
process that expresses a present fixed interest which in right reason and natural justice is
protected against arbitrary state action; it includes not only legal or equitable title to the
enforcement of a demand but also exemptions from new obligations created after the right has
become vested. Rights are considered vested when the right to enjoyment is a present interest,
absolute, unconditional, and perfect or fixed and irrefutable. (ABAKADA Guro Party List Officer
Samson S. Alcantara v. The Hon. Executive Secretary Eduardo R. Ermita, G.R. No. 168056; Pimentel,
Jr. v. Executive Secretary Eduardo R. Ermita, G.R. No. 168207; Association of Pilipinas Shell Dealers,
Inc. v. Cesar V. Purisima, G.R. No. 168461; Escudero v. Cesar V. Purisima, G.R. No. 168463; and
Garcia, Jr. v. Ermita, G.R. No. 168730, September 1, 2005, October 18, 2005, see 469 SCRA 1; see
also Heirs of Arcadio Castro Sr. v. Lozada, G.R. No. 163026, August 29, 201, 679 SCRA 271)
[Note: Respondent's lease agreement with MERALCO Financing Services Corporation and its
having secured permits from local government units, for the specific purpose of putting up advertising
banners and signages, gave it the right to put up such banners and signages. Respondent had in its favor
a property right, of which it cannot be deprived without due process. This is respondent's right in esse,
that is, an actual right. It is not merely a right in posse, or a potential right. (Department of Public Works and
Highways v. City Advertising Ventures Corporation, G.R. No. 182944, November 9, 2016)]
The compulsory sterilization of incurable hereditary imbeciles was considered all right
since the operation only involved ―a minimum of pain, or none at all.‖ (Buck v. Bell, 274 US 200)
A law prohibiting the sale of milk for less than the specified minimum or floor price, to
prevent the lowering of the quality of milk sold in the market, upheld as valid. (Nebbia v. State
of New York, 291 US 502)
33
A municipal ordinance which required all laundry establishments to issue their receipts in
English or Spanish was upheld as valid, as the measure was intended to protect the public from
deceptions and misunderstandings that might arise from their accepting receipts in Chinese
characters that they did not understand. (Kwong Sing v. City of Manila, 41 Phil. 103)
On the other hand, a law which prohibited merchants from maintaining its books of
accounts in any language other than English, Spanish or any other local dialect was considered
invalid because it prevented merchants from using other languages, including their own. (Yu
Cong Eng v. Trinidad, 271 US 500)
The Supreme Court considered as confiscatory a municipal ordinance prohibiting the
construction on residential land of any building that might obstruct the view of the public plaza
from the highway. (People v. Fajardo, 104 SCRA 443)
A law which provides for a three-month cap on claims of overseas workers with an
unexpired portion of one year or more in their contracts, but none on the claims of other
overseas or local workers with fixed-term employment is violative of the right to substantive
due process because the law deprives workers of property, consisting of monetary benefits,
―without any existing valid governmental purpose.‖ (Serrano v. Gallant Maritime Services, Inc.,
G.R. No. 167614, March 24, 2009, 582 SCRA 254; Yap v. Thenamaris Ship’s Management and
Intermare Maritime Agencies, Inc., G.R. No. 179532, May 30, 2011, 649 SCRA 369)
We find for the respondents. The impossibility of carrying out a shift to another mode of
pesticide application within three months can readily be appreciated given the vast area of the
affected plantations and the corresponding resources required therefor. To recall, even the RTC
recognized the impracticality of attaining a full-shift to other modes of spraying within three
months in view of the costly financial and civil works required for the conversion. (Mosqueda v.
Pilipino Banana Growers and Exporters Association, Inc., G.R. No. 189185, August 16, 2016)
Succinctly, Section 11 of the AMLA providing for ex-parte application and inquiry by the
AMLC into certain bank deposits and investments does not violate substantive due process,
there being no physical seizure of property involved at that stage. It is the preliminary and
actual seizure of the bank deposits or investments in question which brings these within reach
of the judicial process, specifically a determination that the seizure violated due process.
(Subido, Pagente, Certeza, Mendoza and Binay Law Offices v. The Court of Appeals, G.R. No. 216914,
December 6, 2016)
The proviso as of the date of his retirement in Section 12-B(d) of Rep. Act No. 8282 runs
afoul of the due process clause as it outrightly deprives the surviving spouses whose respective
marriages to the retired SSS members were contracted after the latter‘s retirement of their
survivors benefits. (Dycaico v. Social Security System, G.R. No. 161357, November 30, 2005, 476
SCRA 538)
Contrary to the petitioner‘s contention, the assailed JBC policy need not be filed in the
ONAR because the publication requirement in the ONAR (University of the Philippines Law
Center Office of the National Administrative Register) is confined to issuances of administrative
agencies under the Executive branch of the government. Since the JBC is a body under the
34
supervision of the Supreme Court, it is not covered by the publication requirements of the
Administrative Code. (Villanueva v. Judicial and Bar Council, G.R. No. 211833, April 7, 2015)
Nevertheless, the assailed JBC policy requiring five years of service as judges of first-level
courts before they can qualify as applicants to second-level courts should have been published.
As a general rule, publication is indispensable in order that all statutes, including
administrative rules that are intended to enforce or implement existing laws, attain binding
force and effect. There are, however, several exceptions to the requirement of publication, such
as interpretative regulations and those merely internal in nature, which regulate only the
personnel of the administrative agency and not the public. Neither is publication required of the
so-called letters of instructions issued by administrative superiors concerning the rules or
guidelines to be followed by their subordinates in the performance of their duties. (Villanueva v.
Judicial and Bar Council, G.R. No. 211833, April 7, 2015)
The following are the requirements of procedural due process in judicial proceedings:
[1] There must be an impartial court or tribunal clothed with judicial power to hear
and determine the case;
[2] jurisdiction must be lawfully acquired over the person and the property subject
of the proceeding proper service of summons;
[3] the defendant must be given an opportunity to be heard;
[4] judgment must be rendered upon lawful hearing. (See Banco Español v. Palanca,
37 Phil. 921)
Among the instances when notice of hearing may be validly omitted without violating
due process are the cancellation of a passport of a fugitive from justice or of a person sought for
criminal prosecution (Suntay v. People, 101 Phil. 833); the preventive suspension of a civil servant
(Alonzo v. Capulong, 244 SCRA 80; see also Gloria v. Court of Appeals, 306 SCRA 287); in cases of
distraint of property for tax delinquency (National Internal Revenue Code, Section 205); the
padlocking of unsanitary restaurant or movie theaters showing obscene movies; the
replacement of a temporary or acting appointee (Tolentino v. de Jesus, 56 SCRA 167); the issuance
of temporary protection orders (Garcia v. Drilon, G.R. No. 179267, June 25, 2013, 699 SCRA 352)
and writs of preliminary attachment (Cuartero v. Court of Appeals, G.R. No. 102448, August 5,
1992, 212 SCRA 260) or writs of possession (Nagtalon v. United Coconut Planters Bank, G.R. No.
172504, July 31, 2013, 702 SCRA 615), and nuisances per se. (Civil Code, Article 704)
Prevailing jurisprudence holds that unless a nuisance is a nuisance per se, it may not be
summarily abated. (Cruz and De la Cruz v. Pandacan Hikers’ Club, Inc., G.R. No. 188213, January
11, 2016)
A gasoline filling station is not a nuisance per se. Accordingly, its operations may be
ordered stopped only after judicial proceedings. (Parayno v. Jovellanos, 495 SCRA 85) Also not
considered as nuisances per se which may be summarily abated are a market stall unaffected by
a fire (Asilo v. People, G.R. No. 159017-18, March 9, 2011, 645 SCRA 41); the wing walls of a
building (Gancayco v. City Government of Quezon City, G.R. No. 177807, October 11, 2011, 658
SCRA 853); a fence considered as partially encroaching upon a sidewalk (Perez v. Spouses
Madrona and Pante, G.R. No. 184478, March 21, 2012, 668 SCRA 696); a storage facility for copra
35
in a quonset building, which is considered as a legitimate business (Lucena Grand Central
Terminal, Inc. v. JAC Liner, Inc., G.R. No. 148339, February 23, 2005, 452 SCRA 174, 191); cellsite
towers (Smart Communications, Inc. v. Aldecoa, G.R. No. 166330, September 11, 2013, 705 SCRA
392); or noise emanating from a blower of air conditioning units. (AC Enterprises, Inc. v.
Frabelle Properties Corporation, 537 Phil. 114, 143 [2006]; 506 SCRA 625)
[Note: It has been held though that the ―the Building Official has the authority to order the
condemnation and demolition of buildings which are found to be in a dangerous or ruinous condition.‖
(Chua Huat v. Court of Appeals, G.R. Nos. 53851 and 63863, July 9, 1991, 199 SCRA 1) The authority of the
Building Official to order the repair, vacation or demolition is without prejudice to further action that
may be undertaken under the relevant provisions of the Civil Code. (Spouses Genoblazo v. Court of Appeals,
255 Phil. 832, 839 (1989), 174 SCRA 124, cited in Hipolito v. Cinco, G.R. No. 174143, November 28, 2011, 661
SCRA 312)]
[Note: In Gancayco v. City Government of Quezon City (G.R. No. 177807, October 11, 2011, 658 SCRA
853, citing AC Enterprises v. Frabelle Properties Corp., G.R. No. 166744, November 2, 2006, 506 SCRA 625),
the Supreme Court clarified that the MMDA does not have the power to declare a thing a nuisance. Only
courts of law have the power to determine whether a thing is a nuisance.]
In the case at bar, the hotel, in itself, cannot be considered as a nuisance per se since this
type of nuisance is generally defined as an act, occupation, or structure, which is a nuisance at
all times and under any circumstances, regardless of location or surrounding. Here, it is merely
the hotel‘s particular incident––its location––and not its inherent qualities that rendered it a
nuisance. Otherwise stated, had it not been constructed in the no build zone, Boracay West
Cove could have secured the necessary permits without issue. As such, petitioner is correct that
the hotel is not a nuisance per se, but to Our mind, it is still a nuisance per accidens. (Aquino v.
Municipality of Malay, Aklan, G.R. No. 211356, September 29, 2014)
Given the presence of the requirements under Sec. 444 (b)(3)(vi) of the LGC, whether the
building constituted a nuisance per se or a nuisance per accidens becomes immaterial. The hotel
was demolished not exactly because it is a nuisance but because it failed to comply with the
legal requirements prior to construction. It just so happened that, in the case at bar, the hotel‘s
incident that qualified it as a nuisance per accidens––its being constructed within the no build
zone––further resulted in the non-issuance of the necessary permits and clearances, which is a
ground for demolition under the LGC. Under the premises, a court order that is required under
normal circumstances is hereby dispensed with. (Aquino v. Municipality of Malay, Aklan, G.R. No.
211356, September 29, 2014)
It can easily be gleaned that the Torre de Manila is not a nuisance per se. The Torre de
Manila project cannot be considered as a "direct menace to public or safety." Not only is a
condominium project commonplace in the City of Manila, DMCI-PDI has, according to the
proper government agencies, complied with health and safety standards set by law. (Knights of
Rizal v. DMCI Homes, Inc., G.R. No. 213948, April 25, 2017)
The right to appeal is not essential to the right to a hearing. Except when guaranteed by
the Constitution, appeal may be allowed or denied by the legislature in its discretion. If allowed
by statute, it must be exercised strictly in accordance with the provisions of the law and rules.
(Province of Camarines Sur v. Heirs of Agustin Pato, G.R. No. 151084, July 2, 2010, 622 SCRA 644.)
36
Section 14 of Article VIII of the Constitution provides: ―No decision shall be rendered by
any court without expressing therein clearly and distinctly the facts and the law on which it is
based. No petition for review or motion for reconsideration of a decision of the court shall be
refused due course or denied without stating the legal basis therefor.‖
[Note: A judgment directing payment of a monetary award at a ―5% monthly interest rate‖ is not
supported both by the allegations in the pleadings and the evidence on record… It violated the due
process requirement because respondents were not informed of the possibility that the RTC may award
5% monthly interest. They were deprived of reasonable opportunity to refute and present controverting
evidence as they were made to believe that the complainant petitioner was seeking for what she merely
stated in her Complaint. (Diona v. Balangue, G.R. No. 173559, January 7, 2013, 688 SCRA 22)]
―The Court has, in a long line of cases, stated that due process in administrative
proceedings requires compliance with the following cardinal principles: (1) the respondents'
right to a hearing, which includes the right to present one's case and submit supporting
evidence, must be observed; (2) the tribunal must consider the evidence presented; (3) the
decision must have some basis to support itself; (4) there must be substantial evidence; (5) the
decision must be rendered on the evidence presented at the hearing, or at least contained in the
record and disclosed to the parties affected; (6) in arriving at a decision, the tribunal must have
acted on its own consideration of the law and the facts of the controversy and must not have
simply accepted the views of a subordinate; and (7) the decision must be rendered in such
manner that the respondents would know the reasons for it and the various issues involved.
(Civil Service Commission v. Juen, G.R. No. 200577, August 17, 2016)
[Note: ―In administrative proceedings, procedural due process has been recognized to include the
following: (1) the right to actual or constructive notice of the institution of proceedings which may affect a
respondent‘s legal rights; (2) a real opportunity to be heard personally or with the assistance of counsel,
to present witnesses and evidence in one‘s favor, and to defend one‘s rights; (3) a tribunal vested with
competent jurisdiction and so constituted as to afford a person charged administratively a reasonable
guarantee of honesty as well as impartiality; and (4) a finding by said tribunal which is supported by
substantial evidence submitted for consideration during the hearing or contained in the records or made
known to the parties affected.‖ (Anillo v. Commission on the Settlement of Land Problems, G.R. No. 157856,
September 27, 2007; see also Montoya v. Varilla, G.R. No. 180146, December 18, 2008)]
These ―cardinal rights or principles‖ provided for in Ang Tibay are not applicable to
preliminary investigations, which, as previously stressed, are not quasi-judicial proceedings.
(Bautista v. Court of Appeals, G.R. No. 143375, July 6, 2001, 413 Phil. 159, cited in Santos v. Go, G.R.
No. 156081, October 19, 2005, cited in Estrada v. Office of the Ombudsman, G.R. Nos. 212140-41,
January 21, 2015)
Prior notice and hearing are not essential to the validity of rules or regulations issued in
the exercise of quasi-legislative powers (Abella, Jr. v. Civil Service Commission, G.R. No. 152574,
November 17, 2004, 442 SCRA 507, 521; see also Corona v. United Harbor Pilots Association of the
Philippines, 347 Phil. 333, 342, December 12, 1997; Philippine Consumers Foundation, Inc. v.
Secretary of Education, Culture and Sports, 153 SCRA 622, 628, August 31, 1987; Taxicab Operators
of Metro Manila, Inc. v. Board of Transportation, 202 Phil. 925, 934, September 30, 1982; Central Bank
of the Philippines v. Cloribel, 150-A Phil. 86, 101, April 11, 1972) since there is no determination of
37
past events or facts that have to be established or ascertained. (Dagan v Philippine Racing
Commission, G.R. No. 175220, February 12, 2009
―Thus, the right to counsel is not imperative in administrative investigations because such
inquiries are conducted merely to determine whether there are facts that merit disciplinary
measures against erring public officers and employees, with the purpose of maintaining the
dignity of government service.‖ (Perez v. People, G.R. No. 164763, February 12, 2008; see also
Vivo v. Philippine Amusement and Gaming Corporation, G.R. No.187854, November 12, 2013)
In fact, the hearings before such agencies do not connote full adversarial
proceedings. Thus, it is not necessary for the rules to require affiants to appear and testify and
to be cross-examined by the counsel of the adverse party. To require otherwise would negate
the summary nature of the administrative or quasi-judicial proceedings.‖ (Securities and
Exchange Commission v. Interport Resources Corporation, G.R. No. 135808, October 6, 2008)
Equal Protection
Equal protection simply requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities imposed. (Ichong v. Hernandez, 101
Phil. 1155) Similar subjects, in other words, should not be treated differently, so as to give
undue favor to some and unjustly discriminate against others. (Constitutional Law, Cruz and
Cruz, 2015 Edition, page 247)
The equal protection clause is available to all persons, natural as well as juridical.
Artificial persons, however, are entitled to the protection only insofar as their property is
concerned. (Smith, Bell v. Natividad, 40 Phil. 136)
Classification has been defined as the grouping of persons or things similar to each other
in certain particulars and different from all others in these same particulars. (International
Harvester Co. v. Missouri, 234 U.S. 199)
Classification, to be reasonable, must (1) rest on substantial distinctions; (2) be germane to
the purpose of the law; (3) not be limited to existing conditions only; and (4) apply equally to all
members of the same class. (Philippine Association of Detective and Protective Agency Operators
[PADPAO] v. Commission on Elections, G.R. No. 223505, October 3, 2017)
In Yick Wo v. Hopkins (118 U.S. 356), an ordinance authorizing the board of supervisors to
license the establishment of laundries in an American city was annulled by the U.S. Supreme
Court after finding that all Chinese applicants for such license had been systematically rejected
whereas all other applications but one had been approved. It declared Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and
administered by public authority with an evil eye and an unequal hand, so as practically to make
unjust and illegal discriminations between persons in similar circumstances, material to their
rights, the denial of equal justice is still within the prohibition of the Constitution. (Yick Wo v.
Hopkins, 118 U.S. 356 [1886])
38
Superficial distinctions do not make for a valid classification. The distinction, to be valid,
must be substantial. As a general statement only, the law cannot validly distinguish on the basis
of the attire of women, or the color of vehicles, or the source of native products, or the emotions
of persons, or the texture of their complexion, or the shape of their eyes, or the length of their
hair. (Constitutional Law, Cruz and Cruz, 2015 Edition, page 253)
As such, we hold that moral disapproval, without more, is not a sufficient governmental interest
to justify exclusion of homosexuals from participation in the party-list system. The denial of Ang Ladlad’s
registration on purely moral grounds amounts more to a statement of dislike and disapproval of
homosexuals, rather than a tool to further any substantial public interest. Respondent‘s blanket
justifications give rise to the inevitable conclusion that the COMELEC targets homosexuals themselves
as a class, not because of any particular morally reprehensible act. It is this selective targeting that
implicates our equal protection clause. (Ang Ladlad LGBT Party v. Commission on Elections, G.R. No.
190582, April 8, 2010, 618 SCRA 32)
Examples of valid classifications based on substantial distinctions are – citizens and aliens
(Ichong v. Hernandez, 101 Phil. 1155); the law which provided that 65-year old retirees from elective
offices would not allowed to run for same office from which they have retired (Dumlao v. COMELEC,
G.R. No. L-52245, January 22, 1980, 95 SCRA 392); highly urbanized and component cities (Ceniza v.
COMELEC, 96 SCRA 763); Republic Act 6770, which authorizes the Ombudsman to impose a six-month
preventive suspension (Gobenciong v. Court of Appeals, G.R. No. 159883, March 31, 2008); appointive and
elective officials (Quinto v. COMELEC, G.R. No. 189698, December 1, 2009, Resolution on the Motion for
Reconsideration, February 22, 2010; see also Salumbides v. Office of the Ombudsman, G.R. No. 180917, April
23, 2010, 619 SCRA 313); municipalities with pending cityhood bills prior to the subsequent passage of
a law increasing the revenue requirement of cities [to P100T] and those which seek cityhood on the
basis of the new law (League of Cities of the Philippines v. COMELEC, G.R. No. 176951, February 15, 2011,
643 SCRA 150; see Resolution on the Motion for Reconsideration dated June 28, 2011, 652 SCRA 798; see
also League of Cities of the Philippines v. COMELEC, G.R. No. 176951, April 12, 2011, 648 SCRA 344);
barangay officials and other local elective officials (because the Constitution itself provides a
significant distinction between these elective officials with respect to length of term and term
limitation) (COMELEC v. Cruz, G.R. No. 186616, November 20, 2009); Filipino female domestics
working abroad and other Filipino female workers (Philippine Association of Service Exporters v. Drilon,
163 SCRA 386); SSS members who availed themselves of a statutory amnesty and those who did not
(Mendoza v. People, G.R. No. 183891, October 19, 2011, 659 SCRA 681); presidential appointees occupying
upper-level positions in government from non-presidential appointees and those that occupy the
lower positions in government. (Pichay v. Office of the Deputy Executive Secretary for Legal Affairs
Investigative and Adjudication Division, G.R. No. 196425, July 24, 2012); women and men (Garcia v. Drilon,
G.R. No. 179267, June 25, 2013, 699 SCRA 35); internet user using his real name and one who, in bad
faith, uses an alias “or take(s) the name of another in satire, parody, or any other literary device”
(Disini v. Secretary of Justice, G.R. No. 203335, February 18, 2014); juridical persons and natural persons
with respect to exercise of the right of redemption (Goldenway Merchandising Corporation v. Equitable PCI
Bank (G.R. No. 195540, March 13, 2013, 693 SCRA 439); vehicle-drawing and non-vehicle drawing
animals (People v. Solon, 110 Phil. 39, 41 [1960]); regular employees and consultants (Bases Conversion and
Development Authority v. Commission on Audit, G.R. No. 178160, February 26, 2009, 580 SCRA 295);
applicability of certain exemptions in the conduct of preliminary investigations (Spouses Dacudao v.
Secretary of Justice, G.R. No. 188056, January 8, 2013, 688 SCRA 109); work experience (Villanueva v.
Judicial and Bar Council, G.R. No. 211833, April 7, 2015); senior citizens (Southern Luzon Drug Corporation v.
The Department of Social Welfare and Development, G.R. No. 199669, April 25, 2017); persons with
disabilities (Southern Luzon Drug Corporation v. The Department of Social Welfare and Development, G.R. No.
199669, April 25, 2017); dates of employment with respect to salary standardization (Zamboanga City
39
Water District v. Commission on Audit, G.R. No. 213472, January 26, 2016); public officers and private
persons with respect to authority to carry firearms (Philippine Association of Detective and Protective
Agency Operators [PADPAO] v. Commission on Elections, G.R. No. 223505, October 3, 2017); payors and
payees in terms of BP Blg. 22 (Lozano v. Martinez, G.R. No. L-63419, December 18, 1986, 146 SCRA 323);
and the three-flunk rule with respect to the National Medical Admission Test (Department of Education,
Culture and Sports v. San Diego, G.R. No. 89572, December 21, 1989, 180 SCRA 533).
There is, thus, a legitimate government interest in the protection of the banking industry
and a legitimate government interest in the protection of foreclosed residential properties
owned by natural persons. The shortened period of redemption for juridical entities may be
considered to be the reasonable means for the protection of both these interests. (Zomer
Development Company, Inc. v. Special 20th Division of the Court of Appeals, G.R. No. 194461, January
7, 2020)
―Evidently, the ordinance discriminates against large farmholdings that are the only ideal
venues for the investment of machineries (sic) and equipment capable of aerial spraying. It
effectively denies the affected individuals the technology aimed at efficient and cost-effective
operations and cultivation not only of banana but of other crops as well. The prohibition against
aerial spraying will seriously hamper the operations of the banana plantations that depend on
aerial technology to arrest the spread of the Black Sigatoka disease and other menaces that
threaten their production and harvest. As earlier shown, the effect of the ban will not be limited
to Davao City in view of the significant contribution of banana export trading to the country's
economy. The discriminatory character of the ordinance makes it oppressive and unreasonable
in light of the existence and availability of more permissible and practical alternatives that will
not overburden the respondents and those dependent on their operations as well as those who
stand to be affected by the ordinance.‖ (Mosqueda v. Pilipino Banana Growers and Exporters
Association, Inc., G.R. No. 189185, August 16, 2016)
There is a substantial distinction between employers who paid prior and subsequent to
R.A. No. 9903's effectivity. (H. Villarica Pawnshop, Inc. v. Social Security Commission, G.R. No.
228087, January 24, 2018)
[Note: Significantly, petitioners have already paid not only their delinquent contributions but also
their corresponding penalties before the enactment and effectivity of R.A. No. 9903. Because of this
observation, petitioners cannot anymore be considered as "delinquent" under the purview of R.A. No.
9903 and are not within the class of "delinquent employers." Simply put, they are not similarly situated
with other employers who are delinquent at the time of the law's effectivity. Accordingly, Congress may
treat petitioners differently from all other employers who may have been delinquent. (H. Villarica
Pawnshop, Inc. v. Social Security Commission, G.R. No. 228087, January 24, 2018)]
A ―classification freeze‖ provided for in a tax measure, acknowledging that it ―addressed
Congress‘s administrative concerns in the simplification of tax administration of sin products,
elimination of potential areas for abuse and corruption in tax collection, buoyant and stable
revenue generation, and ease of projection of revenues‖ is not violative of the equal protection
clause. (British American Tobacco v. Camacho, G.R. No. 163583, August 20, 2008, 562 SCRA 511;
British American Tobacco v. Camacho, G.R. No. 163583, April 15, 2009, 585 SCRA 36)
40
The distinction between men and women is germane to the purpose of R.A. 9262, which is
to address violence committed against women and children, as spelled out in its Declaration of
Policy. (Garcia v. Drilon, G.R. No. 179267, June 25, 2013)
The special system of rewards and sanctions provided for under a law for the benefit of
the employees of the Bureau of Internal Revenue and the Bureau of Customs, which are both
under the Department of Finance, is not offensive to the equal protection clause. ―They
principally perform the special function of being the instrumentalities through which the State
exercises one of its great inherent functions — taxation. Indubitably, such substantial distinction
is germane and intimately related to the purpose of the law. Hence, the classification and
treatment accorded to the BIR and the BOC under RA [No.] 9335 fully satisfy the demands of
equal protection.‖ (Bureau of Customs Employees Association v. Teves, G.R. No. 181704, December
6, 2011, 661 SCRA 589, citing Abakada Guro Party List v. Purisima, G.R. No. 166715, August 14,
2008, 562 SCRA 251)
As explained in Aquino v. Philippine Ports Authority, the distinction between employees
hired before and after July 1, 1989 was based on reasonable differences which was germane to
the objective of the SSL to standardize the salaries of government employees. (Zamboanga City
Water District v. Commission on Audit, G.R. No. 213472, January 26, 2016)
Accordingly, a law which prohibited members of non-Christian tribes form drinking
liquor, on the ground that their low degree of culture and their unfamiliarity with this kind of
drink rendered them more susceptible to its effects as compared to more civilized countrymen
who were not affected by it, has been sustained. (People v. Cayat, 68 Phil. 12)
A ―municipal tax equivalent to one per centum (1%) per export sale to the United States of
America and other foreign countries‖ was imposed ―on any and all productions of centrifugal
sugar milled at the Ormoc Sugar Co., Inc. in Ormoc City.‖ The Supreme Court considered said
classification limited to existing conditions only, as the tax measure would not be applicable to
similar companies which may be established in the same taxing jurisdiction in the future.
(Ormoc Sugar Co., Inc. v. Treasurer of Ormoc City, 22 SCRA 603)
―The application of R.A. 9262 is not limited to the existing conditions when it was
promulgated, but to future conditions as well, for as long as the safety and security of women
and their children are threatened by violence and abuse.‖ (Garcia v. Drilon, G.R. No. 179267,
June 25, 2013, 699 SCRA 352)
In People v. Vera (G.R. No. L-45685, November 16, 1937, 65 Phil. 56), the old Probation Law
provided, among others, that the probation system shall be applicable ―only in those provinces
in which the respective provincial boards have provided for the salary of a probation officer.‖
In International School Alliance of Educators v. Quisumbing (G.R. No. 128845, June 1, 2000,
333 SCRA 13 [2000]), the local-hire faculty members of the International School, mostly
Filipinos, complained against the better treatment of their colleagues who have been hired
abroad. These foreign-hires enjoy certain benefits not accorded the local-hires, among them
housing, transportation, shipping costs, taxes, home leave travel allowance, and a salary rate
41
25% higher than that of the local-hires. The reason given by the School was twofold, to wit, the
―dislocation factor‖ and the limited tenure of the foreign-hires.
In Tatad v. Secretary of Energy (281 SCRA 330 [1997]), the Supreme Court declared as
unconstitutional the law deregulating the oil industry on the ground inter alia that it
discriminated against the ―new players,‖ as it called them, insofar as it placed them at a
competitive disadvantage vis-a-vis the established oil companies by requiring them to meet
certain conditions already being observed by the latter.
The subject clause contains a suspect classification in that, in the computation of the
monetary benefits of fixed-term employees who are illegally discharged, it imposes a 3-month
cap on the claim of OFWs with an unexpired portion of one year or more in their contracts, but
none on the claims of other OFWs or local workers with fixed-term employment. The subject
clause singles out one classification of OFWs and burdens it with a peculiar disadvantage.
Serrano v. Gallant Maritime Services, Inc. (G.R. No. 167614, March 24, 2009, 582 SCRA 254; see also
Yap v. Thenamaris Ship’s Management and Intermare Maritime Agencies, Inc., G.R. No. 179532, May
30, 2011, 649 SCRA 369)
There is no substantial distinction between the petitioner, who was tried and convicted by
a military court, and those tried and convicted by regular courts in terms of their rights as
accused. It declared that the petitioner ―belongs to the class of those who have been convicted
by any court; thus, he is entitled to the rights accorded to them. Clearly, there is no substantial
distinction between those who are convicted of offenses which are criminal in nature under
military courts and the civil courts.‖ (Garcia v. Executive Secretary, G.R. No. 198554, July 30, 2012,
677 SCRA 750)
The clear mandate of the envisioned truth commission is to investigate and find out the
truth ―concerning the reported cases of graft and corruption during the previous administration”
only. The intent to single out the previous administration is plain, patent and manifest. It must
be borne in mind that the Arroyo administration is but just a member of a class, that is, a class of
past administrations. It is not a class of its own. Not to include past administrations similarly
situated constitutes arbitrariness which the equal protection clause cannot sanction. Such
discriminating differentiation clearly reverberates to label the commission as a vehicle for
vindictiveness and selective retribution. (Biraogo v. The Philippine Truth Commission of 2010, G.R.
No. 192935, December 10, 2010)
Unfortunately, CMO 27-2003 does not meet these requirements. We do not see how the
quality of wheat is affected by who imports it, where it is discharged, or which country it came
from. Thus, on the one hand, even if other millers excluded from CMO 27-2003 have imported
food grade wheat, the product would still be declared as feed grade wheat, a classification
subjecting them to 7% tariff. On the other hand, even if the importers listed under CMO 27-2003
have imported feed grade wheat, they would only be made to pay 3% tariff, thus depriving the
state of the taxes due. The regulation, therefore, does not become disadvantageous to
respondent only, but even to the state. (Commissioner of Customs v. Hypermix Feeds Corporation,
G.R. No. 179579, February 1, 2012)
42
The last paragraph of Section 5.24 of the RH-IRR reads: ―Provided, That skilled health
professional such as provincial, city or municipal health officers, chiefs of hospital, head nurses,
supervising midwives, among others, who by virtue of their office are specifically charged with
the duty to implement the provisions of the RPRH Act and these Rules, cannot be considered as
conscientious objectors.‖ This is discriminatory and violative of the equal protection clause. The
conscientious objection clause should be equally protective of the religious belief of public
health officers. There is no perceptible distinction why they should not be considered exempt
from the mandates of the law. The protection accorded to other conscientious objectors should
equally apply to all medical practitioners without distinction whether they belong to the public
or private sector. After all, the freedom to believe is intrinsic in every individual and the
protective robe that guarantees its free exercise is not taken off even if one acquires employment
in the government. (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014)
From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the
same interest in participating in the party-list system on the same basis as other political parties similarly
situated. State intrusion in this case is equally burdensome. Hence, laws of general application should
apply with equal force to LGBTs, and they deserve to participate in the party-list system on the same
basis as other marginalized and under-represented sectors. (Ang Ladlad LGBT Party v. Commission on
Elections, G.R. No. 190582, April 8, 2010, 618 SCRA 32)
For the purpose of garbage collection, there is, in fact, no substantial distinction between
an occupant of a lot, on one hand, and an occupant of a unit in a condominium, socialized
housing project or apartment, on the other hand. Most likely, garbage output produced by these
types of occupants is uniform and does not vary to a large degree; thus, a similar schedule of fee
is both just and equitable. (Ferrer v. Bautista, G.R. No. 210551, June 30, 2015)
Further, the classification of dependent spouses on the basis of whether their respective
marriages to the SSS member were contracted prior to or after the latter‘s retirement for the
purpose of entitlement to survivors pension does not rest on real and substantial distinctions. It
is arbitrary and discriminatory. It is too sweeping because the proviso as of the date of his
retirement, which effectively disqualifies the dependent spouses whose respective marriages to
the retired SSS member were contracted after the latter‘s retirement as primary beneficiaries,
unfairly lumps all these marriages as sham relationships or were contracted solely for the
purpose of acquiring benefits accruing upon the death of the other spouse. The proviso thus
unduly prejudices the rights of the legal surviving spouse, like the petitioner, and defeats the
avowed policy of the law to provide meaningful protection to members and their beneficiaries
against the hazards of disability, sickness, maternity, old age, death, and other contingencies
resulting in loss of income or financial burden. (Dycaico v. Social Security System, G.R. No.
161357, November 30, 2005, 476 SCRA 538)
Other than the anonymity of their biological parents, no substantial distinction
differentiates foundlings from children with known Filipino parents. They are both entitled to
the full extent of the state's protection from the moment of their birth. Foundlings' misfortune in
failing to identify the parents who abandoned them—an inability arising from no fault of their
own—cannot be the foundation of a rule that reduces them to statelessness or, at best, as
inferior, second-class citizens who are not entitled to as much benefits and protection from the
state as those who know their parents. Sustaining this classification is not only inequitable; it is
43
dehumanizing. It condemns those who, from the very beginning of their lives, were abandoned
to a life of desolation and deprivation. xxx. Even more basic than their being citizens of the
Philippines, foundlings are human persons whose dignity we value and rights we, as a civilized
nation, respect. (David v. Senate Electoral Tribunal, G.R. No. 221538, September 20, 2016)
In sum, Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 xxx
are not only repugnant to the free speech clause, but are also violative of the equal protection
clause, as there is no substantial distinction between owners of PUVs and transport terminals
and owners of private vehicles and other properties. (1-United Transport Koalisyon v. Commission
on Elections, G.R. No. 206020, April 14, 2015)
The prosecution of offenses is generally addressed to the sound discretion of the fiscal. A
claim of "selective prosecution" may only prosper if there is extrinsic evidence of "clear of
intentional discrimination." The prosecution of one person to the exclusion of others who may
be just as guilty does not automatically entail a violation of the equal protection clause.
(Abubakar v. People, G.R. Nos. 202408, 202409, and 202412, June 27, 2018)
At any rate, the initial implementation of Department Order No. 118-12 is not violative of
the equal protection clause. In Taxicab Operators of Metro Manila, Inc. v. The Board of
Transportation, this Court upheld the initial implementation of the phase-out of old taxicab units
in Metro Manila because of the "heavier traffic pressure and more constant use" of the roads.
The difference in the traffic conditions in Metro Manila and in other parts of the country
presented & substantial distinction. The same substantial distinction can be inferred here.
Department Order No. 118-12 has also been implemented in other parts of the country.
Petitioners' weak argument is now not only moot. It also deserves no merit. (The Provincial Bus
Operators Association of the Philippines v. Department of Labor and Employment, G.R. No. 202275,
July 17, 2018)
We likewise cannot sustain the RTC's finding that the assailed provisions violate the
equal protection guarantee when it singled out "owners and operators of oil or petroleum
tankers and barges." xxx. In the instant case, We agree with petitioners that separating "tankers
and barges hauling oil and for petroleum products in Philippine waterways and coast wise
shipping routes" from other sea-borne vessels does not violate the equal protection clause. For
one, bear in mind that the purpose of the subject legislation is the implementation of the 1992
Civil Liability Convention and the 1992 Fund Convention. Both Conventions only expressly
cover "sea-going vessel and seaborne craft of any type whatsoever constructed or adapted for
the carriage of oil in bulk as cargo xxx." This alone already forecloses any argument against the
validity of the alleged classification since the implementation by RA 9483 of the subject
Conventions necessarily carries with it the adoption of the coverage and limitations employed
in said texts. Furthermore, We cannot subscribe to respondents' proposition that since all
vessels plying Philippine waters are susceptible to accidents which may cause oil spills, all
should be made to contribute to the OPMF. While all vessels, channels, and storage facilities
that carry or store oil are capable of causing oil pollution, this does not make them "similarly
situated" within the context of the equal protection clause. Aside from the difference in the
purposes behind their existence and navigation, it is internationally well-recognized that oil
tankers pose a greater risk to the environment and to people. As a matter of fact, these types of
vessels have long been considered as a separate class and are being given a different treatment
44
by various organizations. (Department of Transportation v. Philippine Petroleum Sea Transport
Association, G.R. No. 230107, July 24, 2018)
Accordingly, it is an indisputable fact that there is a substantial distinction between seabased OFWs and land-based OFWs as enunciated in the cited case of Conference of Maritime
Manning Agencies, Inc. Thus, these two (2) classifications of OFWs can be treated differently.
xxx.
Consequently, the different treatment of seafarers and manning agencies is justified and
germane to the purpose of the law. A declared policy of R.A. No. 11199 is to extend social
security protection to Filipino workers, local or overseas, and their beneficiaries. The law
applied the existing law and regulations regarding the joint and solidary liability of manning
agencies with principal foreign ship owners to attain the statutory purpose of the mandatory
coverage of seafarers under the SSS. As a result, the joint and solidary liability of the manning
agency with principal foreign ship owners was reasonably extended to the obligations
regarding SSS contributions. This satisfies the second requisite that the classification be germane
to the purpose of the law.
In the same manner, the assailed provision does not only apply to existing conditions.
Seafarers are completely covered by the SSS, and all the manning agencies, without any prior
conditions, shall have a solidary liability with the principal foreign ship owners for the SSS
contributions. Likewise, the mandatory coverage of SSS applies to all kinds of seafarers,
regardless of position or designation on their respective vessels. Hence, the third and fourth
requisites – that the classification must not be limited to existing conditions only and that it
must apply equally to all members of the same class – are complied with. As there is a valid and
legal classification between sea-based OFWs and land-based OFWs, there is no violation of the
equal protection clause. (Joint Ship Manning Group, Inc. v. Social Security System, G.R. No. 247471,
July 7, 2020)
Freedom of Expression
There are several theories and schools of thought that strengthen the need to protect the
basic right to freedom of expression. The first pertains to what is referred to as ―deliberative
democracy‖ which would include the right of the people to participate in public affairs, including
the right to criticize government actions. The second considers free speech as being ―under the
concept of a market place of ideas,‖ and should therefore be ―encouraged.‖ A third theory
provides that free speech likewise ―involves self-expression that enhances human dignity. This
right is ‗a means of assuring individual self-fulfillment,‘ among others.‖ A fourth theory
considers free expression as ―a marker for group identity.‖ ―Fifth, the Bill of Rights, free speech
included, is supposed to ‗protect individuals and minorities against majoritarian abuses perpetrated
through [the] framework [of democratic governance].‘‖ ―Lastly, free speech must be protected
under the safety valve theory. This provides that ―nonviolent manifestations of dissent reduce the
likelihood of violence[.]‖ In this regard, the Court explained that a ―dam about to burst . . .
resulting in the ‗banking up of a menacing flood of sullen anger behind the walls of restriction‘
has been used to describe the effect of repressing nonviolent outlets. In order to avoid this
situation and prevent people from resorting to violence, there is a need for peaceful methods in
45
making passionate dissent. This includes ‗free expression and political participation‘ in that
they can ‗vote for candidates who share their views, petition their legislatures to [make or]
change laws,... distribute literature alerting other citizens of their concerns[,]‘ and conduct
peaceful rallies and other similar acts. Free speech must, thus, be protected as a peaceful means
of achieving one‘s goal, considering the possibility that repression of nonviolent dissent may
spill over to violent means just to drive a point.‖ (Diocese of Bacolod v. Commission on Elections, G.
R. No. 205728, January 21, 2015)
There are ―two paradigms of free speech that separate at the point of giving priority to
equality vis-à-vis liberty.‖ Thus In an equality-based approach, ―politically disadvantaged speech prevails over regulation[,]
but regulation promoting political equality prevails over speech.‖ This view allows the
government leeway to redistribute or equalize ‗speaking power,‘ such as protecting, even
implicitly subsidizing, unpopular or dissenting voices often systematically subdued within
society‘s ideological ladder. This view acknowledges that there are dominant political actors who,
through authority, power, resources, identity, or status, have capabilities that may drown out the
messages of others. This is especially true in a developing or emerging economy that is part of the
majoritarian world like ours. xxx.
However, there is also the other view. This is that considerations of equality of opportunity
or equality in the ability of citizens as speakers should not have a bearing in free speech doctrine.
Under this view, ―members of the public are trusted to make their own individual
evaluations of speech, and government is forbidden to intervene for paternalistic or redistributive
reasons . . . [thus,] ideas are best left to a freely competitive ideological market.‖ This is consistent
with the libertarian suspicion on the use of viewpoint as well as content to evaluate the
constitutional validity or invalidity of speech. (Diocese of Bacolod v. Commission on Elections, G. R.
No. 205728, January 21, 2015)
―It is also particularly unreasonable and whimsical to adopt the aggregate-based time
limits on broadcast time when we consider that the Philippines is not only composed of so
many islands. There are also a lot of languages and dialects spoken among the citizens across
the country. Accordingly, for a national candidate to really reach out to as many of the
electorates as possible, then it might also be necessary that he conveys his message through his
advertisements in languages and dialects that the people may more readily understand and
relate to. To add all of these airtimes in different dialects would greatly hamper the ability of
such candidate to express himself - a form of suppression of his political speech. Political speech
is one of the most important expressions protected by the Fundamental Law. ‗[F]reedom of
speech, of expression, and of the press are at the core of civil liberties and have to be protected
at all costs for the sake of democracy.‘ Accordingly, the same must remain unfettered unless
otherwise justified by a compelling state interest.‖ (GMA Network, Inc. v. Commission on
Elections, G.R. No. 205357, September 2, 2014)
While it does regulate expression (i.e., petitioners‘ publication of election surveys), it does
not go so far as to suppress desired expression. There is neither prohibition nor censorship
specifically aimed at election surveys. The freedom to publish election surveys remains. All
Resolution No. 9674 does is articulate a regulation as regards the manner of publication, that is,
46
that the disclosure of those who commissioned and/or paid for, including those subscribed to,
published election surveys must be made. (Social Weather Station v. Commission on Elections, G.R.
No. 208062, April 7, 2015)
The posting of election campaign material on vehicles used for public transport or on
transport terminals is not only a form of political expression, but also an act of ownership – it
has nothing to do with the franchise or permit to operate the PUV or transport terminal. (1United Transport Koalisyon v. Commission on Elections, G.R. No. 206020, April 14, 2015)
A sticker may be furnished by a candidate but once the car owner agrees to have it placed
on his private vehicle, the expression becomes a statement by the owner, primarily his own and
not of anybody else. If, in the National Press Club case (National Press Club v. Commission on
Elections, G.R. No. 102653, March 5, 1992), the Court was careful to rule out restrictions on
reporting by newspapers or radio and television stations and commentators or columnists as
long as these are not correctly paid-for advertisements or purchased opinions, with less reason
can we sanction the prohibition against a sincere manifestation of support and a proclamation
of belief by an individual person who pastes a sticker or decal on his private property. (Adiong
v. Commission on Elections, G.R. No. 103956, March 31, 1992)
What respondent Commission did, in effect, was to impose censorship on petitioner, an
evil against which this constitutional right is directed. Nor could respondent Commission
justify its action by the assertion that petitioner, if he would not resort to taped jingle, would be
free, either by himself or through others, to use his mobile loudspeakers. Precisely, the
constitutional guarantee is not to be emasculated by confining it to a speaker having his say, but
not perpetuating what is uttered by him through tape or other mechanical contrivances. If this
Court were to sustain respondent Commission, then the effect would hardly be distinguishable
from a previous restraint. That cannot be validly done. It would negate indirectly what the
Constitution in express terms assures. (Mutuc v. Commission on Elections, G.R. No. L-32717,
November 26, 1970)
Free expression can also come in the forms of commercial speech, which ―does no more
than propose a commercial transaction.‖ (Diocese of Bacolod v. Commission on Elections, G. R. No.
205728, January 21, 2015)
―To prohibit the transmission of unsolicited ads would deny a person the right to read his
emails, even unsolicited commercial ads addressed to him. Commercial speech is a separate
category of speech which is not accorded the same level of protection as that given to other
constitutionally guaranteed forms of expression but is nonetheless entitled to protection. The
State cannot rob him of this right without violating the constitutionally guaranteed freedom of
expression. Unsolicited advertisements are legitimate forms of expression.‖ (Disini v. Executive
Secretary, G.R. No. 203335, February 18, 2014)
Low-value expressions refer to ―libelous statements, obscenity or pornography, false or
misleading advertisement, insulting or ‗fighting words,‘ i.e., those which by their very utterance
inflict injury or tend to incite an immediate breach of peace and expression endangering
national security.‖ They constitute ―unprotected speech.‖ (Soriano v. Laguardia, G.R. No. 164785,
April 29, 2009, 587 SCRA 79)
47
Neither can the Court accept the argument that the subject remarks were written in the
exercise of his freedom of speech and expression. Time and again, it has been held that the
freedom of speech and of expression, like all constitutional freedoms, is not absolute. While the
freedom of expression and the right of speech and of the press are among the most zealously
protected rights in the Constitution, every person exercising them, as the Civil Code stresses, is
obliged to act with justice, give everyone his due, and observe honesty and good faith. As such,
the constitutional right of freedom of expression may not be availed of to broadcast lies or halftruths, insult others, destroy their name or reputation or bring them into disrepute. (Belo v.
Guevarra, A.C. No. 11394, December 1, 2016)
―Obscenity is not within the area of constitutionally protected speech or press." (Roth v.
U.S., 354 US 476 [1957])
―The standards which must be used to identify obscene material that a State may regulate
without infringing on the First Amendment as applicable to the States through the Fourteenth
Amendment - xxx three elements must coalesce: it must be established that (a) the dominant
theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is
patently offensive because it affronts contemporary community standards relating to the
description or representation of sexual matters; and (c) the material is utterly without
redeeming social value." (Miller v. California, 413 U.S. 15 [1973], 37 L. ed. 419; see Fernando v.
Court of Appeals, G.R. No. 159751, December 6, 2006, 510 SCRA 351)
[Note: There is no question that a live exhibition of sexual intercourse is plain pornography. (People
v. Padan, 101 Phil. 749)]
[Note: The Supreme Court acquitted in the old case of U.S. v. Kottinger (45 Phil. 352) the defendant
who was accused of having offered for sale pictures of half-clad members of the non-Christian tribes,
holding that he had merely presented them in their native attire.]
[Note: In People v. Go Pin (97 Phil. 418), the accused was convicted for exhibiting nude paintings
and pictures notwithstanding his claim that he had done so in the interest of art. The Supreme Court,
noting that he had charged a fee for admission to his exhibition, held that his purpose was merely
commercial and not artistic.]
[Note: Censorship of moving pictures was challenged in Gonzales v. Katigbak (137 SCRA 717) but
the decision was indecisive, to say the least. The petitioner had questioned the classification of a movie as
―for adults only‖ by the Board of Censors. The ponencia of Chief Justice Fernando, which was mostly a
lecture on freedom of expression, dismissed the petition ―solely on the ground that there are not enough
votes for a ruling that there was a grave abuse of discretion‖ committed by the respondent body in
making such classification.]
[Note: In Times Film Corp. v. City of Chicago (365 U.S. 43), the U.S. Supreme Court again affirmed the
right of the State to censor movies, holding that the protection against previous restraint was not
unlimited.]
Obscene magazines cannot be summarily confiscated; a warrant must be issued. (Pita v.
CA, 178 SCRA 362)
48
[Note: The determination of the meaning of obscenity should be done on a case-by-case basis. (Pita
v. CA, 178 SCRA 362)]
[Note: The case of Nogales v. People (G.R. No. 191080, November 21, 2011) shows the extent to which
the State can regulate materials that serve no other purpose than satisfy the market for violence, lust, or
pornography. The Court weighed the property rights of individuals against the public welfare. Private
property, if containing pornographic materials, may be forfeited and destroyed. Likewise, engaging in
sexual acts privately through internet connection, perceived by some as a right, has to be balanced with
the mandate of the State to eradicate white slavery and the exploitation of women. In any event,
consenting adults are protected by the wealth of jurisprudence delineating the bounds of obscenity. The
Court will not declare Section 4(c)(1) unconstitutional where it stands a construction that makes it apply
only to persons engaged in the business of maintaining, controlling, or operating, directly or indirectly,
the lascivious exhibition of sexual organs or sexual activity with the aid of a computer system as
Congress has intended. (Disini v. Secretary of Justice, G.R. No. 203335, February 18, 2014)]
Also considered as unprotected speech would be libelous statements which, when found
to be ―false, malicious or unrelated to a public officer‘s performance of his duties or irrelevant to
matters of public interest involving public figures,‖ may give rise to criminal and civil
liability. (Fermin v. People, G.R. No. 157643, March 28, 2008)
[Note: Under our law, criminal libel is defined as a public and malicious imputation of a crime or
of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to
cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of
one who is dead. For an imputation to be libelous under Art. 353 of the Revised Penal Code, the
following requisites must be present: (a) it must be defamatory; (b) it must be malicious; (c) it must be
given publicity; and (d) the victim must be identifiable. (Manila Bulletin Publishing Corporation v. Domingo,
G.R. No. 170341, July 5, 2017)]
The interest of society and the maintenance of good government demand a full
discussion of public affairs. Complete liberty to comment on the conduct of public men is
a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of
officialdom. Men in public life may suffer under a hostile and an unjust accusation; the
wound can be assuaged with the balm of a clear conscience. A public officer must not be
too thin-skinned with reference to comment upon his official acts. Only thus can the
intelligence and dignity of the individual be exalted. Of course, criticism does not
authorize defamation. Nevertheless, as the individual is less than the State, so must
expected criticism be born[e] for the common good. Rising superior to any official or set
of officials, to the Chief Executive, to the Legislature, to the Judiciary—to any or all the
agencies of Government—public opinion should be the constant source of liberty and
democracy. (U.S. v. Bustos, G.R. No. L-12592, March 8, 1918)
A private individual may be the subject of public comment even if he is not a public
official or at least a public figure, as long as he is involved in a public issue. – the public‘s
primary interest is in the event. (Rosenbloom v. Metromedia, 403 US 29)
[Note: The public issue in Rosenbloom v. Metromedia was the drive against the distribution of
pornographic materials in violation of the obscenity laws, under which the petitioner had been arrested.]
[Note: In Lagunzad v. Sotto Vda. De Gonzales (92 SCRA 476), however, the Supreme Court decreed a
qualification. The petitioner had filmed a romanticized biography of a local official who had been
49
murdered and become a sort of folk hero. The mother objected to the fictionalized embellishments in the
movie and sought to restrain its exhibition. She was sustained.]
[Note: In Ayer Productions Pty. Ltd. V. Judge Capulong (160 SCRA 861), the Supreme Court rejected
the claim of Juan Ponce Enrile who sought to enjoin the production of a movie entitled ―Four Days of
Revolution,‖ claiming that his inclusion in this film on the ―people power‖ revolution of February 1986
would violate his right to privacy. The Court recalled that Enrile was one of the leaders of that historic
event.]
Since petitioner has become a public figure for being involved in a public issue, and
because the event itself that led to the filing of the disciplinary case against petitioner is a matter
of public interest, the media has the right to report the disciplinary case as legitimate news. The
legitimate media has a right to publish such fact under the constitutional guarantee of freedom
of the press. Respondents merely reported on the alleged penalty of suspension from the
practice of law for a year against petitioner, and the supposed grounds relied upon. It appeared
that the respondents, as entertainment writers, merely acted on information they received from
their source about the petitioner who used to appear before the media in representing his
actress client. Also, there was no evidence that the respondents published the articles to
influence this Court on its action on the disciplinary case or deliberately destroy petitioner‘s
reputation. Thus, they did not violate the confidentiality rule in disciplinary proceedings
against lawyers. (Palad v. Solis, G.R. No. 206691, October 3, 2016)
Freedom from Prior Restraint
A measure which provided that no book shall be allowed for distribution unless it shall
first have been declared by the authorities as proper for minors in the interest of their morals
was declared unlawful because it unduly restricted the reading tastes of adults. (Butler v.
Michigan, 352 U.S. 380)
A statute that provides for the suppression of any periodical found, after hearing, on the
basis of its past issues, to be obscene, malicious, scandalous or defamatory is invalid. (Near v.
Minnesota, 283 U.S. 697)
[Note: In Kingsley Books v. Brown (354 U.S. 436), however, the U.S. Supreme Court upheld a law
which authorized the suppression of any issue of any periodical if and as such issue was found to be
objectionable after judicial hearing, but without affecting the right of the periodical to continue
publication. The statute was aimed against issues already published, not against future issues.]
Censorship need not partake of total suppression; even restriction of circulation is
unconstitutional. (Constitutional Law, Cruz and Cruz, 2015 Edition, page 491)
[Note: A statute imposing a tax upon all periodicals publishing more than 20,000 copies per issue
was declared invalid because it tended to limit the circulation of any such periodical seeking to avoid the
payment of the tax. (Grosjean v. American Press Co., 297 U.S. 233)]
[Note: The tax was characterized as a tax on knowledge. It was an indirect attempt to restrict the
wide dissemination of ideas, tracing its roots to the unpopular schemes of the English monarch to
discourage criticisms against the throne. ―A free press stands as one of the great interpreters between the
50
government and the people,‖ Justice Sutherland declared. ―To allow it to be fettered is to fetter
ourselves.‖ (Grosjean v. American Press Co., 297 U.S. 233)]
"‘Any system of prior restraints of expression comes to this Court bearing a heavy
presumption against its constitutional validity.‘ Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 70
(1963); see also Near v. Minnesota, 283 U.S. 697 [1931]. The Government ‗thus carries a heavy
burden of showing justification for the imposition of such a restraint.‘ Organization fort a Better
Austin v. Keefe, 402 U.S. 415, 419 [1971]. The District Court for the Southern District of New
York in the New York Times case and the District Court for the District of Columbia and the
Court of Appeals for the District of Columbia Circuit in the Washington Post case held that the
Government had not met that burden. We agree.‖ (New York Times v. United States, 403 U.S. 713)
The rejection by the mayor of Manila of an application for a permit to hold a public
meeting at Plaza Miranda, which was viewed as having been done to indirectly to muzzle the
opposition party, was reversed by the Supreme Court, holding that the respondent mayor could
only reasonably regulate, not absolutely prohibit, the use of public places for the purpose
indicated. (Primicias v. Fugoso, 80 Phil. 71)
Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 unduly
infringe on the fundamental right of the people to freedom of speech. Central to the prohibition
is the freedom of individuals, i.e., the owners of PUVs and private transport terminals, to
express their preference, through the posting of election campaign material in their property,
and convince others to agree with them. (1-United Transport Koalisyon v. Commission on Elections,
G.R. No. 206020, April 14, 2015)
Pursuant to the assailed provisions of Resolution No. 9615, posting an election campaign
material during an election period in PUVs and transport terminals carries with it the penalty of
revocation of the public utility franchise and shall make the owner thereof liable for an election
offense. The prohibition constitutes a clear prior restraint on the right to free expression of the
owners of PUVs and transport terminals. As a result of the prohibition, owners of PUVs and
transport terminals are forcefully and effectively inhibited from expressing their preferences
under the pain of indictment for an election offense and the revocation of their franchise or
permit to operate. (1-United Transport Koalisyon v. Commission on Elections, G.R. No. 206020,
April 14, 2015)
[Note: The expression of ideas or opinion of an owner of a PUV, through the posting of election
campaign materials on the vehicle, does not affect considerations pertinent to the operation of the PUV.
Surely, posting a decal expressing support for a certain candidate in an election will not in any manner
affect the operation of the PUV as such. Regulating the expression of ideas or opinion in a PUV, through
the posting of an election campaign material thereon, is not a regulation of the franchise or permit to
operate, but a regulation on the very ownership of the vehicle. (1-United Transport Koalisyon v. Commission
on Elections, G.R. No. 206020, April 14, 2015)]
[Note: The captive-audience doctrine states that when a listener cannot, as a practical matter, escape
from intrusive speech, the speech can be restricted. The ―captive-audience‖ doctrine recognizes that a
listener has a right not to be exposed to an unwanted message in circumstances in which the
communication cannot be avoided. A regulation based on the captive-audience doctrine is in the guise of
censorship, which undertakes selectively to shield the public from some kinds of speech on the ground
51
that they are more offensive than others. Such selective restrictions have been upheld only when the
speaker intrudes on the privacy of the home or the degree of captivity makes it either impossible or
impractical for the unwilling viewer or auditor to avoid exposure. (1-United Transport Koalisyon v.
Commission on Elections, G.R. No. 206020, April 14, 2015)]
In Peñera v. COMELEC (G.R. No. 181613, November 25, 2009, 605 SCRA 574), the
Supreme Court reversed the disqualification of the petitioner for premature campaigning on the
basis of a law which it declared as unconstitutional, considering that it does not clearly state
that ―partisan political acts done by a candidate before the campaign period are unlawful, but
may be prosecuted only upon the start of the campaign period‖ or that said ―acts done by a
candidate before the campaign period are temporarily lawful, but becomes unlawful upon the
start of the campaign period.‖ It stressed that such a law which ―defines a criminal act and
curtails freedom of expression and speech, would be void for vagueness.‖
[Note: Also considered as prior restraints were the denial of a permit to operate of the petitioner in
New Sounds Broadcasting Network, Inc. v. Dy ( G.R. Nos. 170270 & 179411, April 2, 2009, 583 SCRA 333) on
the basis of a new ordinance converting the location of its radio station into a commercial area, thereby
preventing it from continuing its operations in violation of its freedom of the press, and, in Chavez v.
Gonzales (G.R. No. 168338, February 15, 2008, 545 SCRA 441), the threats of the Justice Secretary to
prosecute for violations of the Anti-Wire Tapping Act and the memorandum of the National
Telecommunications Commission threatening cancellation of licenses against the airing by television and
radio stations of the Hello Garci tapes, implicating then President Arroyo in efforts to rig the just
concluded presidential election, both of which were considered by the Supreme Court as engendering
what it referred to as a ―chilling effect‖ upon said broadcast establishments‘ freedom of speech and of the
press.]
The content of the computer data can also constitute speech. In such a case, Section 19
operates as a restriction on the freedom of expression over cyberspace. Certainly not all forms of
speech are protected. Legislature may, within constitutional bounds, declare certain kinds of
expression as illegal. But for an executive officer to seize content alleged to be unprotected
without any judicial warrant, it is not enough for him to be of the opinion that such content
violates some law, for to do so would make him judge, jury, and executioner all rolled into one.
(Disini v. Executive Secretary, G.R. No. 203335, February 11, 2014)
The very definition of ―prior restraint‖ negates petitioner‘s assertions. Resolution No. 9674
poses no prohibition or censorship specifically aimed at election surveys. Apart from regulating
the manner of publication, petitioners remain free to publish election surveys. COMELEC
correctly points out that ―[t]he disclosure requirement kicks in only upon, not prior to,
publication.‖ (Social Weather Station v. Commission on Elections, G.R. No. 208062, April 7, 2015)
[Note: While it does regulate expression (i.e., petitioners‘ publication of election surveys), it does
not go so far as to suppress desired expression. There is neither prohibition nor censorship specifically
aimed at election surveys. The freedom to publish election surveys remains. All Resolution No. 9674 does
is articulate a regulation as regards the manner of publication, that is, that the disclosure of those who
commissioned and/or paid for, including those subscribed to, published election surveys must be made.
(Social Weather Station v. Commission on Elections, G.R. No. 208062, April 7, 2015)]
B.P. No. 880 is not an absolute ban of public assemblies but a restriction that simply
regulates the time, place and manner of the assemblies. xxx. There is, likewise, no prior
52
restraint, since the content of the speech is not relevant to the regulation. (Bayan v. Ermita, 488
SCRA 226)
Section 9 (a) of COMELEC Resolution No. 9615, with its adoption of the "aggregate-based"
airtime limits unreasonably restricts the guaranteed freedom of speech and of the press. (GMA
Network, Inc. v. Commission on Elections, G.R. No. 205357, September 2, 2014)
All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in
terrorem effect or the fear of possible prosecution that hangs on the heads of citizens who are
minded to step beyond the boundaries of what is proper. But to prevent the State from
legislating criminal laws because they instill such kind of fear is to render the state powerless in
addressing and penalizing socially harmful conduct. Here, the chilling effect that results in
paralysis is an illusion since Section 4(a)(3) clearly describes the evil that it seeks to punish and
creates no tendency to intimidate the free exercise of one‘s constitutional rights. (Disini v.
Secretary of Justice, G.R. No. 203335, February 18, 2014)
[Note: In Gonzales v. Commission on Elections (27 SCRA 835), our Supreme Court sustained a law
which prohibited, except during the prescribed election period, ―the solicitation or undertaking of any
campaign or propaganda, whether directly or indirectly, by an individual, the making of speeches,
announcements or commentaries or holding of interviews for or against the election of any party or
candidate for public office, or the publication or distribution of campaign literature or materials.‖ The
justification given was that the inordinate preoccupation of the people with politics tended toward the
neglect of the other serious needs of the nation and the pollution of its suffrages.]
―We thus reject petitioners postulate that its religious program is per se beyond review
by the respondent Board. Its public broadcast on TV of its religious program brings it out of the
bosom of internal belief. Television is a medium that reaches even the eyes and ears of
children. The Court iterates the rule that the exercise of religious freedom can be regulated by
the State when it will bring about the clear and present danger of some substantive evil which
the State is duty bound to prevent, i.e., serious detriment to the more overriding interest of
public health, public morals, or public welfare. xxx. For sure, we shall continue to subject any
act pinching the space for the free exercise of religion to a heightened scrutiny but we shall not
leave its rational exercise to the irrationality of man. For when religion divides and its exercise
destroys, the State should not stand still.‖ (Iglesia ni Cristo v. Court of Appeals, 259 SCRA 529)
―In x-rating the TV program of the petitioner, the respondents failed to apply the clear
and present danger rule. xxx. Prior restraint on speech, including religious speech, cannot be
justified by hypothetical fears but only by the showing of a substantive and imminent evil
which has taken the life of a reality already on ground. ―(Iglesia ni Cristo v. Court of Appeals, 259
SCRA 529)
Freedom from Subsequent Punishment
―A function of free speech is to provide dispute.‖ Accordingly, the conviction of an
accused under an ordinance punishing ―any improper noise, riot, disturbance, breach of the
peace, or diversion tending to the breach of the peace,‖ for having delivered inside an
auditorium (before less than a thousand persons) a speech attacking various political and racial
groups while an angry crowd of about one thousand gathered outside to protest the meeting,
53
resulting in a number of disturbances occurred, created by the people outside, and not by the
defendant, was annulled by the US Supreme Court. (Terminiello v. City of Chicago, 337 US 1)
[Note: In Feiner v. New York, [340 US 315], the US Supreme Court upheld a statute forbidding
speaking on public streets ―with intent to provoke a breach of peace.‖ It found the accused to be guilty of
a ―genuine attempt to arouse the Negro people against the whites.‖ In this case, the trouble which
erupted was caused by some members of the speaker‘s audience, and not by the speaker.]
[Note - A heckler's veto occurs when an acting party's right to freedom of speech is curtailed or
restricted by the government in order to prevent a reacting party's behavior. The common example is that
of demonstrators (reacting party) causing a speech (given by the acting party) to be terminated in order to
preserve the peace. The best known case involving the heckler's veto is probably Feiner v. New York [340
U.S. 315], handed down by the Supreme Court in 1951. Chief Justice Fred M. Vinson, writing for the
majority, held that police officers acted within their power in arresting a speaker if the arrest was
"motivated solely by a proper concern for the preservation of order and protection of the general
welfare." In Gregory v. Chicago [394 US 111], Justice Hugo Black, in a concurring opinion, argued that
arresting demonstrators as a consequence of unruly behavior of by-standers would amount to a heckler's
veto. It was rejected in Hill v. Colorado (530 US 703), where the U.S. Supreme Court found "governmental
grants of power to private actors" to be "constitutionally problematic" in cases where "the regulations
allowed a single, private actor to unilaterally silence a speaker." (See Constitutional Law, Cruz and Cruz,
2015 Edition, pages 513-515)]
―Peaceable assembly for lawful discussion cannot be made a crime.‖ (US v. Dirk De Jonge
[1937])
Government workers, whatever their ranks, have as much right as any person in the land
to voice out their protests against what they believe to be a violation of their rights and
interests. Civil Service does not deprive them of their freedom of expression. It would be unfair
to hold that by joining the government service, the members thereof have renounced or waived
this basic liberty. This freedom can be reasonably regulated only but can never be taken away.
(GSIS v. Villaviza, G.R. No. 180291, July 27, 2010)
Clear and Present Danger Rule
The most stringent protection of free speech would not protect a man in falsely shouting
fire in a theatre and causing a panic. It does not even protect a man from an injunction against
uttering words that may have all the effect of force. Gompers v. Buck's Stove & Range Co., 221 U.S.
418, 439 , 31 S. Sup. Ct. 492, 55 L. ed. 797, 34 L. R. A. (N. S.) 874. The question in every case is
whether the words used are used in such circumstances and are of such a nature as to create a
clear and present danger that they will bring about the substantive evils that Congress has a right
to prevent. It is a question of proximity and degree. When a nation is at war, many things that
might be said in time of peace are such a hindrance to its effort that their utterance will not be
endured so long as men fight and that no Court could regard them as protected by any
constitutional right. It seems to be admitted that if an actual obstruction of the recruiting service
were proved, liability for words that produced that effect might be enforced. The statute of 1917
in section 4 (Comp. St. 1918 , 10212d) punishes conspiracies to obstruct as well as actual
obstruction. If the act, (speaking, or circulating a paper,) its tendency and the intent with which
54
it is done are the same, we perceive no ground for saying that success alone warrants making
the act a crime. (Schenck vs. U. S., 249 U.S. 47 [1919])
Even with the clear and present danger test, respondents failed to justify the regulation.
There is no compelling and substantial state interest endangered by the posting of the tarpaulin
as to justify curtailment of the right of freedom of expression. There is no reason for the state to
minimize the right of non-candidate petitioners to post the tarpaulin in their private property.
The size of the tarpaulin does not affect anyone else‘s constitutional rights. (Diocese of Bacolod v.
Commission on Elections, G. R. No. 205728, January 21, 2015)
B.P. No. 880 is not an absolute ban of public assemblies but a restriction that simply
regulates the time, place and manner of the assemblies. It regulates the exercise of the right to
peaceful assembly and petition only to the extent needed to avoid a clear and present danger of
the substantive evils Congress has the right to prevent. (Bayan v. Ermita, 488 SCRA 226)
Content-Based Regulation
It is content-based regulation or censorship if the restriction is based on the subject matter
of the utterance or speech. It is content-neutral regulation if it is merely concerned with the
incidents of the speech, or one that merely controls the time, place or manner, and under welldefined standards. (New Sounds Broadcasting Network, Inc. v. Dy, G.R. Nos. 170270 & 179411,
April 2, 2009, 583 SCRA 333)
A content-based restraint is aimed at the contents or idea of the expression (Soriano v.
Laguardia, G.R. No. 164785, April 29, 2009, 587 SCRA 79)
Content-based regulations can either be based on the viewpoint of the speaker or the
subject of the expression. (Chavez v. Gonzales, G.R. No. 168338, February 15, 2008, 545 SCRA 441;
see Diocese of Bacolod v. Commission on Elections, G. R. No. 205728, January 21, 2015)
An ordinance converting the location of a radio station critical of the local government
officials was annulled by the Supreme Court as content-based regulation. (New Sounds
Broadcasting Network, Inc. v. Dy, G.R. Nos. 170270 & 179411, April 2, 2009, 583 SCRA 333)
As previously noted, a similar ruling was held in Chavez v. Gonzales (G.R. No. 168338,
February 15, 2008, 545 SCRA 441), where the Supreme Court considered the warnings of the
Justice Secretary, who publicly threatened to prosecute for violations of the Anti-Wire Tapping
Act, and the Memorandum of the National Telecommunications Commission likewise
threatening broadcast stations with the cancellation of their licenses, as producing a ―chilling
effect‖ upon citizens and mass media establishments against their airing of the ―Hello Garci‖
tapes, which implicated then President Arroyo in certain election anomalies or electoral fraud.
Also considered as content-based restraint was the order made by the respondent upon the
petitioner to take down two tarpaulins it had displayed on the façade of its church at the height
of an election campaign on the ground that they exceeded the size limitations prescribed by it
for election propaganda posters or materials. (Diocese of Bacolod v. Commission on Elections, G. R.
No. 205728, January 21, 2015)
55
Courts subject content-based restraint to strict scrutiny. (Soriano v. Laguardia, G.R. No.
164785, April 29, 2009, 587 SCRA 79)
Content-Neutral Regulation
A content-neutral restraint intends to regulate the time, place, and manner of the
expression under well-defined standards tailored to serve a compelling state interest, without
restraint on the message of the expression. Soriano v. Laguardia, G.R. No. 164785, April 29, 2009,
587 SCRA 79)
It is content-neutral regulation if it is merely concerned with the incidents of the speech,
or one that merely controls the time, place or manner, and under well-defined standards.
(New Sounds Broadcasting Network, Inc. v. Dy, G.R. Nos. 170270 & 179411, April 2, 2009, 583
SCRA 333)
Content-neutral regulations of speech or of conduct that may amount to speech, are subject
to lesser but still heightened scrutiny. (New Sounds Broadcasting Network, Inc. v. Dy, G.R. Nos.
170270 & 179411, April 2, 2009, 583 SCRA 333)
When the prior restraint partakes of a content-neutral regulation, it is subjected to an
intermediate review. (Chavez v. Gonzales, G.R. No. 168338, February 15, 2008, 545 SCRA 441)
A governmental regulation is sufficiently justified if it is within the constitutional power
of the Government, if it furthers an important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free expression; and if the incident
restriction on alleged [freedom of speech & expression] is no greater than is essential to the
furtherance of that interest. (Chavez v. Gonzales, G.R. No. 168338, February 15, 2008, 545 SCRA
441)
Facial Challenges
A facial challenge may be raised against any restraint upon freedom of expression. Such
restraint may be suppressed if found to be overbroad or vague. (White Light Corporation v. City
of Manila, G.R. No. 122846, January 20, 2009, 576 SCRA 416)
[Note: The so-called overbreadth doctrine has been applied when a statute needlessly restrains
even constitutionally guaranteed rights. (White Light Corporation v. City of Manila, G.R. No. 122846,
January 20, 2009, 576 SCRA 416) Under this doctrine, a proper governmental purpose, constitutionally
subject to state regulation, may not be achieved by means that unnecessarily sweep its subject broadly,
thereby invading the area of protected freedoms. (Disini v. Secretary of Justice, G.R. No. 203335,
February 18, 2014)]
[Note: The void-for-vagueness doctrine holds that a law is facially invalid if "men of common
intelligence must necessarily guess at its meaning and differ as to its application." "[A] statute or act may
be said to be vague when it lacks comprehensible standards that men of common intelligence must
necessarily guess at its meaning and differ in its application. [In such instance, the statute] is repugnant to
the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the
56
parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.‖
(Lagman v. Medialdea, G.R. No. 231658, July 4, 2017)]
The vagueness doctrine is an analytical tool developed for testing "on their faces" statutes
in free speech cases or, as they are called in American law, First Amendment cases. A facial
challenge is allowed to be made to a vague statute and also to one which is overbroad because
of possible '"'chilling effect' on protected speech that comes from statutes violating free speech.
A person who does not know whether his speech constitutes a crime under an overbroad or
vague law may simply restrain himself from speaking in order to avoid being charged of a
crime. The overbroad or vague law thus chills him into silence." (Lagman v. Medialdea, G.R. No.
231658, July 4, 2017)
Arrests, Searches and Seizures
The constitutional requirements of a valid search warrant or warrant of arrest are the
following:
(1)
It must be based on probable cause.
(2)
The probable cause must be determined personally by the judge.
(3)
The determination must be made after examination under oath or affirmation of
the complainant and the witnesses he may produce.
(4)
It must particularly describe the place to be searched and the persons or things to
be seized. (Constitutional Law, Cruz and Cruz, 2015 Edition, page 289)
The right against unreasonable searches and seizures is personal and may be invoked
only by the person entitled to it. Therefore, one who is not the owner or lessee of the premises
searched, or who is not an officer of a corporation whose papers are seized, cannot challenge the
validity of the search or seizure. (Stonehill v. Diokno, 20 SCRA 383)
The Bill of Rights does not govern relationships between individuals; it cannot be invoked
against the acts of private individuals. (People v. Marti, G.R. No. 81561, January 18, 1991, 271
Phil. 51 [1991], cited in De la Cruz v. People, G.R. No. 209387, January 11, 2016)
[Note: ―The constitutional guaranty against unreasonable searches and seizure is applicable only
against government authorities (including barangay tanods) and not to private individuals.‖ (See Del
Castillo v. People, G.R. No. 185128, January 30, 2012, 664 SCRA 430)]
[Note: The barangay tanod and the barangay chairman are law enforcement officers for purposes
of applying Article III, Section 12(1) and (3) of the Constitution. (People v. Malngan, 534 Phil. 404 [2006],
cited in Dela Cruz v. People, G.R. No. 209387, January 11, 2016)]
[Note: The acts of the Bantay Bayan or any barangay-based or other volunteer organizations in the
nature of watch groups - relating to the preservation of peace and order in their respective areas have the
color of a state-related function. As such, they should be deemed as law enforcement authorities for the
purpose of applying the Bill of Rights under Article III of the 1987 Constitution to them. xxx. The Bill of
Rights may be applied to the Bantay Bayan operatives who arrested and subsequently searched petitioner.
(Miguel v. People, G.R. No. 227038, July 31, 2017, citing People v. Lauga, G.R. No. 186228, March 15, 2010)]
57
[Note: Thus, with port security personnel's functions having the color of state-related functions and
deemed agents of government, Marti is inapplicable in the present case. (Dela Cruz v. People, G.R. No.
209387, January 11, 2016)]
[Note: The Cebu Port Authority is clothed with authority by the state to oversee the security of
persons and vehicles within its ports. While there is a distinction between port personnel and port police
officers in this case, considering that port personnel are not necessarily law enforcers, both should be
considered agents of government under Article III of the Constitution. The actions of port personnel
during routine security checks at ports have the color of a state-related function. (Dela Cruz v. People, G.R.
No. 209387, January 11, 2016)]
The antecedents of this case involve a unique feature in the sense that the person who had
initial custody of the dangerous drugs was not a police officer or agent, but a guidance
counselor – a person who was not expected to be familiar with the niceties of the procedures
required of law enforcers in the initial handling of the confiscated evidence. Contrary to the
petitioner‘s claim, Bagongon‘s failure to mark the seized sachets should not in any way weaken
the prosecution‘s case, more so since she was able to prove that she was also the person who
handed the seized sachets to the police when the latter arrived. On this point, we stress that
drug peddling in schools is prevalent; the scenario attending this case is likely to be repeated
many times. To impose on teachers and other school personnel the observance of the same
procedure required of law enforcers (like marking)- processes that are unfamiliar to them - is to
set a dangerous precedent that may eventually lead to the acquittal of drug peddlers. (Marquez
v. People, G.R. No. 197207, March 13, 2013, 693 SCRA 468)
Probable Cause
In the Philippines, there are four instances in the Revised Rules of Criminal Procedure
where probable cause is needed to be established:
(1) In Sections 1 and 3 of Rule 112: By the investigating officer, to determine whether there is
sufficient ground to engender a well-founded belief that a crime has been committed and the
respondent is probably guilty thereof, and should be held for trial. A preliminary investigation is
required before the filing of a complaint or information for an offense where the penalty prescribed
by law is at least four years, two months and one day without regard to the fine;
(2) In Sections 6 and 9 of Rule 112: By the judge, to determine whether a warrant of arrest or
a commitment order, if the accused has already been arrested, shall be issued and that there is a
necessity of placing the respondent under immediate custody in order not to frustrate the ends of
justice;
(3) In Section 5(b) of Rule 113: By a peace officer or a private person making a warrantless
arrest when an offense has just been committed, and he has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has committed it; and
(4) In Section 4 of Rule 126: By the judge, to determine whether a search warrant shall be
issued, and only upon probable cause in connection with one specific offense to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the things to
be seized which may be anywhere in the Philippines.
58
In all these instances, the evidence necessary to establish probable cause is based only on
the likelihood, or probability, of guilt. (Estrada v. Office of the Ombudsman, et al., G.R. Nos.
212140–41, January 21, 2015, cited in ABS-CBN Corporation v. Gozon, G.R. No. 195956, March 11,
2015)
Thus, probable cause can be established with hearsay evidence, as long as there is
substantial basis for crediting the hearsay. Hearsay evidence is admissible in determining
probable cause in a preliminary investigation because such investigation is merely preliminary,
and does not finally adjudicate rights and obligations of parties. (Estrada v. Office of the
Ombudsman, et al., G.R. Nos. 212140–41, January 21, 2015; see Philippine Deposit Insurance v.
Casimiro, G.R. No. 206866, September 2, 2015; Presidential Commission on Good Government v.
Gutierrez, G.R. No. 194159, October 21, 2015)
There is a distinction between the preliminary inquiry, which determines probable cause
for the issuance of a warrant of arrest, and the preliminary investigation proper, which ascertains
whether the offender should be held for trial or be released. The determination of probable
cause for purposes of issuing a warrant of arrest is made by the judge. The preliminary
investigation proper – whether or not there is reasonable ground to believe that the accused is
guilty of the offense charged – is the function of the investigating prosecutor. The task of the
presiding judge when the Information is filed with the court is first and foremost to determine
the existence or non-existence of probable cause for the arrest of the accused. (People v. Gabo,
G.R. No. 161083, August 3, 2010, 626 SCRA 352)
The first kind of preliminary investigation is executive in nature. It is part of the
prosecution's job. The second kind of preliminary investigation which is more properly called
preliminary examination is judicial in nature and is lodged with the judge. (Co v. Republic, G.R.
No. 168811, November 28, 2007, 539 SCRA 147, citing People v. Inting, G.R. No. 88919, July 25,
1990, 187 SCRA 788, 794; see also AAA v. Carbonell, G.R. No. 171465, 8 June 2007, 524 SCRA 496)
[Note: Hence, any alleged irregularity in an investigation's conduct does not render the
information void nor impair its validity. (Salonga v. Cruz-Paño, 219 Phil. 402 [1985], cited in De Lima v.
Reyes, G.R. No. 209330, January 11, 2016)]
[Note: The admissibility of evidence cannot be ruled upon in a preliminary investigation. (Masa v.
Turla, G.R. No. 187094, February 15, 2017)]
The judge's determination of probable cause has a different objective than that of the
prosecutor. The judge's finding is based on a determination of the existence of facts and
circumstances that would lead a reasonably discreet and prudent person to believe that an
offense has been committed by the person sought to be arrested. The prosecutor, on the other
hand, determines probable cause by ascertaining the existence of facts sufficient to engender a
well-founded belief that a crime has been committed, and that the respondent is probably guilty
thereof. (Fenix v. Court of Appeals, G.R. No. 189878, July 11, 2016)
The issuance of the warrant of arrest is not a ministerial function of the judge who had the
right to determine for himself the existence of probable cause. While he could rely on the
59
findings of the prosecutor, he is nevertheless not bound thereby. (Placer v. Villanueva, 126 SCRA
463)
A preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists
him in making the determination of probable cause for issuance of the warrant of arrest. The
Judge does not have to follow what the Prosecutor presents to him. By itself, the Prosecutor‘s
certification of probable cause is ineffectual. It is the report, the affidavits, the transcripts of
stenographic notes (if any), and all other supporting documents behind the Prosecutor‘s
certification which are material in assisting the Judge in making his determination. (Baltazar v.
People, G.R. No. 174016, July 28, 2008, 560 SCRA 278)
[Note: To be sure, in the determination of probable cause for the issuance of a warrant of arrest, the
judge is not compelled to follow the prosecutor's certification of the existence of probable cause. As we
stated in People v. Inting, "[i]t is the report, the affidavits, the transcripts of stenographic notes (if any), and
all other supporting documents behind the [prosecutor's certification which are material in assisting the
[j]udge to make his determination." (Fenix v. Court of Appeals, G.R. No. 189878, July 11, 2016)]
Judges have no capacity to review the prosecutor's determination of probable cause. That
falls under the office of the DOJ Secretary. (Fenix v. Court of Appeals, G.R. No. 189878, July 11,
2016)
While it is within the trial court‘s discretion to make an independent assessment of the
evidence on hand, it is only for the purpose of determining whether a warrant of arrest should
be issued. The judge does not act as an appellate court of the prosecutor and has no capacity to
review the prosecutor‘s determination of probable cause; rather, the judge makes a
determination of probable cause independent of the prosecutor‘s finding. (Mendoza v. People,
G.R. No. 197293, April 21, 2014, 722 SCRA 647, cited in De Lima v. Reyes, G.R. No. 209330,
January 11, 2016)
[Note: We made it clear that the judge does not act as an appellate court of the prosecutor and has
no capacity to review the prosecutor's determination of probable cause; rather, he makes a determination
of probable cause independently of the prosecutor's finding. (Inocentes v. People, G.R. Nos. 205963-64, July
7, 2016)]
[Note: Thus, when Judge Turla held that the prosecutors' conduct of preliminary investigation was
"incomplete" and that their determination of probable cause "has not measured up to [the] standard," she
encroached upon the exclusive function of the prosecutors. Instead of determining probable cause, she
ruled on the propriety of the preliminary investigation. (Masa v. Turla, G.R. No. 187094, February 15,
2017)]
Probable cause for a valid search warrant is defined "as such facts and circumstances
which would lead a reasonably discreet and prudent man to believe that an offense has been
committed, and that objects sought in connection with the offense are in the place sought to be
searched." The probable cause must be "determined personally by the judge, after examination
under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized."
Probable cause does not mean actual and positive cause, nor does it import absolute certainty.
The determination of the existence of probable cause is concerned only with the question of
60
whether the affiant has reasonable wounds to believe that the accused committed or is
committing the crime charged. (People v. Gayoso, G.R. No. 206590, March 27, 2017)
[Note: Section 12 (of the Cybercrime Law) empowers law enforcement authorities, "with due
cause," to collect or record by technical or electronic means traffic data in real-time. xxx. But the
cybercrime law, dealing with a novel situation, fails to hint at the meaning it intends for the phrase "due
cause." The Solicitor General suggests that "due cause" should mean "just reason or motive" and
"adherence to a lawful procedure." But the Court cannot draw this meaning since Section 12 does not
even bother to relate the collection of data to the probable commission of a particular crime. It just says,
"with due cause," thus justifying a general gathering of data. It is akin to the use of a general search
warrant that the Constitution prohibits. xxx. The authority that Section 12 gives law enforcement agencies
is too sweeping and lacks restraint. While it says that traffic data collection should not disclose identities
or content data, such restraint is but an illusion. Admittedly, nothing can prevent law enforcement
agencies holding these data in their hands from looking into the identity of their sender or receiver and
what the data contains. This will unnecessarily expose the citizenry to leaked information or, worse, to
extortion from certain bad elements in these agencies. xxx. The Solicitor General points out that Section 12
needs to authorize collection of traffic data "in real time" because it is not possible to get a court warrant
that would authorize the search of what is akin to a "moving vehicle." But warrantless search is associated
with a police officer‘s determination of probable cause that a crime has been committed, that there is no
opportunity for getting a warrant, and that unless the search is immediately carried out, the thing to be
searched stands to be removed. These preconditions are not provided in Section 12. The Solicitor General
is honest enough to admit that Section 12 provides minimal protection to internet users and that the
procedure envisioned by the law could be better served by providing for more robust safeguards. His
bare assurance that law enforcement authorities will not abuse the provisions of Section 12 is of course
not enough. The grant of the power to track cyberspace communications in real time and determine their
sources and destinations must be narrowly drawn to preclude abuses. (Disini v. Executive Secretary, G.R.
No. 203335, February 18, 2014)]
Tips from Informants
―Tipped information‖ has been considered sufficient probable cause to effect warrantless
searches in buy-bust operations or cases involving drugs in transit‖ but ―none of these drug
cases involve police officers entering a house without warrant to effect arrest and seizure based
solely on an informer‘s tip.‖ (People v. Martinez, G.R. No. 191366, December 13, 2010, 637 SCRA
791)
Initial hearsay information or tips from confidential informants could very well serve as
basis for the issuance of a search warrant, if followed up personally by the recipient and
validated. (Local Superior of the Servants of Charity, Inc. v. Jody King Construction and Development
Corp., 509 Phil. 426 [2005]) Looking at the records, it is clear that Padilla and his companions
were able to personally verify the tip of their informant. (Microsoft Corporation v. Samir Farajallah,
G.R. No. 205800, September 10, 2014)
Warrantless arrests made on the basis alone of ―tips‖ or ―reliable information‖ have
consistently been considered as not sufficient for them to be considered as lawful. ―The rule
requires, in addition, that the accused perform some overt act that would indicate that he has
committed, is actually committing, or is attempting to commit an offense. (People v. Racho, G.R.
No. 186529, August 3, 2010, 626 SCRA 633; People v. Aruta, 351 Phil. 868, 880 [1998], 288 SCRA
61
628; People v. Tudtud, 458 Phil. 752 [2003], 412 SCRA 142; and People v. Nuevas, G.R. No. 170233,
February 22, 2007, 516 SCRA 463)
[Note: ―At the time of his arrest, appellant had just alighted from the Gemini bus and was waiting
for a tricycle. Appellant was not acting in any suspicious manner that would engender a reasonable
ground for the police officers to suspect and conclude that he was committing or intending to commit a
crime. Were it not for the information given by the informant, appellant would not have been
apprehended and no search would have been made, and consequently, the sachet of shabu would not
have been confiscated. Neither were the arresting officers impelled by any urgency that would allow
them to do away with the requisite warrant.‖ (People v. Racho, G.R. No. 186529, August 3, 2010, 626 SCRA
633)]
[Note: A ―police officer was tipped off by his informant that a certain ‗Aling Rosa‘ would be
arriving from Baguio City the following day with a large volume of marijuana. Acting on said tip, the
police assembled a team and deployed themselves near the Philippine National Bank (PNB) in Olongapo
City. While thus positioned, a Victory Liner Bus stopped in front of the PNB building where two females
and a man got off. The informant then pointed to the team members the woman, ‗Aling Rosa,‘ who was
then carrying a traveling bag. Thereafter, the team approached her and introduced themselves. When
asked about the contents of her bag, she handed it to the apprehending officers. Upon inspection, the bag
was found to contain dried marijuana leaves.‖ Said warrantless arrest and search were invalid. (People v.
Aruta (351 Phil. 868, 880 [1998], 288 SCRA 628)
[Note: The warrantless arrests of the accused which were based solely on a ―report from a civilian
asset‖ or mere ―information‖ were also declared as unlawful by the Supreme Court in People v. Tudtud
(458 Phil. 752 [2003], 412 SCRA 142) and People v. Nuevas. (G.R. No. 170233, February 22, 2007, 516 SCRA
463)]
[Note: Simply relying on ―tipped information‖ and ―seeing the suspects pass from one to another a
white plastic bag with a box or carton inside‖ would not, according to the Supreme Court, justify a
warrantless arrest. (People v. de los Reyes, G.R. No. 174774, August 31, 2011, 656 SCRA 417)]
[Note: A mere tip from an unnamed informant does not vest police officers with the authority to
barge into private homes without first securing a valid warrant of arrest or search warrant. While there
are instances where arrests and searches may be made without a warrant, the Court finds that the
constitutionally-protected right against unreasonable searches and seizures was violated in the case at
bar. (Villamor v. People, G.R. No. 200396, March 22, 2017)]
In People v. Bolasa (378 Phil. 1073 [1999] 321 SCRA 459), an anonymous caller tipped off the
police that a man and a woman were repacking prohibited drugs at a certain house. The police
immediately proceeded to the house of the suspects. They walked toward the house
accompanied by their informer. When they reached the house, they peeped inside through a
small window and saw a man and woman repacking marijuana. They then entered the house,
introduced themselves as police officers, confiscated the drug paraphernalia, and arrested the
suspects. The Supreme Court declared both the arrest and search and seizure in this case as
unlawful because the accused were not caught in flagrante delicto or as a result of a hot pursuit,
and the objects seized were not in plain view, as it was shown that the police officers had to peep
to see them. The Court noted that, under the circumstances, the police office ought to have
conducted a proper surveillance and obtained a search warrant.
62
Does the mere reception of a text message from an anonymous person suffice to create probable
cause that enables the authorities to conduct an extensive and intrusive search without a search warrant?
The answer is a resounding no.
The Court has already held with unequivocal clarity that in situations involving
warrantless searches and seizures, "law enforcers cannot act solely on the basis of confidential
or tipped information. A tip is still hearsay no matter how reliable it may be. It is not sufficient
to constitute probable cause in the absence of any other circumstance that will arouse
suspicion." (People of the Philippines v. Jerry Sapla y Guerrero a.k.a. Eric Salibad y Mallari, G.R. No.
244045, June 16, 2020, J. Caguioa)
As early as 1988, our own Court had ruled that an extensive warrantless search and
seizure conducted on the sole basis of a confidential tip is tainted with illegality. (People of the
Philippines v. Jerry Sapla y Guerrero a.k.a. Eric Salibad y Mallari, G.R. No. 244045, June 16, 2020, J.
Caguioa, citing People v. Aminnudin, People v. Cuizon, People v. Encinada, People v. Aruta, People v.
Cogaed, Veridiano v. People)
Simply stated, the information received through text message was not only hearsay
evidence; it is double hearsay. xxx. Surely, probable cause justifying an intrusive warrantless
search and seizure cannot possibly arise from double hearsay evidence and from irregularlyreceived tipped information. A reasonably discreet and prudent man will surely not believe that
an offense has been committed and that the item sought in connection with said offense are in
the place to be searched based solely on the say-so of an unknown duty guard that a random,
unverified text message was sent to an unofficial mobile phone by a complete stranger.
Therefore, with the glaring absence of probable cause that justifies an intrusive warrantless
search, considering that the police officers failed to rely on their personal knowledge and
depended solely on an unverified and anonymous tip, the warrantless search conducted on
accused-appellant Sapla was an invalid and unlawful search of a moving vehicle. (People of the
Philippines v. Jerry Sapla y Guerrero a.k.a. Eric Salibad y Mallari, G.R. No. 244045, June 16, 2020)
[Note: Moreover, as testified by PO3 Mabiasan himself, tipped information received by the
authorities through the duty guard was unwritten and unrecorded, violating the Standard Operating
Procedure that any information received by a police station that shall be duly considered by the
authorities should be properly written in a log book or police blotter xxx. Further, it does not escape the
attention of the Court that, as testified to by PSI Ngoslab on cross-examination, the mobile phone which
received the anonymous person's text message was not even an official government -issued phone. From
the records of the case, it is unclear as to who owned or possessed the said phone used as the supposed
official hotline of the RPSB Office. Furthermore, PSI Ngoslab testified that he was not even sure whether
the said official hotline still existed. (People of the Philippines v. Jerry Sapla y Guerrero a.k.a. Eric Salibad y
Mallari, G.R. No. 244045, June 16, 2020)]
Arrest Warrants
This power is derived by the judge directly from the self-executing provisions of Article
III, Section 2, of the Constitution and therefore may not be limited, much less withdrawn, by the
legislature. The word ―judge‖ is interpreted in the generic sense and includes judges of all
levels. (Collector of Customs v. Villaluz, 71 SCRA 356)
63
Section 5(a) (formerly Section 6[a]) of Rule 112 of the Rules of Court provides SEC. 5. When warrant of arrest may issue. – (a) By the Regional Trial Court. – Within ten (10)
days from the filing of the complaint or information, the judge shall personally evaluate the
resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if
the evidence on record clearly fails to establish probable cause. If he finds probable cause, he
shall issue a warrant of arrest, or a commitment order if the accused had already been arrested,
pursuant to a warrant issued by the judge who conducted preliminary investigation or when the
complaint or information was filed pursuant to Section 7 of this Rule. In case of doubt on the
existence of probable cause, the judge may order the prosecutor to present additional evidence
within five (5) days from notice and the issue must be resolved by the court within thirty (30)
days from the filing of the complaint or information. (See Ong v. Genio, G.R. No. 182336,
December 23, 2009, 609 SCRA 188, 196-197)
What the Constitution underscores is the exclusive and personal responsibility of the
issuing judge to satisfy himself of the existence of probable cause. But the judge is not required
to personally examine the complainant and his witnesses. Following established doctrine and
procedure, he shall (1) personally evaluate the report and the supporting documents submitted
by the prosecutor regarding the existence of probable cause, and on the basis thereof, he may
already make a personal determination of the existence of probable cause; and (2) if he is not
satisfied that probable cause exists, he may disregard the prosecutor's report and require the
submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the
existence of probable cause. (Leviste v. Hon. Alameda, G.R. No. 182677, August 3, 2010, 626 SCRA
575)
Notably, for purposes of determining the propriety of the issuance of a warrant of arrest,
the judge is tasked to merely determine the probability, not the certainty, of the guilt of the
accused. She is given wide latitude of discretion in the determination of probable cause for the
issuance of warrants of arrest. A finding of probable cause to order the accused's arrest does not
require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough
that it is believed that the act or omission complained of constitutes the offense charged. (De
Lima v. Guerrero, G.R. No. 229781, October 10, 2017)
The judicial determination of probable cause may proceed even if the accused does not
file a pertinent motion. (Anlud Metal Recycling Corporation v. Ang, G.R. No. 182157, August 17,
2015)
―The rules do not require cases to be set for hearing to determine probable cause for the
issuance of a warrant of arrest of the accused before any warrant may be issued. Petitioner thus
cannot, as a matter of right, insist on a hearing for judicial determination of probable
cause.‖ (Leviste v. Alameda, G.R. No. 182677, August 3, 2010, 626 SCRA 575)
The principle followed by this Court is that where there is a violation of basic
constitutional rights, courts are ousted from jurisdiction. The violation of a party's right to due
process raises a serious jurisdictional issue, which cannot be glossed over or disregarded at will.
Where the denial of the fundamental right of due process is apparent, a decision rendered in
disregard of that right is void for lack of jurisdiction. As a consequence of the nullity of the
Information, any action taken by the Sandiganbayan pursuant thereto, including its initial
64
determination of probable cause against respondent, is void and ineffective. A ruling on this
point cannot validate, much less cure, the fatal defect in the preliminary investigation
proceedings or in the Information filed by the PCGG. Considering the foregoing, and in
accordance with the ruling of this Court in Cojuangco, the records of this case should be
forwarded to the Ombudsman, who has primary jurisdiction over cases of this nature, for the
conduct of a preliminary investigation and for appropriate action. (People v. Cojuangco, G.R. No.
160864, November 16, 2016)
Once the information is filed with the court and the judge proceeds with his primordial
task of evaluating the evidence on record, he may either: (a) issue a warrant of arrest, if he finds
probable cause; (b) immediately dismiss the case, if the evidence on record clearly fails to
establish probable cause; and (c) order the prosecutor to submit additional evidence, in case he
doubts the existence of probable cause. (People v. Desmond, G.R. No. 179079, June 26, 2013; De
Los Santos-Dio v. Court of Appeals, G.R. Nos. 178947 and 179079, June 26, 2013, 699 SCRA 614;
Anlud Metal Recycling Corporation v. Ang, G.R. No. 182157, August 17, 2015)
Finally, in order to avoid delay in the proceedings, judges are reminded that the pendency
of a motion for reconsideration, motion for reinvestigation, or petition for review is not a cause
for the quashal of a warrant of arrest previously issued because the quashal of a warrant of
arrest may only take place upon the finding that no probable cause exists. (People v. 4th Division,
Sandiganbayan, G.R. Nos. 233061-62, July 28, 2020
[Note: While a judge's determination of probable cause is generally confined to the limited purpose
of issuing arrest warrants, he is nonetheless authorized under Section 5 (a), Rule 112 of the Revised Rules
of Criminal Procedure to immediately dismiss the case if the evidence on record clearly fails to establish
probable cause. (Young v. People, G.R. No. 213910, February 3, 2016)]
[Note: An arrest is the taking of a person into custody in order that he may be bound to answer for
the commission of an offense. (Rules of Court, Rule 113, Section 1) An arrest is made by an actual restraint
of a person to be arrested, or by his submission to the custody of the person making the arrest. No
violence or unnecessary force shall be used in making an arrest. The person arrested shall not be subject
to a greater restraint than is necessary for his detention. (Ibid., Section 2) It shall be the duty of the officer
executing the warrant to arrest the accused and to deliver him to the nearest police station or jail without
unnecessary delay. (Id., Section 3) The head of the office to whom the warrant of arrest was delivered for
execution shall cause the warrant to be executed within ten (10) days from its receipt. Within ten (10) days
after the expiration of the period, the officer to whom it was assigned for execution shall make a report to
the judge who issued the warrant. In case of his failure to execute the warrant, he shall state the reasons
therefor. (Id., Section 4)
An arrest may be made on any day and at any time of the day or night. (Id., Section 6) When
making an arrest by virtue of a warrant, the officer shall inform the person to be arrested of the cause of
the arrest and of the fact that a warrant has been issued for his arrest, except when he flees or forcibly
resists before the officer has opportunity to so inform him, or when the giving of such information will
imperil the arrest. The officer need not have the warrant in his possession at the time of the arrest but
after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as
practicable. (Id., Section 7)
An officer making a lawful arrest may orally summon as many persons as he deems necessary to
assist him in effecting the arrest. Every person so summoned by an officer shall assist him in effecting the
65
arrest when he can render such assistance without detriment to himself. (Id., Section 10) An officer, in
order to make an arrest either by virtue of a warrant, or without a warrant as provided in section 5, may
break into any building or enclosure where the person to be arrested is or is reasonably believed to be, if
he is refused admittance thereto, after announcing his authority and purpose. (Id., Section 11) Whenever
an officer has entered the building or enclosure in accordance with the preceding section, he may break
out therefrom when necessary to liberate himself. (Id., Section 12)
Any member of the Philippine Bar shall, at the request of the person arrested or of another acting
in his behalf, have the right to visit and confer privately with such person in the jail or any other place of
custody at any hour of the day or night. Subject to reasonable regulations, a relative of the person
arrested can also exercise the same right. (Id., Section 14)]
[Note: In the case of US. v. Marshall, the police had an arrest warrant for a person named Beasley
and, based on information from an informant, mistakenly arrested a person named Marshall thinking he
was Beasley. A subsequent search of Marshall's person revealed that he was carrying a loaded gun. After
the denial of his motion to suppress the evidence on the ground that the search was illegal, Marshall
pleaded guilty to a federal gun charge. Marshall later appealed and raised a single issue, whether the gun
seized incident to his arrest should have been suppressed. In its ruling against Marshall, the United States
Court of Appeals, 7th Circuit had occasion to discuss that in a circumstance where the police mistake a
person for someone else they seek to validly arrest, the arrest is constitutional if the arresting officers (1)
have probable cause to arrest the person sought, and (2) reasonably believe that the person arrested is the
person sought. In affirming the conviction of Marshall, the court also held that the arrest warrant gave the
police a sufficient basis to arrest Beasley and, taking into consideration the totality of the circumstances,
the court found that the actions of the police in thinking that Marshall was Beasley were reasonable.
(Office of the Ombudsman v. Brillantes, G.R. No. 213699, September 28, 2016)]
[Note: In Hill v. California, decided by the United States Supreme Court, and which was cited in the
Marshall case, it was held that when the police have probable cause to arrest one party, and the arresting
officers had a reasonable, good-faith belief that the person arrested was in fact the one being sought for a
crime, then the arrest of the second party is a valid arrest. (Office of the Ombudsman v. Brillantes, G.R. No.
213699, September 28, 2016)]
Other Arrest Warrants
Independently of the requirements of Section 2 of Article III of the Constitution, a judge
may issue a warrant of arrest against an accused if he fails to appear before his court for
arraignment despite notice. (Tan v. Casuga-Tabin, A.M. No. MTJ-09-1729 [Formerly OCA I.P.I.
No. 07-1910-MTJ], January 20, 2009, 576 SCRA 382; see also Office of the Court Administrator v.
Hon. Tormis, A. M. No. MTJ-12-1817, March 12, 2013; and Uy v. Javellana, A.M. No. MTJ-07-1666,
September 5, 2012, 680 SCRA 13)
He may also issue an arrest warrant in connection with his court‘s power to cite for
contempt under Section 8, Rule 71 of the Rules of Court, which provides that ―when the
contempt consists in the refusal or omission to do an act which is yet in the power of the
respondent to perform, he may be imprisoned by order of the court concerned until he
performs it.‖ (Roxas v. Tipon, G.R. No. 160641, June 20, 2012, 674 SCRA 52)
The Congress, in its exercise of its power of legislative inquiry, may likewise provide for
the arrest and detention of persons for contempt. (Sabio v. Gordon, G.R. No., October 17, 2006,
535 Phil. 687, 504 SCRA 704)
66
[Note: The period of imprisonment under the inherent power of contempt by the Senate during
inquiries in aid of legislation should only last until the termination of the legislative inquiry under which
the said power is invoked. (Balag v. Senate, G.R. No. 234608, July 3, 2018)]
Warrants of arrest may be issued by administrative authorities, but only for the purpose
of carrying out a final finding of a violation of law, like an order of deportation or an order of
contempt, and not for the sole purpose of investigation or prosecution. (Board of Commissioners
v. De la Rosa, 197 SCRA 853.)
[Note: The constitutional limitation contemplates an order of arrest in the exercise of judicial
power as a step preliminary or incidental to prosecution or proceedings for a given offense or
administrative action, not as a measure indispensable to carry out a valid decision by a competent official,
such as a legal order of deportation, issued by the Commission of Immigration in pursuance of a valid
legislation. (Morano v. Vivo, 20 SCRA 562; see also Gatchalian v. Board of Commissioners, 197 SCRA
854)]
[Note: The requirement of probable cause is, strictly speaking, not applicable in deportation
proceedings, which are not criminal in nature. The order of deportation is purely administrative, its
purpose being not punishment but the return to his country of the alien who has violated the conditions
for his admission to the local state. (Harvey v. Santiago, 162 SCRA 840)]
[Note: A proclamation of a governor, which he issued (in connection with a kidnapping incident in
his province which he considered as a terrorist act) on the basis of a provision of the Local Government
Code which authorized him to carry out emergency measures during man-made and natural disasters
and calamities, under which he claimed to possess the authority to conduct arrests, is invalid. The
Supreme Court said that the governor had, with his issuance of said proclamation, ―arrogated unto
himself powers exceeding even the martial law powers of the President, because as the Constitution itself
declares, ―a state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of the jurisdiction
on military courts and agencies over civilians where civil courts are able to function, nor automatically
suspend the privilege of the writ.‖ (Kulayan vs. Tan, G.R. No. 187298, July 3, 2012, 675 SCRA 482)]
Warrantless Arrests
Sec 5. Arrest without warrant, when lawful – A peace officer or a private person may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to believe based
on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily confined while
his case is pending, or has escaped while being transferred from one confinement to
another.
In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant
shall be forthwith delivered to the nearest police station or jail and shall be proceeded
67
against in accordance with Section 7 of Rule 112. (Rules of Court, Rule 113, Section 5; People
v. Dela Cruz, G.R. No. 205414, April 4, 2016)
[Note: When making an arrest without a warrant, the officer shall inform the person to be arrested
of his authority and the cause of the arrest, unless the latter is either engaged in the commission of an
offense, is pursued immediately after its commission, has escaped, flees or forcibly resists before the
officer has opportunity so to inform him, or when the giving of such information will imperil the arrest.
(Rules of Court, Rule 113, Section 8)
When making an arrest, a private person shall inform the person to be arrested of the intention to
arrest him and cause of the arrest, unless the latter is either engaged in the commission of an offense, is
pursued immediately after its commission, or has escaped, flees, or forcibly resists before the person
making the arrest has opportunity to so inform him, or when the giving of such information will imperil
the arrest. (Ibid., Section 9) An arrest may be made on any day and at any time of the day or night. (Id.,
Section 6)
An officer, in order to make an arrest either by virtue of a warrant, or without a warrant as
provided in section 5, may break into any building or enclosure where the person to be arrested is or is
reasonably believed to be, if he is refused admittance thereto, after announcing his authority and
purpose. (Id., Section 11) Whenever an officer has entered the building or enclosure in accordance with
the preceding section, he may break out therefrom when necessary to liberate himself. (Id., Section 12) If a
person lawfully arrested escapes or is rescued, any person may immediately pursue or retake him
without a warrant at any time and in any place within the Philippines. (Id., Section 13)
Any member of the Philippine Bar shall, at the request of the person arrested or of another acting
in his behalf, have the right to visit and confer privately with such person in the jail or any other place of
custody at any hour of the day or night. Subject to reasonable regulations, a relative of the person
arrested can also exercise the same right. (Id., Section 14)]
The aforementioned provision identifies three (3) instances when warrantless arrests may
be lawfully effected. These are: (a) an arrest of a suspect in flagrante delicto; (b) an arrest of a
suspect where, based on personal knowledge of the arresting officer, there is probable cause
that said suspect was the perpetrator of a crime which had just been committed; and (c) an
arrest of a prisoner who has escaped from custody serving final judgment or temporarily
confined during the pendency of his case or has escaped while being transferred from one
confinement to another. (Miguel v. People, G.R. No. 227038, July 31, 2017)
In warrantless arrests made pursuant to Section 5 (a), Rule 113, two (2) elements must
concur, namely: (a) the person to be arrested must execute an overt act indicating that he has
just committed, is actually committing, or is attempting to commit a crime; and (b) such overt
act is done in the presence or within the view of the arresting officer. On the other hand, Section
5 (b), Rule 113 requires for its application that at the time of the arrest, an offense had in fact just
been committed and the arresting officer had personal knowledge of facts indicating that the
accused had committed it. (Comerciante v. People, G. R. No. 205926, July 22, 2015; Miguel v. People,
G.R. No. 227038, July 31, 2017)
[Note: Here, the Court is unconvinced with Saraum‘s statement that he was not committing a
crime at the time of his arrest. PO3 Larrobis described in detail how they were able to apprehend him,
who was then holding a disposable lighter in his right hand and a tin foil and a rolled tissue paper in his
left hand, while they were in the course of arresting somebody. The case is clearly one of hot pursuit of
68
"Pata," who, in eluding arrest, entered the shanty where Saraum and Esperanza were incidentally caught
in possession of the illegal items. Saraum did not proffer any satisfactory explanation with regard to his
presence at the vicinity of the buy-bust operation and his possession of the seized items that he claims to
have "countless, lawful uses." On the contrary, the prosecution witnesses have adequately explained the
respective uses of the items to prove that they were indeed drug paraphernalia. There is, thus, no
necessity to make a laboratory examination and finding as to the presence or absence of
methamphetamine hydrochloride or any illegal substances on said items since possession itself is the
punishable act. (Saraum v. People, G.R. No. 205472, January 25, 2016)]
We emphasize that the series of events that led the police officers to the place where
appellant was when he was arrested was triggered by a phone call from a concerned citizen that
someone was indiscriminately firing a gun in the said place. Under the circumstances, the police
officers did not have enough time to secure a warrant considering the "time element" involved
in the process. To obtain a warrant would be impossible to contain the crime. In view of the
urgency of the matter, the police officers proceeded to the place. There, PO2 Paras saw
appellant, alone in an alley which used to be a busy place, suspiciously in the act of pulling
something from his pocket. Appellant's act of pulling something from his pocket constituted an
overt manifestation in the mind of PO2 Paras that appellant has just committed or is attempting
to commit a crime. There was, therefore, sufficient probable cause for PO2 Paras to believe that
appellant was, then and there, about to draw a gun from his pocket considering the report he
received about an indiscriminate firing in the said place. (People v. Badilla, G.R. No. 218578,
August 31, 2016)
The police was tipped off at around 1:00 p.m. that appellant was transporting marijuana
to Huyon-huyon. Certainly, they had no time to secure an arrest warrant as appellant was
already in transit and already committing a crime. The arrest was effected after appellant was
caught in flagrante delicto.
He was seen riding his bicycle and carrying with him the
contraband, hence, demonstrating that a crime was then already being committed. Under the
circumstances, the police had probable cause to believe that appellant was committing a crime.
Thus, the warrantless arrest is justified. (People v. Peñaflorida, G.R. No. 175604, April 10, 2008,
551 SCRA 111)
Under Section 80 of the Forestry Code, forestry officers or employee of the Department of
Environment and Natural Resources or any personnel of the Philippine National Police to
arrest, even without a warrant, any person who has committed or is committing in his presence
any of the offenses defined by the Forestry Code and to seize and confiscate the tools and
equipment used in committing the offense or the forest products gathered or taken by the
offender. (Revaldo v. People, G.R. No. 170589, April 16, 2009, 585 SCRA 341)
In this case, appellants were actually committing a crime and were caught by the
apprehending officers in flagrante delicto. As previously stated, the records reveal that on the
date of their arrest, the apprehending officers, while acting upon a report from the Barangay
Captain, spotted appellants transferring cargo from one boat to another. However, one of the
boats hastily sped away when they drew closer to the appellants, naturally arousing the
suspicion of the officers. Soon after, the police officers found them with the illegal drugs plainly
exposed to the view of the officers. When they requested appellants to show proper
documentation as to their identity as well as their purpose for being there, appellants refused to
69
show them anything much less respond to any of their questions. In fact, when the officers were
transporting appellants and the illegal drugs to the shore, the appellant Chi Chan Liu even
repeatedly offered the arresting officers "big, big amount of money." Hence, the circumstances
prior to and surrounding the arrest of appellants clearly show that they were arrested when
they were actually committing a crime within the view of the arresting officers, who had
reasonable ground to believe that a crime was being committed. (People v. Chi Chan Liu, G.R. No.
189272, January 21, 2015)
In this case, records show that upon the police officers' arrival at Pantal District, Dagupan
City, they saw Peralta carrying a pistol, in plain view of everyone. This prompted the police
officers to confront Peralta regarding the pistol, and when the latter was unable to produce a
license for such pistol and/or a permit to carry the same, the former proceeded to arrest him
and seize the pistol from him. Clearly, the police officer conducted a valid in flagrante delicto
warrantless arrest on Peralta, thus, making the consequent search incidental thereto valid as
well. At this point, it is well to emphasize that the offense of illegal possession of firearms is
malum prohibitum punished by special law and, in order that one may be found guilty of a
violation of the decree, it is sufficient that the accused had no authority or license to possess a
firearm, and that he intended to possess the same, even if such possession was made in good
faith and without criminal intent. In People v. PO2 Abriol, the court ruled that the carrying of
firearms and ammunition without the requisite authorization - a clear violation of PD 1866, as
amended - is enough basis for the conduct of a valid in flagrante delicto warrantless arrest. Given
these, Peralta can no longer question the validity of his arrest and the admissibility of the items
seized from him on account of the search incidental to such arrest. (Peralta v. People, G.R. No.
221991, August 30, 2017)
The evidence on record clearly shows that the police officers had personal knowledge of
facts or circumstances upon which they had properly determined probable cause in effecting a
warrantless arrest against Yusop. Here, the PDEA agents immediately acted on a tip received
from a confidential informant that a substantial amount of shabu will be shipped from Las Piñas
to CDO. The details regarding the shipment such as the names of the shipper and consignee,
contents of the subject package, and the courier service were all accurate upon verification. The
PDEA agents then conducted surveillance operations at the LBC branch where the package will
be claimed. The subject package was without a doubt retrieved a day later by Yusop - who
acted like a guilty person and attempted to run when confronted by the authorities. The
foregoing pieces of information qualify as the PDEA agents' personal observation, perception
and evaluation, which are necessarily within their personal knowledge, prompting them to
make the warrantless arrest. The Court is, thus, convinced that the PDEA agents had personal
knowledge of facts or circumstances justifying Yusop's warrantless arrest. (People v. Yusop, G.R.
No. 224587, July 28, 2020)
It is apparent that Amago's act of making an abrupt U-turn, instead of stopping at the
checkpoint sign, made a reasonable belief for the police officers to suspect that accusedappellants might have committed some traffic violations or (were) delivering something illegal.
The police officers stopped them and, in the course, Amago intentionally slumped down the
motorcycle he was riding causing his t-shirt to be lifted, thereby exposing the handle of a
handgun that was tucked in his waistband. At the same time, Piñero saw a folding knife
protruding from the left pocket of Vendiola who had fallen from the motorcycle. Due to the
70
failure of Amago to produce any license to carry the firearm and for the illegal possession of a
bladed weapon by Vendiola, they were arrested. (People v. Amago and Vendiola, G.R. No. 227739,
January 15, 2020
In Umil v. Ramos (187 SCRA 311), the military arrested, without warrants, among others, a
suspected rebel, bedridden because of a bullet wound, for subversion, which was considered by
the military as a continuing offense, a sleeping man, who was hog-tied and bodily dumped into
a police jeep, for allegedly subversive remarks made by him the day before, and a suspected
murderer for a murder supposedly committed by him fourteen days earlier. These were
considered as in flagrante delicto arrests for offenses committed in connection with subversion
and rebellion, which were considered as continuing offenses.
An arrest made after an entrapment operation does not require a warrant inasmuch as it is
considered a valid "warrantless arrest," in line with the provisions of Rule 113, Section 5(a) of
the Revised Rules of Court. (People v. Rivera, G.R. No. 208837, July 20, 2016, citing People v.
Agulay, G.R. No. 181747 September 26, 2008)
Indeed, a buy-bust operation is a form of entrapment, in which the violator is caught in
flagrante delicto and the police officers conducting the operation are not only authorized, but
duty-bound, to apprehend the violator and to search him for anything that may have been part
of or used in the commission of the crime. (People v. Manlangit, G.R. No. 189806, January 12,
2011, 639 SCRA 455; People v. Juatan, G.R. No. 104378, August 20, 1996, 260 SCRA 532; People v.
Dela Cruz, G.R. No. 205414, April 4, 2016)
Moreover, it has further been held that prior surveillance is not necessary to render a buybust operation legitimate, especially when the buy-bust team is accompanied to the target area
by the informant. People v. de la Rosa, G.R. No. 185166, January 26, 2011, 640 SCRA 635; Quinicot
v. People, G.R. No. 179700, June 22, 2009, 590 SCRA 458, 470; People v. Manlangit, G.R. No.
189806, January 12, 2011, 639 SCRA 455; People v. Lacbanes, 336 Phil. 933, 941 [1997], 270 SCRA
193 and People v. Eugenio, 443 Phil. 411, 422-423 [2003], 395 SCRA 317, cited in People v. Abedin,
G.R. No. 179936, April 11, 2012, 669 SCRA 322; People v. Jandal, G.R. No. 179936, April 11, 2012,
669 SCRA 322; see People v. Quintero, G.R. No. Nos. 80315-16, November 16, 1994, 238 SCRA 173;
People v. Nicart, G.R. No. 182059, July 4, 2012, 675 SCRA 688)
That no test buy was conducted before the arrest is of no moment for there is no rigid or
textbook method of conducting buy-bust operations. (People v. de la Rosa, G.R. No. 185166,
January 26, 2011, 640 SCRA 635; Quinicot v. People, G.R. No. 179700, June 22, 2009, 590 SCRA
458, 470; People v. Manlangit, G.R. No. 189806, January 12, 2011, 639 SCRA 455; People v. Lacbanes,
336 Phil. 933, 941 [1997], 270 SCRA 193 and People v. Eugenio, 443 Phil. 411, 422-423 [2003], 395
SCRA 317, cited in People v. Abedin, G.R. No. 179936, April 11, 2012, 669 SCRA 322; People v.
Jandal, G.R. No. 179936, April 11, 2012, 669 SCRA 322; see People v. Quintero, G.R. No. Nos.
80315-16, November 16, 1994, 238 SCRA 173; People v. Nicart, G.R. No. 182059, July 4, 2012, 675
SCRA 688)
[Note: The law requires the presence of an elected public official, as well as representatives from
the DOJ and the media to ensure that the chain of custody rule is observed and thus, remove any
suspicion of tampering, switching, planting, or contamination of evidence which could considerably
71
affect a case. However, minor deviations may be excused in situations where a justifiable reason for noncompliance is explained. In this case, despite the non-observance of the witness requirement, no plausible
explanation was given by the prosecution. (People v. Crispo, G.R. No. 230065, March 14, 2018)
The presence of the three witnesses must be secured not only during the inventory but more
importantly at the time of the warrantless arrest. It is at this point in which the presence of the three
witnesses is most needed, as it is their presence at the time of seizure and confiscation that would belie
any doubt as to the source, identity, and integrity of the seized drug. If the buy-bust operation is
legitimately conducted, the presence of the insulating witnesses would also controvert the usual defense
of frame-up as the witnesses would be able to testify that the buy-bust operation and inventory of the
seized drugs were done in their presence in accordance with Section 21 of RA 9165. (People v. Tomawis,
G.R. No. 228890, April 18, 2018; see also People v. Sood, G.R. No. 227394, June 6, 2018; People v. Ga-a, G.R.
No. 222559, June 6, 2018; People v. Callejo, G.R. No. 227427, June 6, 2018)]
It would suffice if the overt act were to be seen by a police officer, although from a
distance of, for example, two meters (People v. Sucro, G.R. No. 93239, March 18, 1991, 195 SCRA
388), or fifty meters (People v. Ng Yik Bun, G.R. No. 180452, January 10, 2011, 639 SCRA 88), or
even if he merely hears the disturbance created thereby, provided he proceeds at once to the
scene. (U.S. v. Fortaleza, 12 Phil. 472 [1909]; U.S. v. Samonte, 16 Phil. 516 [1910]) Said offense
would still be ―deemed committed in his presence or within his view.‖ (People v. Alunda, G.R.
No. 181546, September 3, 2008, 564 SCRA 135; citing People v. Doria, G.R. No. 125299, January 22,
1999, 301 SCRA 668 and People v. Sucro, G.R. No. 93239, March 18, 1991, 195 SCRA 388; Rebellion
v. Philippines, G.R. No. 175700, July 5, 2010, 623 SCRA 343)
A judicious review of the factual milieu of the instant case reveals that there could have
been no lawful warrantless arrest made on Comerciante. P03 Calag himself admitted that he
was aboard a motorcycle cruising at a speed of around 30 kilometers per hour when he saw
Comerciante and Dasilla standing around and showing "improper and unpleasant movements,"
with one of them handing plastic sachets to the other… On the basis of such testimony, the
Court finds it highly implausible that P03 Calag, even assuming that he has perfect vision,
would be able to identify with reasonable accuracy - especially from a distance of around 10
meters, and while aboard a motorcycle cruising at a speed of 30 kilometers per hour - miniscule
amounts of white crystalline substance inside two (2) very small plastic sachets held by
Comerciante. (Comerciante v. People, G. R. No. 205926, July 22, 2015)
[Note: Considering that 15 to 20 meters is a significant distance between the police officers and the
petitioners, the Court finds it doubtful that the police officers were able to determine that a c1iminal
activity was ongoing to allow them to validly effect an in flagrante delicto warrantless arrest and a search
incidental to a warrantless arrest thereafter. (Villamor v. People, G.R. No. 200396, March 22, 2017)]
[Note: In this case, the Court finds that there could have been no lawful warrantless arrest made on
the person of Sindac. Based on the records, the arresting officer, PO3 Peñamora, himself admitted that he
was about five (5) to ten (10) meters away from Sindac and Cañon when the latter allegedly handed a
plastic sachet to the former. Suspecting that the sachet contained shabu, he and PO1 Asis rushed to Sindac
to arrest him. (Sindac v. People, G.R. No. 220732, September 6, 2016)]
[Note: The version of P03 Saquibal is incredible. Given the distance of 10 meters, it is unbelievable
that a very small or tiny plastic sachet can be seen being handed from one person to another. To be able to
see the "white crystalline substance" with a weight of 0.02 gram inside such tiny plastic sachet is utterly
72
impossible, unless one has "bionic eyes" or x-ray vision. Also, P03 Saquibal' s testimony wherein he was
able to identify from 10 meters that the P500-bill, which the civilian asset allegedly handed to Otico, was
the same one previously marked at the police station means that he was able to either read the serial
number of the bill or see the marking "MO" thereon. Of course, that is again impossible. (People v. Otico,
G.R. No. 231133, June 6, 2018)]
[Note: As properly discussed by the RTC, it was reasonable for PO1 Falolo not to immediately
arrest petitioner. PO1 Falolo was not on duty and was not in uniform when he smelled the pungent odor
of marijuana from the baggage of petitioner. They were in a crowded bus and any commotion therein
may cause panic to the civilian passengers. Further, it was not shown that PO1 Falolo was carrying
handcuffs, thus, he may not be able to single-handedly restrain petitioner. Moreover, the Court finds that
it was sensible for PO1 Falolo to wait for back-up as petitioner could be carrying a dangerous weapon to
protect his two large bags of suspected marijuana.
When he saw petitioner disembark from the bus in lower Caluttit, POI Falolo did not
immediately follow him; rather, PO1 Falolo disembarked in front of the DPWH. The RTC underscored
that the proximity of the said place was not more than a kilometer away from lower Caluttit. Thus, when
PO1 Falolo failed to find load for his cellular phone, he was able to reach lower Caluttit immediately on
board a tricycle and was able to chance upon petitioner due to the proximity of their positions.
Manifestly, PO1 Falolo's acts showed that he clung to his determination of probable cause to conduct an
extensive search on the baggage of petitioner. When POI Falolo saw his colleague SP02 Suagen in the
COMPAC, he decided that it was safe and reasonable to conduct the search and immediately asked
permission from petitioner to examine his baggage. Nevertheless, when petitioner suddenly ran away
from the tricycle while SP02 Suagen was approaching and left his baggage behind, PO1 Falolo also
obtained probable cause to conduct a warrantless arrest. He was earnest in his probable cause that
petitioner was committing a crime in flagrante delicto; thus, PO1 Falolo religiously pursued him until he
was arrested and his baggage eventually searched as an incident thereof. (Macad v. People, G.R. No.
227366, August 1, 2018)]
Section 5, Rule 113 of the 1985 Rules on Criminal Procedure does not require the arresting
officers to personally witness the commission of the offense with their own eyes. (Abelita III v.
Doria, G.R. No. 170672, August 14, 2009, 596 SCRA 220, 226-227 citing People v. Cubcubin, Jr., 413
Phil. 249, 267 [2001], 360 SCRA 690; Umil v. Ramos, G.R. No. 81567, October 3, 1991, 202 SCRA
251, 261; People v. Lozada, 454 Phil. 241, 250-251 [2003], 406 SCRA 494) ―It is sufficient for the
arresting team that they were monitoring the pay-off for a number of hours long enough for
them to be informed that it was indeed appellant who was the kidnapper. This is equivalent to
personal knowledge based on probable cause.‖ (People v. Uyboco, G.R. No. 178039, January 19,
2011, 640 SCRA 146)
Invalid Warrantless Arrests
―First, there was no valid arrest of petitioner. When he was flagged down for
committing a traffic violation, he was not, ipso facto and solely for this reason, arrested.‖ (Luz
v. People, G. R. No. 197788, February 29, 2012, 667 SCRA 421)
[Note: ―Under R.A. 4136, or the Land Transportation and Traffic Code, the general procedure for
dealing with a traffic violation is not the arrest of the offender, but the confiscation of the driver‘s
license of the latter. (Luz v. People, G. R. No. 197788, February 29, 2012, 667 SCRA 421)]
73
[Note: Arrest is the taking of a person into custody in order that he or she may be bound to
answer for the commission of an offense. It is effected by an actual restraint of the person to be arrested
or by that person‘s voluntary submission to the custody of the one making the arrest. Neither the
application of actual force, manual touching of the body, or physical restraint, nor a formal declaration
of arrest, is required. It is enough that there be an intention on the part of one of the parties to arrest the
other, and that there be an intent on the part of the other to submit, under the belief and impression that
submission is necessary. (Luz v. People, G. R. No. 197788, February 29, 2012, 667 SCRA 421; Homar v.
People, G.R. No. 182534, September 2, 2015)]
Clearly, no arrest preceded the search on the person of the petitioner. When Tan and
Tangcoy allegedly saw the petitioner jaywalking, they did not arrest him but accosted him and
pointed to him the right place for crossing. In fact, according to the RTC, Tan and Tangcoy
―immediately accosted him and told him to cross [at] the designated area.‖ Tan and Tangcoy
did not intend to bring the petitioner under custody or to restrain his liberty. This lack of intent
to arrest him was bolstered by the fact that there was no criminal charge that was filed against
the petitioner for crossing a ―no jaywalking‖ area. From Tan‘s testimony, the intent to arrest the
petitioner only came after they allegedly confiscated the shabu from the petitioner, for which
they informed him of his constitutional rights and brought him to the police station. (Homar v.
People, G.R. No. 182534, September 2, 2015)
It is, in fact, quite perceivable that PO3 Peñamora and PO1 Asis had proceeded to
apprehend Sindac solely on account of information retrieved from previous surveillance
operations conducted on Sindac's alleged drug dealing activities. Advancing to a warrantless
arrest based only on such information, absent circumstances that would lead to the arresting
officer's "personal knowledge" as described in case law, unfortunately, skews from the exacting
requirements of Section 5, Rule 113. It is settled that "reliable information" alone - even if it was
a product of well-executed surveillance operations - is not sufficient to justify a warrantless
arrest. It is further required that the accused performs some overt act that would indicate that
he has committed, is actually committing, or is attempting to commit an offense, which, as
already discussed, is missing in the instant case. (Sindac v. People, G.R. No. 220732, September 6,
2016)
The accused was ―not caught red-handed during the buy-bust operation to give ground
for her arrest under Section 5 (a) of Rule 113. She was not committing any crime. Contrary to
the finding of the trial court, there was no occasion at all for appellant Gaddao to flee from the
policemen to justify her arrest in ‗hot pursuit.‘ In fact, she was going about her daily chores
when the policemen pounced on her. Neither could the arrest of appellant Gaddao be justified
under the second instance of Rule 113.‖ (People v. Doria, G.R. No. 125299, January 22, 1999, 301
SCRA 668)
When police officers and two civilian operatives out on a police visibility patrol chanced
upon two unidentified men rushing out of a house, they approached the house, instead of
running after the two men, and peeked through the partially opened door. It was then that they saw
the accused , one ―holding an improvised tooter and a pink lighter‖ while the other held ―an
aluminum foil and an improvised burner.‖ At that point, the police officers entered the house,
introduced themselves as police officers and arrested the accused after opening a ―wooden
jewelry box atop a table,‖ which ―contained an improvised burner, wok, scissors, 10 small
transparent plastic sachets with traces of white crystalline substance, improvised scoop, and
74
seven unused strips of aluminum foil.‖ The Supreme Court acquitted the accused who were
convicted on the basis of the evidence then seized by the police officers. Clearly, no crime was
plainly exposed to the view of the arresting officers that authorized the arrest of accused
Antiquera without warrant. (Antiquera v. People, G.R. No. 180661, December 11, 2013, 712 SCRA
339)
On the basis of the foregoing testimonies, the Court is inclined to believe that at around
past 12 o'clock in the early morning of May 24, 2010, petitioner went out to the street to urinate
when the Bantay Bayan operatives chanced upon him. The latter then approached and
questioned petitioner, and thereafter, went on to search his person, which purportedly yielded
the marijuana seized from him. Verily, the prosecution's claim that petitioner was showing off
his private parts was belied by the aforesaid testimonies. Clearly, these circumstances do not
justify the conduct of an in flagrante delicto arrest, considering that there was no overt act
constituting a crime committed by petitioner in the presence or within the view of the arresting
officer. Neither do these circumstances necessitate a "hot pursuit" warrantless arrest as the
arresting Bantay Bayan operatives do not have any personal knowledge of facts that petitioner
had just committed an offense. (Miguel v. People, G.R. No. 227038, July 31, 2017)
Accused-appellant was merely a guest of Boy Bicol. Since accused-appellant was not in
possession of the illegal drugs in Boy Bicol‘s nipa hut, his subsequent arrest was also invalid.
xxx. His arrest, independent of the buy-bust operation targeting Boy Bicol, was therefore not
lawful as he was not proved to be committing any offense. (People v. de la Cruz, G.R. No. 182348,
November 20, 2008, 571 SCRA 469)
In this case, the CA found that the discovery of the stolen motorcycle's OR and CR in the
possession of Marvin was the product of a valid search incidental to a lawful arrest. For the search to
become valid under this exception, the inquiry of the Court should focus on the legality of the arrest. The
arrest must not be used as a mere pretext for conducting the search, and the arrest, to be lawful, must
precede the search. Assuming that there was a valid arrest, the arresting officer may only search the
arrestee and the area within which he or she may reach for a weapon, or for evidence to destroy. The
arresting officer may also seize any money or property used in the commission of the crime, or the fruit of
the crime, or that which may be used as evidence, or which might furnish the arrestee the means of
escaping or committing violence. xxx. Upon a careful review of the records of this case, the Court holds
that Marvin was not validly arrested without a warrant. The prosecution failed to establish any overt act
which could lead to Marvin's in flagrante delicto arrest. There was also no evidence that the arresting
officers, or SPO4 Pequiras in particular, knew of an offense that was just committed and that Marvin was
the perpetrator of the offense. (Porteria v. People, G.R. No. 233777, March 20, 2019, J. A. Reyes)
A warrantless arrest made in connection with what was styled as a buy-bust operation
on the basis of information received by the police officers that he had sold shabu a week prior to
the arrest is void. (People v. de la Cruz, G.R. No. 185717, June 8, 2011, 651 SCRA 597)
The prosecution stated that Marvin was arrested and searched because the police received a
report regarding a suspicious person with something tucked in his waist. But in his testimony, SPO4
Pequiras did not specify the actions or behavior of Marvin, or the factual circumstances occurring
prior to his arrest and search. He simply stated that Marvin was arrested due to the anonymous tip.
SPO4 Pequiras did not even state how they were able to identify Marvin as the suspicious person
referred to in the concerned citizen's report. Evidently, these are not enough to create a reasonable
inference of criminal activity. From the foregoing, the Court finds that Marvin was illegally searched.
75
Following the exclusionary principle, the items seized as a result of this unlawful search are inadmissible
as evidence. Again, the OR and CR of the subject motorcycle, allegedly discovered as a result of the
invalid search of Marvin, cannot be used as evidence against him. (Porteria v. People, G.R. No. 233777,
March 20, 2019)
Aside from the fact that there was no record of the surveillance, PO2 Cadawan palpably
failed to identify the activities to which the "series of information" allegedly provided by a
confidential informant pertained. His testimony lacks the bare essentials to justify the conduct
of a buy-bust operation. In fact, if the prosecutor did not use the term "drug dealings" in one of
his questions, there would have been no indication whatsoever of the crime that accusedappellants were supposed to be committing. As part of the surveillance team, PO2 Cadawan
could not have neglected to describe the illegal activities that he witnessed—if indeed he
witnessed any. It is considerably uncharacteristic of a police officer who had monitored a crime
to omit basic information on what he had perceived, particularly when testifying in court where
such information is most crucial. (People v. Casilang, G.R. No. 242159, February 5, 2020
Hot Pursuit
A warrantless arrest may also be considered as lawful though if made in connection with
what is known as a ―hot pursuit‖ in accordance with Section 5 of Rule 113 of the Rules of Court.
According to the Supreme Court, this type of warrantless arrest ―necessitates two stringent
requirements before a warrantless arrest can be effected: (1) an offense has just been committed;
and (2) the person making the arrest has personal knowledge of facts indicating that the person
to be arrested has committed it.‖ (People v. Agojo, G.R. No. 181318, 16 April 2009, 585 SCRA 652,
664-665)
These requirements were found by the Court to have been met in People v. Uyboco (G.R.
No. 178039, January 19, 2011, 640 SCRA 146), where it was shown that the ―police officers
present in Magallanes Commercial Center were able to witness the pay-off which effectively
consummates the crime of kidnapping. They all saw appellant take the money from the car
trunk of Jepson. Such knowledge was then relayed to the other police officers stationed in Fort
Bonifacio where appellant was expected to pass by.‖
The foregoing circumstances show that while the element of personal knowledge under
Section 5 (b) above was present - given that PO3 Din actually saw the March 15, 2007 robbery
incident and even engaged the armed robbers in a shootout - the required element of
immediacy was not met. This is because, at the time the police officers effected the warrantless
arrest upon Manago's person, investigation and verification proceedings were already
conducted, which consequently yielded sufficient information on the suspects of the March 15,
2007 robbery incident. As the Court sees it, the information the police officers had gathered
therefrom would have been enough for them to secure the necessary warrants against the
robbery suspects. However, they opted to conduct a "hot pursuit" operation which - considering
the lack of immediacy - unfortunately failed to meet the legal requirements therefor. Thus, there
being no valid warrantless arrest under the "hot pursuit" doctrine, the CA erred in ruling that
Manago was lawfully arrested. (People v. Manago, G.R. No. 212340, August 17, 2016)
[Note: In the same manner, the present circumstances do not suffice to fulfill the requirements for
a hot pursuit arrest. The prosecution did not allege and prove that SPO4 Pequiras and the arresting
76
officers have personal knowledge of facts that Marvin had just committed an offense. Neither does the
anonymous report of a suspicious person operate to vest personal knowledge on the police officers about
the commission of an offense. (Porteria v. People, G.R. No. 233777, March 20, 2019)
There being no valid warrantless arrest, the search conducted on Marvin's body and belongings is
likewise unjustified. The law requires that there should be a lawful arrest prior to the search. The process
cannot be reversed. "[W]here a person is searched without a warrant, and under circumstances other than
those justifying a warrantless arrest x x x upon a mere suspicion that he has embarked on some criminal
activity, and/or for the purpose of discovering if indeed a crime [was] committed by him, then the
search x x x of such person as well as his arrest are deemed illegal." The CA thus committed a reversible
error in deeming the search valid without making a prior determination of the legality of the arrest.
(Porteria v. People, G.R. No. 233777, March 20, 2019)]
Search Warrants
―A search warrant proceeding is, in no sense, a criminal action or the commencement of a
prosecution. The proceeding is not one against any person, but is solely for the discovery and to
get possession of personal property. It is a special and peculiar remedy, drastic in nature, and
made necessary because of public necessity. It resembles in some respect with what is
commonly known as John Doe proceedings. While an application for a search warrant is
entitled like a criminal action, it does not make it such an action. A search warrant is a legal
process which has been likened to a writ of discovery employed by the State to procure relevant
evidence of crime. It is in the nature of a criminal process, restricted to cases of public
prosecutions. A search warrant is a police weapon, issued under the police power. A search
warrant must issue in the name of the State, namely, the People of the Philippines. A search
warrant has no relation to a civil process. It is not a process for adjudicating civil rights or
maintaining mere private rights. It concerns the public at large as distinguished from the
ordinary civil action involving the rights of private persons. It may only be applied for in the
furtherance of public prosecution.‖ (United Laboratories, Inc. v. Isip, 500 Phil. 342 [2005];
Worldwide Web Corporation v. People, G.R. No. 161106, January 13, 2014)
[Note: The requisites, procedure and purpose for SW issuance are totally different from those of a
criminal action. The application for and issuance of a SW is not a criminal action but a judicial process,
more particularly, a special criminal process designed to respond to an incident in the main case, if one
has been instituted, or in anticipation thereof. The power to issue SW is inherent in all courts, such that
the power of courts to issue SWs where the place to be searched is within their jurisdiction is not
intended to exclude other courts from exercising the same power. (Petron Gasul LPG Dealers Association v.
Lao, G.R. No. 205010, July 18, 2016, citing Malaloan v. Court of Appeals, G.R. No. 104879, May 6, 1994)]
In Pita v. Court of Appeals (178 SCRA 362), the Supreme Court, after making an extensive
exposition of the interpretation of the word ―obscenity,‖ declared that copies of a magazine
entitled Pinoy Playboy could not be summarily confiscated in line with the anti-smut campaign
of the City of Manila. A search warrant must have first been issued after the judge shall have
been convinced of the existence of probable cause that the materials sought to be seized were
indeed obscene.
The ―production order,‖ which ―may be likened to the production of documents or things
under Section 1, Rule 27 of the Rules of Civil Procedure‖ (Secretary of National Defense v. Manalo,
G.R. No. 180906, October 7, 2008, 568 SCRA 1), or the ―inspection order,‖ which is ―an interim
77
relief designed to give support or strengthen the claim of a petitioner in an amparo petition, in
order to aid the court before making a decision‖ (Roxas v. Macapagal-Arroyo, G.R. No. 189155,
September 7, 2010, 630 SCRA 211) under the Amparo Rule (A.M. No. 07-9-12-SC) and the ―bank
inquiry order‖ (Republic of the Philippines v. Eugenio, G.R. No. 174629, February 14, 2008, 545
SCRA 384) under the Anti-Money Laundering Act (Section 11) ―should not be confused with a
search warrant for law enforcement under Article III, Section 2 of the 1987 Constitution.‖
[Note: In the issuance of a bank inquiry order, the power to determine the existence of probable
cause is lodged in the trial court. (Republic v. Bolante, G.R. No. 186717/G.R. No. 190357, April 17, 2017)]
[Note: Ligot (Ligot v. Republic, G.R. No. 176944, March 6, 2013) clarifies that "probable cause refers
to the sufficiency of the relation between an unlawful activity and the property or monetary instrument
which is the focal point of Section 10 of the AMLA, as amended." This same probable cause is likewise the
focal point in a bank inquiry order to further determine whether the account under investigation is linked
to unlawful activities and/or money laundering offense. (Subido, Pagente, Certeza, Mendoza and Binay Law
Offices v. The Court of Appeals, G.R. No. 216914, December 6, 2016)]
[Note: The Constitution and the Rules of Court prescribe particular requirements attaching to
search warrants that are not imposed by the AMLA with respect to bank inquiry orders. A constitutional
warrant requires that the judge personally examine under oath or affirmation the complainant and the
witnesses he may produce, such examination being in the form of searching questions and answers.
Those are impositions which the legislative did not specifically prescribe as to the bank inquiry order
under the AMLA and we cannot find sufficient legal basis to apply them to Section 11 of the AMLA.
Simply put, a bank inquiry order is not a search warrant or warrant of arrest as it contemplates a direct
object but not the seizure of persons or property. (Republic v. Eugenio, G.R. No. 174629, February 14, 2008,
569 Phil. 98, 545 SCRA 384, cited in Subido, Pagente, Certeza, Mendoza and Binay Law Offices v. The Court of
Appeals, G.R. No. 216914, December 6, 2016)]
[Note: Even as the Constitution and the Rules of Court impose a high procedural standard for the
determination of probable cause for the issuance of search warrants which Congress chose not to
prescribe for the bank inquiry order under the AMLA, Congress nonetheless disallowed ex parte
applications for the inquiry order. We can discern that in exchange for these procedural standards
normally applied to search warrants, Congress chose instead to legislate a right to notice and a right to be
heard — characteristics of judicial proceedings which are not ex parte. Absent any demonstrable
constitutional infirmity, there is no reason for us to dispute such legislative policy choices. (Subido,
Pagente, Certeza, Mendoza and Binay Law Offices v. The Court of Appeals, G.R. No. 216914, December 6, 2016)
Who May Apply
The rule is that ―every application for search warrant shall be personally endorsed by
the heads of such agencies as enumerated in Section 12 Chapter V of A.M. No. 03-8-02-SC.‖
(Tomas v. Criminal Investigation and Detection Group, G.R. No. 208090, November 9, 2016)
This Court, however, finds that nothing in A.M. No. 03-8-02-SC prohibits the heads of the
National Bureau of Investigation (NBI), the Philippine National Police (PNP) and the AntiCrime Task Force (ACTAF) from delegating their ministerial duty of endorsing the application
for search warrant to their assistant heads. (Tomas v. Criminal Investigation and Detection Group,
G.R. No. 208090, November 9, 2016)
78
Where to File
An application for search warrant shall be filed with the following: (a) Any court within
whose territorial jurisdiction a crime was committed. (b) For compelling reasons stated in the
application, any court within the judicial region where the crime was committed if the place of
the commission of the crime is known, or any court within the judicial region where the warrant
shall be enforced. However, if the criminal action has already been filed, the application shall
only be made in the court where the criminal action is pending. (Rules of Court, Rule 126,
Section 2)
It must be noted that nothing in the above-quoted rule does it say that the court issuing a
search warrant must also have jurisdiction over the offense. A search warrant may be issued by
any court pursuant to Section 2, Rule 126 of the Rules of Court and the resultant case may be
filed in another court that has jurisdiction over the offense committed. What controls here is
that a search warrant is merely a process, generally issued by a court in the exercise of its
ancillary jurisdiction, and not a criminal action to be entertained by a court pursuant to its
original jurisdiction. Thus, in certain cases when no criminal action has yet been filed, any court
may issue a search warrant even though it has no jurisdiction over the offense allegedly
committed, provided that all the requirements for the issuance of such warrant are present.
(People v. Castillo, G.R. No. 204419, November 7, 2016)
Generally, the SW application must be filed with the court which has territorial
jurisdiction over the place where the offense was alleged to be committed. This, however, is not
an iron-clad rule. For compelling reasons, which must be expressly stated in the application, an
SW application may be filed in a court other than the one having jurisdiction over the place
where the purported offense was committed and where the SW shall be enforced. (Petron Gasul
LPG Dealers Association v. Lao, G.R. No. 205010, July 18, 2016)
It is settled that the inclusion of a statement of compelling reasons in a search warrant
application that is filed in a court which does not have territorial jurisdiction over the place of
commission of the alleged crime is a mandatory requirement, and the absence of such statement
renders the application defective. The absence of a statement of compelling reasons, however, is
not a ground for the outright denial of a search warrant application, since it is not one of the
requisites for the issuance of a search warrant. (Re: Report on the Preliminary Results of the Spot
Audit in the Regional Trial Court, Branch 170, Malabon City, A.M. No. 16-05-142-RTC, September 5,
2017)
Probable Cause for Search Warrants
The judge must, before issuing the warrant, personally examine in the form of searching
questions and answers, in writing and under oath, the complainant and the witnesses he may
produce on facts personally known to them and attach to the record their sworn statements,
together with the affidavits submitted. (Rules of Court, Rule 126, Section 5) If the judge is
satisfied of the existence of facts upon which the application is based or that there is probable
cause to believe that they exist, he shall issue the warrant, which must be substantially in the
form prescribed by these Rules. (Ibid., Section 6; Petron Gasul LPG Dealers Association v. Lao, G.R.
No. 205010, July 18, 2016)
79
[Note: Probable cause for a search warrant is defined as such facts and circumstances which would
lead a reasonably discreet and prudent man to believe that an offense has been committed and that the
objects sought in connection with the offense are in the place sought to be searched. A finding of probable
cause needs only to rest on evidence showing that, more likely than not, a crime has been committed and
that it was committed by the accused. Probable cause demands more than bare suspicion; it requires less
than evidence which would justify conviction. The judge, in determining probable cause, is to consider
the totality of the circumstances made known to him and not by a fixed and rigid formula, and must
employ a flexible, totality of the circumstances standard. (Del Castillo v. People, G.R. No. 185128, January
30, 2012, 664 SCRA 430; Petron Gasul LPG Dealers Association v. Lao, G.R. No. 205010, July 18, 2016)]
Ideally, compliance with the examination requirement is shown by the depositions and
the transcript. In their absence, however, a warrant may still be upheld if there is evidence in
the records that the requisite examination was made and probable cause was based thereon.
There must be, in the records, particular facts and circumstances that were considered by the
judge as sufficient to make an independent evaluation of the existence of probable cause to
justify the issuance of the search warrant. (Ogayon v. People, G.R. No. 188794, September 2, 2015)
[Note: The intent was to ensure that a warrant is issued not merely on the basis of the affidavits of
the complainant and his witnesses, but only after examination by the judge of the complainant and his
witnesses. As the same examination requirement was adopted in the present Constitution, we declared
that affidavits of the complainant and his witnesses are insufficient to establish the factual basis for
probable cause. Personal examination by the judge of the applicant and his witnesses is indispensable,
and the examination should be probing and exhaustive, not merely routinary or a rehash of the affidavits.
(Ogayon v. People, G.R. No. 188794, September 2, 2015)]
A search warrant based on an affidavit which, in turn, was based on ―reliable
information‖ and ―correct to the best of his knowledge and belief‖ is invalid. (Alvarez v. CFI, 64
Phil. 33) Mere affidavits are usually not enough to issue a search warrant. The judge must take
depositions in writing and attach them to the record as these are necessary to determine the
existence of probable cause. (Mata v. Bayona, 128 SCRA 388; Ogayon v. People, G.R. No. 188794,
September 2, 2015)
[Note: Ogayon‘s appeal of his conviction essentially rests on his claim that the search warrant was
defective because ―there was no transcript of stenographic notes of the proceedings in which the issuing
judge had allegedly propounded the required searching questions and answers in order to determine the
existence of probable cause.‖ xxx the failure to attach to the records the depositions of the complainant
and his witnesses and/or the transcript of the judge‘s examination, though contrary to the Rules, does not
by itself nullify the warrant. The requirement to attach is merely a procedural rule and not a component
of the right. Rules of procedure or statutory requirements, however salutary they may be, cannot provide
new constitutional requirements. (Ogayon v. People, G.R. No. 188794, September 2, 2015)]
In Paper Industries Corporation of the Philippines v. Asuncion (G.R. No. 122092, May 19, 1999,
307 SCRA 253), the Supreme Court nullified a search warrant notwithstanding the issuing
judge‘s claims that ―the court propounded searching questions to the applicant and the witnesses
in order to determine whether there was probable cause.‖ The Court said that the records
―proclaim otherwise.‖ They showed that the hearing for the issuance of the search warrant was
limited only to the introduction of two witnesses, one of whom, the applicant, merely stated his
―name, age, civil status, occupation, address and other personal circumstances.‖ The Court
80
noted that ―he failed even to affirm his application.‖ The only other witness was likewise shown
not to have had any personal knowledge of the facts alleged in the subject application,
particularly with respect to the specification in the subject warrant that the firearms listed
therein were not licensed.
Specific Offense
A search warrant shall not issue except upon probable cause in connection with one
specific offense to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing
the place to be searched and the things to be seized which may be anywhere in the Philippines.
(Rules of Court, Rule 126, Section 4)
Among the search warrants which have been declared unlawful were so-called scatter-shot
warrants, or those which alleged violations of CB circulars, Tariff and Customs laws, the Internal
Revenue Code and the Revised Penal Code (Stonehill v. Diokno, 20 SCRA 383), or which was for
four separate and distinct offenses (Asian Surety & Insurance v. Herrera, 54 SCRA 312), or for
―illegal traffic in narcotics and contraband‖ (Castro v. Pabalan, 70 SCRA 477), or for robbery,
theft, qualified theft or Estafa (People v. Court of Appeals, 216 SCRA 101)
The ―hoarding‖ of used bottles (Coca-Cola Bottlers Phils., Inc. v. Gomez, G.R. No. 154491,
November 14, 2008, 571 SCRA 18) and ―violation of the goodwill‖ established by a motorcycle
manufacturer (Hon Ne Chan v. Honda Motor Co., Ltd., G.R. No. 172775, December 19, 2007, 541
SCRA 249) are not crimes or offenses and may therefore not be invoked for purposes of
applying for or obtaining search warrants.
[Note: In Century Chinese Medicine Co. v. People (G.R. No. 188526, November 11, 2013, 709 SCRA
177), the Supreme Court found a specific offense to have been properly indicated in a search warrant
despite the petitioners‘ contention that ―the products seized from their respective stores cannot be the
subject of the search warrants and seizure as those Top Gel products are not fruits of any crime, infringed
product nor intended to be used in any crime; that they are legitimate distributors who are authorized to
sell the same, since those genuine top gel products bore the original trademark/tradename of TOP GEL
MCA, owned and distributed by Yu.‖ The Court noted that the ―applications for the issuance of the
assailed search warrants were for violations of Sections 155 and 168, both in relation to Section 170 of
Republic Act (RA) No. 8293, otherwise known as the Intellectual Property Code of the Philippines.‖ They
were issued ―in anticipation of criminal actions for violation of intellectual property rights under RA
8293.‖]
Evidence seized by virtue of the search warrants issued in connection with the case of
Robbery cannot be utilized in a separate case of Qualified Theft, even if both cases emanated
from the same incident.‖ (Tan v. Sy Tiong Gue, G.R. No. 174570, December 15, 2010, 638 SCRA
601)
In this case, Search Warrant No. 01-118 was issued for "violation of R.A. No. 8799 (The
Securities Regulation Code) and for estafa (Art. 315, RPC)."
First, violation of the SRC is not an offense in itself for there are several punishable acts
under the said law such as manipulation of security prices, insider trading, acting as dealer or
81
broker without being registered with the SEC, use of unregistered exchange, use of unregistered
clearing agency, and violation of the restrictions on borrowings by members, brokers, and
dealers among others. Even the charge of "estafa under Article 315 of the RPC" is vague for
there are three ways of committing the said crime: (1) with unfaithfulness or abuse of
confidence; (2) by means of false pretenses or fraudulent acts; or (3) through fraudulent means.
The three ways of committing estafa may be reduced to two, i.e., (1) by means of abuse of
confidence; or (2) by means of deceit. For these reasons alone, it can be easily discerned that
Search Warrant No. 01-118 suffers a fatal defect. xxx. (People v. Pastrana and Abad, G.R. No.
196045, February 21, 2018)
[Note: Moreover, the SRC is not merely a special penal law. It is first and foremost a codification of
various rules and regulations governing securities. Thus, unlike, the drugs law wherein there is a clear
delineation between use and possession of illegal drugs, the offenses punishable under the SRC could not
be lumped together in categories. Hence, it is imperative to specify what particular provision of the SRC
was violated. (People v. Pastrana and Abad, G.R. No. 196045, February 21, 2018)]
[Note: Finally, the Court's rulings in Columbia Pictures, Inc. v. CA (Columbia) (329 Phil. 875 [1996])
and Laud v. People (Laud) (747 Phil. 503 [2014]) even militate against petitioner. In Columbia, the Court
ruled that a search warrant which covers several counts of a certain specific offense does not violate the
one-specific-offense rule xxx. In Laud, Search Warrant No. 09-14407 was adjudged valid as it was issued
only for one specific offense - that is, for Murder, albeit for six (6) counts. (People v. Pastrana and Abad, G.R.
No. 196045, February 21, 2018)]
At the outset, there is no merit to petitioners' contention that the search warrant was
applied for in connection with two unrelated offenses, i.e., kidnapping and murder, in violation
of Section 4, Rule 126 of the Rules of Court which requires that such warrant must be issued in
relation to one offense. Suffice it to state that where a person kidnapped is killed or dies as a
consequence of the detention, there is only one special complex crime for which the last
paragraph of Article 267 of the Revised Penal Code provides the maximum penalty that shall be
imposed, i.e., death. (Dimal and Castillo v. People, G.R. No. 216922, April 18, 2018)
[Note: It is not amiss to add that a search warrant that covers several counts of a certain specific
offense does not violate the one-specific-offense rule. (Dimal and Castillo v. People, G.R. No. 216922, April
18, 2018)]
Particularity of Description
A general warrant is defined as a ―search or arrest warrant that is not particular as to the
person to be arrested or the property to be seized." It is one that allows the "seizure of one thing
under a warrant describing another" and gives the officer executing the warrant the discretion
over which items to take. (Vallejo v. Court of Appeals, G.R. No. 156413, April 14, 2004, 427 SCRA
658, citing Black‘s Law Dictionary, "warrant," p. 1585)
A search warrant issued must particularly describe the place to be searched and persons
or things to be seized in order for it to be valid (Del Castillo v. People, G.R. No. 185128, January
30, 2012, 664 SCRA 430); otherwise, it is considered as a general warrant which is proscribed by
both jurisprudence and the 1987 Constitution. (Uy Kheytin v. Villareal, 42 Phil. 886, 896-897
[1920])
82
A warrant would be valid when it enables the police officers to readily identify the
properties to be seized and leaves them with no discretion regarding the articles to be seized.
(Hon Ne Chan v. Honda Motor Co., Ltd., 565 Phil. 545, 557 [2007], 541 SCRA 249)
A search warrant fulfills the requirement of particularity in the description of the things to
be seized when the things described are limited to those that bear a direct relation to the offense
for which the warrant is being issued. (Bache and Co., (Phil.) Inc. v. Ruiz, 147 Phil. 794 (1971), 37
SCRA 823)
The things to be seized must be described with particularity. Technical precision of
description is not required. It is only necessary that there be reasonable particularity and
certainty as to the identity of the property to be searched for and seized, so that the warrant
shall not be a mere roving commission. Indeed, the law does not require that the things to be
seized must be described in precise and minute detail as to leave no room for doubt on the part
of the searching authorities. If this were the rule, it would be virtually impossible for the
applicants to obtain a warrant as they would not know exactly what kind of things to look for.
Any description of the place or thing to be searched that will enable the officer making the
search with reasonable certainty to locate such place or thing is sufficient. (Vallejo v. Court of
Appeals, G.R. No. 156413, April 14, , 427 SCRA 658)
―It is only required that a search warrant be specific as far as the circumstances will
ordinarily allow, such that: a search warrant may be said to particularly describe the things to
be seized when the description therein is as specific as the circumstances will ordinarily allow;
or when the description expresses a conclusion of fact – not of law - by which the warrant
officer may be guided in making the search and seizure; or when the things described are
limited to those which bear direct relation to the offense for which the warrant is being issued.‖
(Bache & Co. (Phil.), Inc. v. Ruiz, 147 Phil. 794, 811 [1971], 37 SCRA 823, cited in PLDT v. HPS
Software and Communication Corporation, G.R. No. 170694, December 10, 2012, 687 SCRA 426)
A warrant which specified ―books, documents, receipts, lists, chits and other papers used
by him in connection with his activities as money-lender, charging a usurious interest, in
violation of law‖ was considered as a valid description in Alvarez v. CFI (64 Phil. 33).
―The particularity of the description of the place to be searched and the things to be seized
is required ‗wherever and whenever it is feasible.‘ xxx. A search warrant need not describe the
items to be seized in precise and minute detail. xxx. The police should not be hindered in the
performance of their duties, which are difficult enough of performance under the best of
conditions, by superficial adherence to technicality or far-fetched judicial interference."
(Worldwide Web Corporation v. People, G.R. No. 161106, January 13, 2014, citing People v. Veloso, 48
Phil. 169 [1925])
[Note: The Court found the subject search warrants as ―not general warrants because the items to
be seized were sufficiently identified physically and were also specifically identified by stating their
relation to the offenses charged which are Theft and Violation of Presidential Decree No. 401 through the
conduct of illegal ISR activities.‖ It stated that ―taken together, the aforementioned pieces of evidence are
more than sufficient to support a finding that test calls were indeed made by PLDT‘s witnesses using
Mabuhay card with PIN code number 332 1479224 and, more importantly, that probable cause necessary
to engender a belief that HPS Corporation, et al. had probably committed the crime of Theft through
83
illegal ISR activities exists. (Worldwide Web Corporation v. People, G.R. No. 161106, January 13, 2014, citing
People v. Veloso, 48 Phil. 169 [1925])]
With regard to the designation of the place to be searched, the RTC sufficiently justified
that the search warrant particularly described the place to be searched: a sketch showing the
location of the house to be searched was attached to the application and the search warrant
pointed to only one house in the area. (People v. Posada, G.R. No. 196052, September 2, 2015)
A long-standing rule is that a description of the place to be searched is sufficient if the
officer with the warrant can, with reasonable effort, ascertain and identify the place intended
and distinguish it from other places in the community. Any designation or description known
to the locality that points out the place to the exclusion of all others, and on inquiry leads the
officers unerringly to it, satisfies the constitutional requirement. People v. Veloso, 48 Phil. 169;
People v. Posada, G.R. No. 196052, September 2, 2015)
Among those which have been considered as general warrants are those which specified
―records pertaining to all business transactions‖ (Stonehill v. Diokno, 20 SCRA 383); ―equipment
used as means for committing offenses‖ (Burgos v. Chief of Staff, 133 SCRA 800); and
―documents, papers and other records of the CPP/NPA/NDF, such as minutes of the party
meetings, plans of these groups, programs, list of possible supporters, subversive books and
instructions, manuals not otherwise available to the public and support money from foreign or
local sources.‖ (Nolasco v. Paño, 139 SCRA 152)
A similar ruling was made in 20th Century Fox Film Corporation v. Court of Appeals, (164
SCRA 655; see also Columbia Pictures, Inc. v. Flores, 223 SCRA 761) where the properties sought
to be seized were described as ―television sets, video cassette recorders, rewinders and tape
cleaners‖ without any specific indication that they were being used in violating the Anti-Piracy
Law.
In Paper Industries Corporation of the Philippines v. Asuncion (G.R. No. 122092, May 19, 1999,
307 SCRA 253), the Supreme Court noted that the assailed search warrant identified only one
place to be searched, to wit, ―Paper Industries Corporation of the Philippines, located at PICOP
Compound, Barangay Tabon, Bislig[,] Surigao del Sur,‖ and authorized the search of ―the
aforementioned premises.‖ It was however shown that the compound subject of the search
warrant was ―made up of ―200 offices/buildings, 15 plants, 84 staff houses, 1 airstrip, 3
piers/wharves, 23 warehouses, 6 POL depots/quick service outlets and some 800 miscellaneous
structures, all of which are spread out over some one hundred fifty-five hectares.‖ The Court
invalidated the warrant, observing that, ―obviously, the warrant gives the police officers
unbridled and thus illegal authority to search all the structures found inside the PICOP
compound.‖
A nipa hut located about twenty meters away from the house subject of the search warrant
is ―no longer within the permissible area‖ of the search.‖ (Del Castillo v. People, G.R. No. 185128,
January 30, 2012, 664 SCRA 430)
But while a John Doe warrant is generally held invalid, it will satisfy the constitutional
requirement if there is some descriptio personae that will enable the officer to identify the
84
accused. Accordingly, it was held in People v. Veloso (G.R. No. L-23051, October 20, 1925, 48 Phil.
169) that the warrant was valid although issued against a John Doe only where it was shown
that he was described as occupying and in control of a building at a specified address.
[Note: A person may be considered as having constructive possession of prohibited drugs even when
he is not home when the prohibited drugs are found in the master‘s bedroom of his house (People v.
Torres, G.R. No. 170837, September 12, 2006, 501 SCRA 591); or when the accused had full access to the
room, including the space under the bed (People v. Tira, G.R. No. 139615, May 28, 2004, 430 SCRA 134); or
when the prohibited drugs which had been found in the drawer located in her bedroom (Abuan v. People,
G.R. No. 168773, October 27, 2006, 505 SCRA 799)]
[Note: Even assuming that petitioner is not the owner of the house where the items were
recovered, the ownership of the house is not an essential element of the crime under PD 1866 as
amended. While petitioner may not be the owner, he indeed had control of the house as shown by the
following circumstances: (1) When the PAOCTF went to the house to serve the search warrant, petitioner
was very angry and restless and even denied having committed any illegal act, but he was assured by
P/SInsp. Dueñas that he has nothing to answer if they would not find anything, thus, he consented to the
search being conducted; (2) while the search was ongoing, petitioner merely observed the conduct of the
search and did not make any protest at all; and (3) petitioner did not call for the alleged owner of the
house. (Note: It was convincingly proved that petitioner had constructive possession of the gun and the
ammunitions, coupled with the intent to possess the same. Petitioner's act of immediately rushing from
the living room to the room where SPO2 Abellana found a calibre .45 and grappled with the latter for the
possession of the gun proved that the gun was under his control and management. He also had the
animus possidendi or intent to possess the gun when he tried to wrest it from SPO2 Abellana.) (Jacaban v.
People, G.R. No. 184355, March 23, 2015)]
[Note: Accused-appellant was merely a guest of Boy Bicol. Since accused-appellant was not in
possession of the illegal drugs in Boy Bicol‘s nipa hut, his subsequent arrest was also invalid. Accusedappellant‘s act of pointing a firearm at the buy-bust team would have been sufficient basis for his arrest
in flagrante delicto; however, the prosecution was not able to adequately prove that accused-appellant was
committing an offense. Although accused-appellant merely denied possessing the firearm, the
prosecution‘s charge was weak absent the presentation of the alleged firearm. He was eventually
acquitted by the trial court because of this gaffe. His arrest, independent of the buy-bust operation
targeting Boy Bicol, was therefore not lawful as he was not proved to be committing any offense. Given
the circumstances, we find that the prosecution failed to establish possession of the shabu, whether in its
actual or constructive sense, on the part of accused-appellant. (People v. de la Cruz, G.R. No. 182348,
November 20, 2008, 571 SCRA 469)]
[Note: In a case involving a search warrant for trademark infringement and unfair competition,
which was served at the premises of REGASCO LPG Refilling Station, which was owned by the corporate
petitioner,, the Supreme Court held that the individual petitioners, ―being corporate officers and/or
directors, through whose act, default or omission the corporation commits a crime, may themselves be
individually held answerable for the crime,‖ considering that they, ―being in direct control and
supervision in the management and conduct of the affairs of the corporation, must have known or are
aware that the corporation is engaged in the act of refilling LPG cylinders bearing the marks of the
respondents without authority or consent from the latter which, under the circumstances, could probably
constitute the crimes of trademark infringement and unfair competition. The existence of the corporate
entity does not shield from prosecution the corporate agent who knowingly and intentionally caused the
corporation to commit a crime.‖ (Republic Glass Corporation v. Petron Corporation, G.R. No. 194062, June 17,
2013, 698 SCRA 666)]
85
As regards SPCMB's contention that the bank inquiry order is in the nature of a general
warrant, Eugenio already declared that Section 11, even with the allowance of an ex parte
application therefor, "is not a search warrant or warrant of arrest as it contemplates a direct
object but not the seizure of persons or property." It bears repeating that the ''bank inquiry
order" under Section 11 is a provisional remedy to aid the AMLC in the enforcement of the
AMLA. (Subido, Pagente, Certeza, Mendoza and Binay Law Offices v. The Court of Appeals, G.R. No.
216914, December 6, 2016)
Contrary to petitioners' submission, the search warrant issued by Judge Ong identified
with particularity the place to be searched, namely; (1) the house of Jaylord Dimal and (2) the
palay warehouse in the premises of the Felix Gumpal Compound at Ipil Junction, Echague,
Isabela. xxx. A description of a place to be searched is sufficient if the officer with the warrant
can ascertain and identify with reasonable effort the place intended, and distinguish it from
other places in the community. A designation that points out the place to be searched to the
exclusion of all others, and on inquiry unerringly leads the peace officers to it, satisfies the
constitutional requirement of definiteness. To the Court's view, the above-quoted search
warrant sufficiently describes the place to be searched with manifest intention that the search be
confined strictly to the place described. (Dimal and Castillo v. People, G.R. No. 216922, April 18,
2018)
Meanwhile, a search warrant may be said to particularly describe the things to be seized
(1) when the description therein is as specific as the circumstances will ordinarily allow; or (2)
when the description expresses a conclusion of fact - not of law by which the warrant officer
may be guided in making the search and seizure; (3) and when the things to be described are
limited to those which bear direct relation to the offenses for which the warrant is being issued.
The purpose for this requirement is to limit the articles to be seized only to those particularly
described in the search warrant in order to leave the officers of the law with no discretion
regarding what items they shall seize, to the end that no unreasonable searches and seizures
will be committed. (Dimal and Castillo v. People, G.R. No. 216922, April 18, 2018)
In Search Warrant No. 10-11, only two things were particularly described and sought to
be seized in connection with the special complex crime of kidnapping with murder, namely: (1)
blood-stained clothes of Gemma Eugenio consisting of a faded pink long sleeves jacket and a
black t-shirt, and (2) a 0.9mm caliber pistol. Having no direct relation to the said crime, the 1,600
sacks of palay that were supposedly sold by the victims to Dimal and found in his warehouse,
cannot be a proper subject of a search warrant because they do not fall under the personal
properties stated under Section 3 of Rule 126, to wit: (a) subject of the offense; (b) stolen or
embezzled and other proceeds or fruits of the offense; or (c) those used or intended to be used
as the means of committing an offense, can be the proper subject of a search warrant. (Dimal and
Castillo v. People, G.R. No. 216922, April 18, 2018)
That the house of petitioner was composed of several units separately occupied by her
siblings was discovered only after the search warrant was enforced and the search of
petitioner's house was conducted by the police officers. Notably, PO2 Avila could not have
known or detected the multi-unit character of petitioner's house prior to the actual search.
86
On this point, it has been held that the requirement of particularity as to the things to be
seized does not require technical accuracy in the description of the property to be seized, and
that a search warrant may be said to particularly describe the things to be seized when the
description therein is as specific as the circumstances will ordinarily allow it to be
described. The same principle should be applied in the case at bench. It would be unreasonable
to expect PO2 Avila, or an outsider such as Labrador for that matter, to have extensive
knowledge of the interior set-up or floor plan of petitioner's house without, however, having
apparent authority or opportunity to access the premises prior to the search.
In this regard, the Court holds that the validity of the warrant must be assessed on the
basis of the pieces of information made available to Judge Morga at the time PO2 Avila applied
for the issuance of the search warrant which, in this case, were sufficiently supported by the
sketches of Labrador, and the testimonies of PO2 Avila and Labrador, who were, in fact,
personally examined by Judge Morga in the form of searching questions and answers. Quoting
Justice John Paul Stevens' opinion in Maryland v. Garrison:
Those items of evidence that emerge after the warrant is issued have no bearing
on whether or not a warrant was validly issued. Just as a discovery of the contraband
cannot validate a warrant invalid when issued, so is it equally clear that the discovery of
facts demonstrating that a valid warrant was unnecessarily broad does not retroactively
invalidate the warrant. The validity of the warrant must be assessed on the basis of the
information that the officers disclosed, or had a duty to discover and disclose, to the
issuing Magistrate. (Diaz v. People, G.R. No. 213875, July 15, 2020)
The rule is that a description of the place to be searched is sufficient if the officer with the
warrant can, with reasonable effort, ascertain and identify the place intended and distinguish it
from other places in the community. Any designation or description known to the locality that
points out the place to the exclusion of all others, and on inquiry, leads the officers unerringly to
it, satisfies the constitutional requirement. A search warrant is deemed to have described the
place to be searched with sufficient particularity when the premises have been identified as
being occupied by the accused., As aptly found by the courts below, the search warrant here
stated at the place to be searched was appellant's "rented residence and its premises located [on]
6th Street, Guingona Subdivision, Barangay 25, Jose P. Rizal, Butuan City." The apprehending
officers became and were in fact familiar with the place to be searched as a result of the test buy
which they had conducted just hours before the search. Further, appellant has not denied that
the store formed part of the "rented residence" and was not a separate structure. (People v.
Magayon, G.R. No. 238873, September 16, 2020)
Enforcement of Search Warrants
Section 8. Search of house, room, or premise to be made in presence of two witnesses. - No search
of a house, room, or any other premise shall be made except in the presence of the lawful occupant
thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age
and discretion residing in the same locality. (Rule 126, Rules of Court)
The law is mandatory to ensure the regularity in the execution of the search warrant. This
requirement is intended to guarantee that the implementing officers will not act arbitrarily
87
which may tantamount to desecration of the right enshrined in our Constitution. (Dabon v.
People, G.R. No. 208775, January 22, 2018)
[Note: In this case, it is undisputed that Dabon and his wife were actually present in their residence
when the police officers conducted the search in the bedroom where the drugs and drug paraphernalia
were found. It was also undisputed that, as the CA recognized, only Brgy. Kagawad Angalot was present
to witness the same. (Dabon v. People, G.R. No. 208775, January 22, 2018)]
Failure to comply with the safeguards provided by law in implementing the search
warrant makes the search unreasonable. Thus, the exclusionary rule applies, i.e., any evidence
obtained in violation of this constitutional mandate is inadmissible in any proceeding for any
purpose. We emphasize that the exclusionary rule ensures that the fundamental rights to one's
person, houses, papers, and effects are not lightly infringed upon and are upheld. (Dabon v.
People, G.R. No. 208775, January 22, 2018)
Section 9, Rule 126 of the Rules of Court states:
Section 9. Time of making search. – The warrant must direct that it be served in the day
time, unless the affidavit asserts that the property is on the person or in the place ordered
to be searched, in which case a direction may be inserted that it be served at any time of
the day or night.
In this case, the search warrant stated that the search shall be made at "ANY TIME OF
THE DAY OR NIGHT." Notably, the RTC Cebu City issued the search warrant based on the
deposition of PO3 Arturo C. Enriquez and PO3 Jesus Manulat, which stated that they allegedly
bought shabu from petitioner at about 9:00 in the evening. Thus, the RTC Cebu City had basis to
state that the search warrant may also be implemented at dawn or early morning.
Further, petitioner failed to prove that the entry of police officers in his house was
unreasonable. Section 7, Rule 126 of the Rules of Court states:
Section 7. Right to break door or window to effect search. – The Officer, if refused admittance to
the place of directed search after giving notice of his purpose and authority, may break open any
outer or inner door or window of a house or any part of a house or anything therein to execute
the warrant or liberate himself or any person lawfully aiding him when unlawfully detained
therein.
As testified by SPO2 Matillano, when they went to the house of petitioner, they knocked
on the door and called out petitioner's name but nobody answered. Thus, they bumped the
door open on the ground floor to be able to enter petitioner's house. However, the second floor,
where petitioner and his children were staying, also had a locked door. At that moment, they
tried to convince petitioner to open the door, to which he obliged. Verily, the police officers
followed Sec. 7, Rule 126 when they forcibly opened the door of the first floor because they were
refused admittance despite giving notice to petitioner. (Tumabini v. People, G.R. No. 224495,
February 19, 2020)
Based on verba legis, Sec. 21 of R.A. No. 9165, as amended, operates as long as there is
seizure and confiscation of drugs. It does not distinguish between warrantless seizure of the
88
drugs in a buy-bust operation and in the implementation of a search warrant. Accordingly, in
every situation where there is a seizure and confiscation of drugs, the presence of the accused,
or his/her representative or counsel, a representative from the media and the DOJ, and any
elected public official, is required during the physical inventory and taking of photographs of
the seized drugs, because they shall be required to sign the copies of the inventory and be given
a copy thereof.
The Court is aware that Section 8, Rule 126 of the Revised Rules of Criminal Procedure
provides that only two (2) witnesses are required to be present during the implementation of a
search warrant:
Section 8. Search of house, room, or premise to be made in presence of two witnesses. – No search
of a house, room, or any other premise shall be made except in the presence of the lawful
occupant thereof or any member of his family or in the absence of the latter, two witnesses of
sufficient age and discretion residing in the same locality.
Nevertheless, Sec. 8 of Rule 126 is a general provision with respect to the
implementation of search warrants in all kinds of cases, such as for illegal firearms, infringing
goods, or incriminating documents. On the other hand, Sec. 21 of R.A. No. 9165, as amended,
and as implemented by its Implementing Rules and Regulations (IRR), is a special provision
that applies specifically to the seizure and confiscation of dangerous drugs. In case of conflict
between a general law and a special law, the latter must prevail regardless of the dates of their
enactment. Thus, it has been held that — [t]he fact that one law is special and the other general
creates a presumption that the special act is to be considered as remaining an exception of the
general act, one as a general law of the land and the other as the law of the particular case.
(Tumabini v. People, G.R. No. 224495, February 19, 2020)
[Note: Verily, jurisprudence has consistently held that in the seizure and confiscation of
seized drugs in the implementation of a search warrant, the Court religiously applies Sec. 21 of
R.A. No. 9165, as amended, including the mandatory presence of the required witnesses during
the physical inventory and taking of photographs of the seized drugs, and the preservation of
the integrity and evidentiary value of the same in applying the saving clause under the IRR.
Notably, these cases never stated that Sec. 8, Rule 126 of the Revised Rules of Criminal
Procedure on the implementation of search warrants prevails over Sec. 21 of R.A. No. 9165. As a
result, Sec. 21 must always be complied with regardless of whether the seizure and confiscation
of the seized drugs are a result of a buy-bust operation or during the implementation of a search
warrant. (Tumabini v. People, G.R. No. 224495, February 19, 2020)]
Cyber Warrants
Section 19 of Republic Act 10175, or the so-called Cybercrime Law, which authorized the
Department of Justice to issue an order to restrict or block access to computer data when the
same is found prima facie to be in violation of the provisions of said law, is unconstitutional.
Computer data may refer to entire programs or lines of code, including malware, as well
as files that contain texts, images, audio, or video recordings. Without having to go into a lengthy
discussion of property rights in the digital space, it is indisputable that computer data, produced
or created by their writers or authors may constitute personal property. Consequently, they are
89
protected from unreasonable searches and seizures, whether while stored in their personal
computers or in the service provider‘s systems. (Disini v. Executive Secretary, G.R. No. 203335,
February 11, 2014)
Here, the Government, in effect, seizes and places the computer data under its control and
disposition without a warrant. The Department of Justice order cannot substitute for judicial
search warrant. (Disini v. Executive Secretary, G.R. No. 203335, February 11, 2014)
The Supreme Court has since promulgated (on July 3, 2018) its Rule on Cybercrime
Warrants (A.M. No. 17-11-03-SC, August 15, 2018), which sets forth the procedure for the
application and grant of warrants and related orders involving the preservation, disclosure,
interception, search, seizure, and/or examination, as well as the custody, and destruction of
computer data, as provided under Republic Act No. 10175, otherwise known as the
―Cybercrime Prevention Act of 2012. (Section 1.2)
Under said Rule, an application for a warrant concerning a violation of Section 4 and/or
Section 5, Chapter II of RA 10175 shall be filed by the law enforcement authorities before any of
the designated cybercrime courts of the province or the city where the offense or any of its
elements has been committed, is being committed, or is about to be committed, or where any
part of the computer system used is situated, or when any of the damage caused to a natural or
juridical person took place. However, the cybercrime courts in Quezon City, the City of Manila,
Makati City, Pasig City, Cebu City, Iloilo City, Davao City and Cagayan de Oro City shall have
the special authority to act on applications and issue warrants which shall be enforceable
nationwide and outside the Philippines.
[Note: For persons or service providers situated outside of the Philippines, service of warrants
and/or other court processes shall be coursed through the Department of Justice-Office of Cybercrime, in
line with all relevant international instruments and/or agreements on the matter. (Section 2.8)]
On the other hand, an application for a warrant under this Rule for violation of Section 6,
Chapter II of RA 10175 (all crimes defined and penalized by the Revised Penal Code, as
amended, and other special laws, if committed by, through, and with the use of ICT
[Information and Communications Technology]) shall be filed by the law enforcement
authorities with the regular or other specialized regional trial courts, as the case may be, within
its territorial jurisdiction in the places above-described. (Section 2.2)
Once a criminal action is instituted, a motion to quash and other incidents that relate to
the warrant shall be heard and resolved by the court that subsequently acquired jurisdiction
over the criminal action. (Section 2.3)
Before issuing a warrant, the judge must personally examine in the form of searching
questions and answers, in writing and under oath, the applicant and the witnesses he may
produce, on facts personally known to them and attach to the record their sworn statements,
together with the judicial affidavits submitted. (Section 2.4)
Any warrant issued under this Rule shall only be effective for the length of time as
determined by the court, which shall not exceed a period of ten days from its issuance. The
90
court issuing the warrant may, upon motion, extend its effectivity based only on justifiable
reasons for a period not exceeding ten days from the expiration of the original period. (Section
2.5)
Warrantless Searches
Neither are the other instances of reasonable warrantless searches and seizures
applicable in the instant case.
Without need of elaborate explanation, the search conducted on accused-appellant Sapla
was not incidental to a lawful arrest. Such requires a lawful arrest that precedes the search,
which is not the case here. Further, the prosecution has not alleged and proven that there was a
seizure of evidence in plain view, that it was a customs search, and that there were exigent and
emergency circumstances that warranted a warrantless search.
Neither can the search conducted on accused-appellant Sapla be considered a valid stop
and frisk search. The Court has explained that stop and frisk searches refer to 'the act of a police
officer to stop a citizen on the street, interrogate him, and pat him for weapon(s) or contraband.'
Thus, the allowable scope of a 'stop and frisk' search is limited to a "protective search of outer
clothing for weapons." The search conducted by the authorities on accused-appellant Sapla
went beyond a protective search of outer clothing for weapons or contraband.
Moreover, while it was clarified by the Court in Malacat v. Court of Appeals that probable
cause is not required to conduct stop and frisk searches, "mere suspicion or a hunch will not
validate a 'stop and frisk.' A genuine reason must exist, in light of the police officer's experience
and surrounding conditions, to warrant the belief that the person detained has weapons
concealed about him." In Comprado, Cogaed, and Veridiano, the Court has held that mere reliance
on information relayed by an informant does not suffice to provide a genuine reason for the
police to conduct a warrantless search and seizure. In other words, in the aforesaid cases, the
Court has held that information from an informant is mere suspicion that does not validate a
stop and frisk search.
Neither can the Court consider the search conducted on accused--appellant Sapla as a
valid consented search.
The CA found that accused-appellant Sapla "consented to the search in this case and that
the illegal drugs - four (4) bricks of marijuana, discovered as a result of consented search [are]
admissible in evidence."
The Court disagrees.
In Tudtud, the Court held that there can only be an effective waiver of rights against
unreasonable searches and seizures if the following requisites are present:
1. It must appear that the rights exist;
2. The person involved had knowledge, actual or constructive, of the existence of such
right; and
91
3. Said person had an actual intention to relinquish the right.
Considering that a warrantless search is in derogation of a constitutional right, the Court
has held that "[t]he fundamental law and jurisprudence require more than the presence of these
circumstances to constitute a valid waiver of the constitutional right against unreasonable
searches and seizures. Courts indulge every reasonable presumption against waiver of
fundamental constitutional rights; acquiescence in the loss of fundamental rights is not to be
presumed. The fact that a person failed to object to a search does not amount to permission
thereto."
Hence, even in cases where the accused voluntarily handed her bag or the chairs
containing marijuana to the arresting officer, the Court has held there was no valid consent to
the search.
Again, in Veridiano, the Court emphasized that the consent to a warrantless search and
seizure must be unequivocal, specific, intelligently given and unattended by duress or coercion.
Mere passive conformity to the warrantless search is only an implied acquiescence which does
not amount to consent and that the presence of a coercive environment negates the cl2im that
the petitioner therein consented to the warrantless search.
The very recent case of Yanson is likewise instructive. As in the instant case, "Sison, [the
therein accused] who was then unarmed, was prodded by the arresting officers to open the
pickup's hood. His beguiling conformity is easily accounted by how he was then surrounded by
police officers who had specifically flagged him and his companions down. He was under the
coercive force of armed law enforcers. His consent, if at all, was clearly vitiated."
In the instant case, the totality of the evidence presented convinces the Court that
accused-appellant Sapla's apparent consent to the search conducted by the police was not
unequivocal, specific, intelligently given, and unattended by duress or coercion. It cannot be
seriously denied that accused-appellant Sapla was subjected to a coercive environment,
considering that he was confronted by several armed police officers in a checkpoint.
In fact, from the testimony of PO3 Mabiasan himself, it becomes readily apparent that
accused-appellant Sapla's alleged voluntary opening of the sack was not unequivocal. When
PO3 Mabiasan asked accused-appellant Sapla to open the sack, the latter clearly hesitated and it
was only "[a]fter a while [that] he voluntarily opened [the sack]."
At most, accused-appellant Sapla's alleged act of opening the blue sack was mere
passive conformity to a warrantless search conducted in a coercive and intimidating
environment. Hence, the Court cannot consider the search conducted as a valid consented
search. (People of the Philippines v. Jerry Sapla y Guerrero a.k.a. Eric Salibad y Mallari, G.R. No.
244045, June 16, 2020)
Reasonable Expectation of Privacy
Indeed, the reasonableness of a person's expectation of privacy must be determined on a
case-to-case basis since it depends on the factual circumstances surrounding the case. Other
92
factors such as customs, physical surroundings and practices of a particular activity may
diminish this expectation. In Fortune Express, Inc. v. Court of Appeals, a common carrier was held
civilly liable for the death of a passenger due to the hostile acts of armed men who boarded and
subsequently seized the bus. The Court held that "simple precautionary measures to protect the
safety of passengers, such as frisking passengers and inspecting their baggages, preferably with
non-intrusive gadgets such as metal detectors, before allowing them on board could have been
employed without violating the passenger's constitutional rights." In Costabella Corp. v. Court
Appeals, a compulsory right of way was found improper for the failure of the owners of the
dominant estate to allege that the passageway they sought to be re-opened was at a point least
prejudicial to the owner of the servient estate. The Court thus explained, ''[c]onsidering that the
petitioner operates a hotel and beach resort in its property, it must undeniably maintain a strict
standard of security within its premises. Otherwise, the convenience, privacy, and safety of its
clients and patrons would be compromised." Similarly, shopping malls install metal detectors
and body scanners, and require bag inspection as a requisite for entry. Needless to say, any
security lapse on the part of the mall owner can compromise public safety. (Saluday v. People,
G.R. No. 215305, April 3, 2018)
[Note: Concededly, a bus, a hotel and beach resort, and a shopping mall are all private
property whose owners have every right to exclude anyone from entering. At the same time,
however, because these private premises are accessible to the public, the State, much like the
owner, can impose non-intrusive security measures and filter those going in. The only
difference in the imposition of security measures by an owner and the State is the former
emanates from the attributes of ownership under Article 429 of the Civil Code, while the latter
stems from the exercise of police power for the promotion of public safety. Necessarily, a
person's expectation of privacy is diminished whenever he or she enters private premises that
are accessible to the public. (Saluday v. People, G.R. No. 215305, April 3, 2018)]
[Note: In view of the foregoing, the bus inspection conducted by Task Force Davao at a
military checkpoint constitutes a reasonable search. Bus No. 66 of Davao Metro Shuttle was a
vehicle of public transportation where passengers have a reduced expectation of privacy.
Further, SCAA Buco merely lifted petitioner's bag. This visual and minimally intrusive
inspection was even less than the standard x-ray and physical inspections done at the airport
and seaport terminals where passengers may further be required to open their bags and
luggages. Considering the reasonableness of the bus search, Section 2, Article III of the
Constitution finds no application, thereby precluding the necessity for a warrant. (Saluday v.
People, G.R. No. 215305, April 3, 2018)]
[Note: Similarly, in this case, petitioner consented to the baggage inspection done by SCAA Buco.
When SCAA Buco asked if he could open petitioner's bag, petitioner answered ''yes, just open it‖ based
on petitioner's own testimony. This is clear consent by petitioner to the search of the contents of his bag.
(Saluday v. People, G.R. No. 215305, April 3, 2018)]
[Note: … in People v. Johnson, the Court declared airport searches as outside the protection of the
search and seizure clause due to the lack of an expectation of privacy that society will regard as
reasonable… in Dela Cruz v. People, the Court described seaport searches as reasonable searches on the
ground that the safety of the traveling public overrides a person's right to privacy… in People v. Breis, the
Court also justified a bus search owing to the reduced expectation of privacy of the riding
public…(Saluday v. People, G.R. No. 215305, April 3, 2018)]
93
[Note: To emphasize, a reasonable search, on the one hand, and a warrantless search, on the other,
are mutually exclusive. While both State intrusions are valid even without a warrant, the underlying
reasons for the absence of a warrant are different. A reasonable search arises from a reduced expectation
of privacy, for which reason Section 2, Article III of the Constitution finds no application. Examples
include searches done at airports, seaports, bus terminals, malls, and similar public places. In contrast, a
warrantless search is presumably an "unreasonable search," but for reasons of practicality, a search
warrant can be dispensed with. Examples include search incidental to a lawful arrest, search of evidence
in plain view, consented search, and extensive search of a private moving vehicle. (Saluday v. People, G.R.
No. 215305, April 3, 2018)]
Incidental to a Lawful Arrest
One of the recognized exceptions to the need [of] a warrant before a search may be
[e]ffected is a search incidental to a lawful arrest. In this instance, the law requires that there
first be a lawful arrest before a search can be made - the process cannot be reversed. (Reyes v.
People, G.R. No. 229380, June 6, 2018)
[Note: In warrantless arrests made pursuant to Section 5 (a), Rule 113, two (2) elements must
concur, namely: (a) the person to be arrested must execute an overt act indicating that he has just
committed, is actually committing, or is attempting to commit a crime; and (b) such overt act is done in
the presence or within the view of the arresting officer. On the other hand, Section 5 (b), Rule 113 requires
for its application that at the time of the arrest, an offense had in fact just been committed and the
arresting officer had personal knowledge of facts indicating that the accused had committed it.]
[Note: … the Court finds that no lawful arrest was made on Reyes. POI Monteras himself admitted
that Reyes passed by them without acting suspiciously or doing anything wrong, except that she smelled
of liquor. As no other overt act could be properly attributed to Reyes as to rouse suspicion in the mind of
PO1 Monteras that she had just committed, was committing, or was about to commit a crime, the arrest is
bereft of any legal basis. As case law demonstrates, the act of walking while reeking of liquor per se
cannot be considered a criminal act. (Reyes v. People, G.R. No. 229380, June 6, 2018)]
Consented Searches
In addition, the Court notes the inconsistencies in the claim of the Office of the Solicitor
General (OSG) that Reyes consented to the search when she voluntarily showed the sachet of
shabu to the police officers. In their Comment, the OSG stated that at the time of arrest, Reyes
was so intoxicated that she "simply let her senses down" and showed the shabu to PO1
Monteras; but later, in the same Comment, the OSG argued that Reyes was actually "in her right
senses when she reminded the police officers" that they were not allowed to frisk a woman.
These material inconsistencies clearly render suspect the search conducted on Reyes's person
and likewise, destroy the credibility of the police officers who testified against Reyes. In order to
deem as valid a consensual search, it is required that the police authorities expressly ask, and in
no uncertain terms, obtain the consent of the accused to be searched and the consent thereof
established by clear and positive proof, which were not shown in this case. (Reyes v. People, G.R.
No. 229380, June 6, 2018)
[Note: Doubtless, the constitutional immunity against unreasonable searches and seizures is a
personal right, which may be waived. However, to be valid, the consent must be voluntary such that it is
94
specific, and intelligently given, uncontaminated by any duress or coercion. Relevant to this
determination of voluntariness are the following characteristics of the person giving consent and the
environment in which consent is given: (a) the age of the consenting party; (b) whether he or she was in a
public or secluded location; (c) whether he or she objected to the search or passively looked on; (d) his or
her education and intelligence; (e) the presence of coercive police procedures; (f) the belief that no
incriminating evidence will be found; (g) the nature of the police questioning; (h) the environment in
which the questioning took place; and (i) the possibly vulnerable subjective state of the person
consenting." (Saluday v. People, G.R. No. 215305, April 3, 2018)]
Plain View Doctrine
For the "plain view doctrine" to apply, it is required that the following requisites are
present: (a) the law enforcement officer in search of the evidence has a prior justification for an
intrusion or is in a position from which he can view a particular area; (b) the discovery of
evidence in plain view is inadvertent; and (c) it is immediately apparent to the officer that the
item he observes may be evidence of a crime, contraband or otherwise subject to seizure. xxx.
The first requisite of the "plain view doctrine" is present in this case because the seizing officer,
P/Insp. Macadangdang, has a prior justification for an intrusion into the premises of the Felix
Gumpal Compound, for he had to conduct the search pursuant to a valid warrant. However,
the second and third requisites are absent, as there is nothing in the records to prove that the
other items not particularly described in the search warrant were open to eye and hand, and
that their discovery was unintentional. (Dimal and Castillo v. People, G.R. No. 216922, April 18,
2018)
[Note: With respect to the items under Return on the Search Warrant indicated as "articles
recovered/seized in plain view during the conduct of the search," it is well settled that objects falling in
plain view of an officer who has a right to be in a position to have that view are subject to seizure even
without a search warrant and may be introduced in evidence. (Dimal and Castillo v. People, G.R. No.
216922, April 18, 2018)]
It is clear from Salucana's testimony that he knew of Acosta's illegal activities even prior
to the mauling incident. In fact, it may be reasonably inferred that the mauling incident had
something to do with Acosta's planting of marijuana. It is also clear that Salucana apprised the
police officers of the illegal planting and cultivation of the marijuana plants when he reported
the mauling incident. Thus, when the police officers proceeded to Acosta's abode, they were
already alerted to the fact that there could possibly be marijuana plants in the area. This
belies the argument that the discovery of the plants was inadvertent. In People v. Valdez, the
Court held that the "plain view" doctrine cannot apply if the officers are actually "searching" for
evidence against the accused, to wit:
Note further that the police team was dispatched to appellant's kaingin precisely to search for and
uproot the prohibited flora. The seizure of evidence in "plain view" applies only where the police officer is
not searching for evidence against the accused, but inadvertently comes across an incriminating object.
Clearly, their discovery of the cannabis plants was not inadvertent. We also note the testimony of SPO2
Tipay that upon arriving at the area, they first had to "look around the area" before they could spot the
illegal plants. Patently, the seized marijuana plants were not "immediately apparent" and a "further
search" was needed. In sum, the marijuana plants in question were not in "plain view" or "open to eye and
hand." The "plain view" doctrine, thus, cannot be made to apply.
95
Verily, it could not be gainsaid that the discovery was inadvertent when the police
officers already knew that there could be marijuana plants in the area. Armed with such
knowledge, they would naturally be more circumspect in their observations. In effect, they
proceeded to Acosta's abode, not only to arrest him for the mauling incident, but also to verify
Salucana's report that Acosta was illegally planting marijuana. Thus, the second requisite for
the "plain view" doctrine is absent. Considering that the "plain view" doctrine is inapplicable to
the present case, the seized marijuana plants are inadmissible in evidence against Acosta for
being fruits of the poisonous tree. (People v. Acosta, G.R. No. 238865, January 28, 2019)
Mayor Pilapil‘s seizure of the subject explosives is illegal and cannot be justified under
the plain view doctrine. The warrantless ocular inspection of the mining site operated by BCMC
and Prime Rock that preceded such seizure, and which allowed Mayor Pilapil and his team of
police officers and barangay officials to catch a view of the subject explosives, finds no authority
under any provision of any law. In addition, established circumstances suggest that the
incriminating nature of the subject explosives could not have been immediately apparent to
Mayor Pilapil and his inspection team. The subject explosives were thus seized in violation of
the constitutional proscription against unreasonable searches and seizures. As such, they were
correctly regarded by the CA as ―fruits of a poisonous tree‖ subject to the exclusionary principle.
Fittingly, they cannot be considered as valid bases of a finding of probable cause to arrest and
detain an accused for trial. (Delfin R. Pilapil, Jr. Vs. Lydia Y. Cu/People of the Philippines Vs. Lydia
Y. Cu, G.R. No. 228608/G.R. No. 228589, August 27, 2020)
Stop and Frisk Searches
We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a
"limited protective search of outer clothing for weapons," as laid down in Terry, thus: We
merely hold today that where a police officer observes unusual conduct which leads him
reasonably to conclude in light of his experience that criminal activity may be afoot and that the
persons with whom he is dealing may be armed and presently dangerous, where in the course
of investigating this behavior he identifies himself as a policeman and makes reasonable
inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable
fear for his own or others' safety, he is entitled [to] the protection of himself and others in the
area to conduct a carefully limited search of the outer clothing of such persons in an attempt to
discover weapons which might be used to assault him. Such a search is a reasonable search
under the Fourth Amendment.
Other notable points of Terry are that while probable cause is not required to conduct a
"stop and frisk," it nevertheless holds that mere suspicion or a hunch will not validate a "stop
and frisk." A genuine reason must exist, in light of the police officer's experience and
surrounding conditions, to warrant the belief that the person detained has weapons concealed
about him. Finally, a "stop-and-frisk" serves a two-fold interest: (1) the general interest of
effective crime prevention and detection, which underlies the recognition that a police officer
may, under appropriate circumstances and in an appropriate manner, approach a person for
purposes of investigating possible criminal behavior even without probable cause; and (2) the
more pressing interest of safety and self-preservation which permit the police officer to take
steps to assure himself that the person with whom he deals is not armed with a deadly weapon
96
that could unexpectedly and fatally be used against the police officer. (Malacat v. Court of
Appeals, 347 Phil. 462 [1997], cited in People v. Comprado, G.R. No. 213225, April 4, 2018)
[Note: A valid stop-and-frisk was illustrated in the cases of Posadas v. CA (Posadas) (266 Phil. 306
[1990]), Manalili v. CA (Manalili) (345 Phil. 632 [1997]), and People v. Solayao (Solayao) (330 Phil. 811 [1996]).
In Posadas, two policemen were conducting a surveillance within the premises of the Rizal
Memorial Colleges when they spotted the accused carrying a buri bag and acting suspiciously. They
approached the accused and identified themselves as police officers. The accused attempted to flee but
his attempt to get away was thwarted by the policemen who then checked the buri bag wherein they
found guns, ammunition, and a grenade.
In Manalili, police officers were patrolling the Caloocan City cemetery when they chanced upon a
man who had reddish eyes and was walking in a swaying manner. When this person tried to avoid the
policemen, the latter approached him and introduced themselves as police officers. The policemen then
asked what he was holding in his hands, but he tried to resist.
In Solayao, police operatives were carrying out an intelligence patrol to verify reports on the
presence of armed persons roaming around the barangays of Caibiran, Biliran. Later on, they met the
group of accused-appellant. The police officers became suspicious when they observed that the men were
drunk and that accused-appellant himself was wearing a camouflage uniform or a jungle suit. Upon
seeing the government agents, accused-appellant's companions fled. Thus, the police officers found
justifiable reason to stop and frisk the accused. (People v. Comprado, G.R. No. 213225, April 4, 2018)]
[Note: On the other hand, the Court found no sufficient justification in the stop and frisk
committed by the police in People v. Cogaed (Cogaed) (740 Phil. 212, 220-222 [2014]). In that case, the police
officers received a message from an informant that one Marvin Buya would be transporting marijuana
from Barangay Lun-Oy, San Gabriel, La Union, to the Poblacion of San Gabriel, La Union. A checkpoint
was set up and when a passenger jeepney from Barangay Lun-Oy arrived at the checkpoint, the jeepney
driver disembarked and signaled to the police officers that the two male passengers were carrying
marijuana. SPOl Taracatac approached the two male passengers who were later identified as Victor
Cogaed and Santiago Dayao. SPOl Taracatac asked Cogaed and Dayao what their bags contained.
Cogaed and Dayao told SPO1 Taracatac that they did not know since they were transporting the bags as a
favor for their barrio mate named Marvin. After this exchange, Cogaed opened the blue bag, revealing
three bricks of what looked like marijuana. The Court, in that case, invalidated the search and seizure
ruling that there were no suspicious circumstances that preceded the arrest. (People v. Comprado, G.R. No.
213225, April 4, 2018)]
In the case at bar, accused-appellant was just a passenger carrying his bag. There is
nothing suspicious much less criminal in said act. Moreover, such circumstance, by itself, could
not have led the arresting officers to believe that accused-appellant was in possession of
marijuana. (People v. Comprado, G.R. No. 213225, April 4, 2018)
In Sanchez v. People, a stop and frisk was defined and elucidated, thus:
xxx as the act of a police officer to stop a citizen on the street, interrogate him, and pat
him for weapon(s) or contraband. The police officer should properly introduce himself
and make initial inquiries, approach and restrain a person who manifests unusual and
suspicious conduct, in other to check the latter's outer clothing for possibly concealed
weapons. The apprehending police officer must have a genuine reason, in accordance
97
with the police officer's experience and the surrounding conditions, to warrant the belief
that the person to be held has weapons (or contraband) concealed about him. It should
therefore be emphasized that a search and seizure should precede the arrest for this
principle to apply.
In the case under review, sufficient facts engendered in the minds of the police officers
that Jepez and Ramos, Jr. were in the act of committing a crime. Consider the following
instances: the police officers were on a mission to entrap Cartina who was verified to be
engaged in selling illegal drugs; Jepez and Ramos, Jr. were with Cartina when the officers saw
the latter at the target area; when the poseur-buyer introduced himself as a MAD AC operative,
the duo immediately fled from the scene; and when they were subdued, they were searched
and each was found in possession of a plastic sachet containing suspected shabu. Indubitably,
Jepez and Ramos, Jr. were then illegally committing the crime of possession of dangerous drugs
in the presence of the police officers. The seized items were therefore admissible in evidence.
(People v. Cartina, G.R. No. 226152, March 13, 2019)
[Note: A stop-and-frisk search is defined as "the act of a police officer to stop a citizen on the
street, interrogate him, and pat him for weapon(s) or contraband." Searches under stop-and-frisk are
limited to the protective search of outer clothing for weapons. For purposes of searching a person's
clothing for concealed weapons, the police officer is required to introduce himself properly, make initial
inquiries, approach and then restrain the person manifesting unusual and suspicious conduct.
In order to be considered valid, a stop and frisk search must be premised on the manifest overt
acts of an accused, which give law enforcers a "genuine reason" to conduct the search. Jurisprudence has
refined the standard to less than probable cause, but more than mere suspicion. The search cannot be
based on a suspicion or a hunch. Their suspicion is formed on the basis of the law enforcers' prior
experience with criminals and their behavior, as well as the surrounding circumstances of the case.
(Porteria v. People, G.R. No. 233777, March 20, 2019)]
In direct contrast to warrantless searches incidental to a lawful arrest, stop and frisk
searches are conducted to prevent crime. Such operations are necessary for law enforcement, as
underscored in People v. Cogaed. Yet, in that same case, this Court warned that this necessity
must be balanced with one's right to privacy:
"Stop and frisk" searches (sometimes referred to as Terry searches) are necessary for law
enforcement. That is, law enforcers should be given the legal arsenal to prevent the commission
of offenses. However, this should be balanced with the need to protect the privacy of citizens in
accordance with Article III, Section 2 of the Constitution.
The balance lies in the concept of "suspiciousness" present in the situation where the
police officer finds himself or herself in. This may be undoubtedly based on the experience of the
police officer. Experienced police officers have personal experience dealing with criminals and
criminal behavior. Hence, they should have the ability to discern — based on facts that they
themselves observe — whether an individual is acting in a suspicious manner. Clearly, a basic
criterion would be that the police officer, with his or her personal knowledge, must observe the
facts leading to the suspicion of an illicit act.
98
Moving Vehicles
A search of a moving vehicle may either be a mere routine inspection or an extensive
search. The search in a routine inspection is limited to the following instances: (1) where the
officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair
grounds; (2) simply looks into a vehicle; (3) flashes a light therein without opening the car's
doors; (4) where the occupants are not subjected to a physical or body search; (5) where the
inspection of the vehicles is limited to a visual search or visual inspection; and (6) where the
routine check is conducted in a fixed area.
On the other hand, an extensive search of a moving vehicle is only permissible when
there is probable cause. When a vehicle is stopped and subjected to an extensive search, such a
warrantless search has been held to be valid only as long as the officers conducting the search
have reasonable or probable cause to believe before the search that they will find the
instrumentality or evidence pertaining to a crime, in the vehicle to be searched. (Macad v. People,
G.R. No. 227366, August 1, 2018)
In the instant case, records established that accused-appellants were found in possession
of six (6) sachets containing shabu. It cannot be denied that they used a motor vehicle to
transport the said illegal drugs from one place to another. As stated earlier, transportation
means to carry or convey from one place to another, the fact alone that the accused-appellants
were found in possession of the illegal drugs while traversing the South National Highway is
sufficient to justify their conviction. (People v. Amago and Vendiola, G.R. No. 227739, January 15,
2020)
In Comprado, a confidential informant (CI) sent a text message to the authorities as
regards an alleged courier of marijuana who had in his possession a backpack containing
marijuana and would be traveling from Bukidnon to Cagayan de Oro City. The CI eventually
called the authorities and informed them that the alleged drug courier had boarded a bus with
body number 2646 and plate number KVP 988 bound for Cagayan de Oro City. The CI added
that the man would be carrying a backpack in black and violet colors with the marking "Lowe
Alpine." With this information, the police officers put up a checkpoint, just as what the
authorities did in the instant case. Afterwards, upon seeing the bus bearing the said body and
plate numbers approaching the checkpoint, again similar to the instant case, the said vehicle
was flagged down. The police officers boarded the bus and saw a man matching the description
given to them by the CI. The man was seated at the back of the bus with a backpack placed on
his lap. The man was asked to open the bag. When the accused agreed to do so, the police
officers saw a transparent cellophane containing dried marijuana leaves.
In Comprado, the Court held that the search conducted "could not be classified as a
search of a moving vehicle. In this particular type of search, the vehicle is the target and not a
specific person." The Court added that "in search of a moving vehicle, the vehicle was
intentionally used as a means to transport illegal items. It is worthy to note that the information
relayed to the police officers was that a passenger of that particular bus was carrying marijuana
such that when the police officers boarded the bus, they searched the bag of the person
matching the description given by their informant and not the cargo or contents of the said
bus."
99
Applying the foregoing to the instant case, it cannot be seriously disputed that the target
of the search conducted was not the passenger jeepney boarded by accused-appellant Sapla nor
the cargo or contents of the said vehicle. The target of the search was the person who matched
the description given by the person who called the RPSB Hotline, i.e., the person wearing a
collared white shirt with green stripes, red ball cap, and carrying a blue sack.
As explained in Comprado, "to extend to such breadth the scope of searches on moving
vehicles would open the floodgates to unbridled warrantless searches which can be conducted
by the mere expedient of waiting for the target person to ride a motor vehicle, setting up a
checkpoint along the route of that vehicle, and then stopping such vehicle when it arrives at the
checkpoint in order to search the target person."
Therefore, the search conducted in the instant case cannot be characterized as a search of
a moving vehicle. (People of the Philippines v. Jerry Sapla y Guerrero a.k.a. Eric Salibad y Mallari,
G.R. No. 244045, June 16, 2020, J. Caguioa)
[Note: Further, in Saluday, the Court laid down the following conditions in allowing a reasonable
search of a bus while in transit: (1) the manner of the search must be least intrusive; (2) the search must
not be discriminatory; (3) as to the purpose of the search, it must be confined to ensuring public safety;
and (4) the courts must be convinced that precautionary measures were in place to ensure that no
evidence was planted against the accused. (People of the Philippines v. Jerry Sapla y Guerrero a.k.a. Eric
Salibad y Mallari, G.R. No. 244045, June 16, 2020)]
Checkpoints
However, in order for the search of vehicles in a checkpoint to be non--violative of an
individual's right against unreasonable searches, the search must be limited to the following: (a)
where the officer merely draws aside the curtain of a vacant vehicle which is parked on the
public fair grounds; (b) where the officer simply looks into a vehicle; (c) where the officer
flashes a light therein without opening the car's doors; (d) where the occupants are not
subjected to a physical or body search; (e) where the inspection of the vehicles is limited to a
visual search or visual inspection; and (f) where the routine check is conducted in a fixed area.
Routine inspections do not give the authorities carte blanche discretion to conduct
intrusive warrantless searches in the absence of probable cause. When a vehicle is stopped and
subjected to an extensive search, as opposed to a mere routine inspection, "such a warrantless
search has been held to be valid only as long as the officers conducting the search have
reasonable or probable cause to believe before the search that they will find the instrumentality
or evidence pertaining to a crime, in the vehicle to be searched."
Simply stated, a more extensive and intrusive search that goes beyond a mere visual
search of the vehicle necessitates probable cause on the part of the apprehending officers.
(People of the Philippines v. Jerry Sapla y Guerrero a.k.a. Eric Salibad y Mallari, G.R. No. 244045, June
16, 2020)
100
Waiver
As to the legality of his warrantless arrest, appellant is already estopped from questioning
such because it was never raised prior to his having entered a plea of not guilty. Moreover, the
rule is that an accused is estopped from assailing the legality of his arrest if he failed to move to
quash the information against him before his arraignment. Any objection involving the arrest or
the procedure in the acquisition by the court of jurisdiction over the person of an accused must
be made before he enters his plea; otherwise, the objection is deemed waived. Even in the
instances not allowed by law, a warrantless arrest is not a jurisdictional defect, and objection
thereto is waived where the person arrested submits to arraignment without objection. The
subsequent filing of the charges and the issuance of the corresponding warrant of arrest against
a person illegally detained will cure the defect of that detention. (People v. Fernandez, G.R. No.
226400, January 24, 2018)
The assertion of Santos has no merit considering that he did not question the admissibility
of the seized items as evidence against him during the trial of these cases. It was only when he
appealed the decision of the RTC before the CA that he raised the issue as to the admissibility of
the seized items. Well-entrenched in our jurisprudence is that no question will be entertained on
appeal unless it has been raised in the lower court. (People v. Santos, G.R. No. 223142, January 17,
2018)
In this case, the only evidence that Ogayon waived his constitutional right was his failure
to make a timely motion during the trial to quash the warrant and to suppress the presentation
of the seized items as evidence. This failure alone, to our mind, is not a sufficient indication that
Ogayon clearly, categorically, knowingly, and intelligently made a waiver. He cannot
reasonably be expected to know the warrant‘s defect for lack of data in the records suggesting
that defect existed. It would thus be unfair to construe Ogayon‘s failure to object as a waiver of
his constitutional right. In People v. Bodoso, the Court noted that ―[i]n criminal cases where life,
liberty and property are all at stake... The standard of waiver requires that it ‗not only must be
voluntary, but must be knowing, intelligent, and done with sufficient awareness of the relevant
circumstances and likely consequences.‘‖ (Ogayon v. People, G.R. No. 188794, September 2, 2015)
We reiterate that the requirement to raise objections against search warrants during trial is
a procedural rule established by jurisprudence. Compliance or noncompliance with this
requirement cannot in any way diminish the constitutional guarantee that a search warrant
should be issued upon a finding of probable cause. Ogayon‘s failure to make a timely objection
cannot serve to cure the inherent defect of the warrant. To uphold the validity of the void
warrant would be to disregard one of the most fundamental rights guaranteed in our
Constitution. (Ogayon v. People, G.R. No. 188794, September 2, 2015)
Like in Ogayon, We rule that Dabon's failure to file a motion to suppress the evidence
obtained against him cannot be considered as a sufficient indication that he clearly,
categorically, knowingly, and intelligently made a waiver. This is in consonance with Our
ruling in People v. Bodoso where We underlined that in criminal cases where life, liberty and
property are all at stake, "[t]he standard of waiver requires that it not only must be voluntary,
but must be knowing, intelligent, and done with sufficient awareness of the relevant
circumstances and likely consequences." After all, he raised the objection in his Omnibus
101
Motion for Reconsideration before the trial court. (Dabon v. People, G.R. No. 208775, January 22,
2018)
Admissibility
To recall, in the drugs cases, the finding of unreasonableness of search and seizure of the
drugs was mainly based on the failure of PO1 Sanoy's testimony to establish the legitimacy of
the buy-bust operation against Trinidad as said testimony was found to be highly doubtful and
incredible. This circumstance similarly obtains here as in fact, the testimonies of both PO1
Nidoy and PO1 Sanoy in this case essentially just mirror on all material points the latter's
implausible narration in the drugs cases. In view of the foregoing, the Court concludes that the
subject firearms and ammunition are also inadmissible in evidence for being recovered from the
same unreasonable search and seizure as in the drugs cases. Since the confiscated firearms and
ammunition are the very corpus delicti of the crime charged in this case, Trinidad's acquittal is in
order. (Trinidad v. People, G.R. No. 239957, February 18, 2019, Perlas-Bernabe)
III. COMPOSITION AND POWERS OF THE GOVERNMENT ORGANS
IX. STRUCTURE OF GOVERNMENT (COMPOSITION, FUNCTIONS,
POWERS AND PRIVILEGES, SEPARATION OF POWERS, AND SYSTEMS OF
CHECKS AND BALANCES)
Legislative Department
Composition
Article VI
Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist
of a Senate and a House of Representatives, except to the extent reserved to the people by the
provision on initiative and referendum.
Section 2. The Senate shall be composed of twenty-four Senators who shall be elected at large by the
qualified voters of the Philippines, as may be provided by law.
Section 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty
members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned
among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their
respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as
provided by law, shall be elected through a party-list system of registered national, regional, and
sectoral parties or organizations.
(2) The party-list representatives shall constitute twenty per centum of the total number of
representatives including those under the party list. For three consecutive terms after the ratification
of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as
provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural
102
communities, women, youth, and such other sectors as may be provided by law, except the religious
sector.
(3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent
territory. Each city with a population of at least two hundred fifty thousand, or each province, shall
have at least one representative.
Powers
Legislative power is the power of lawmaking, the framing and enactment of laws. It
includes the powers of appropriation, taxation, expropriation.
Legislative power is no longer exclusive to the Congress as the people are now, under
Section 32, allowed, through initiative and referendum, to directly propose and enact laws or approve
or reject any act or law or part thereof passed by the Congress or local legislative body. The procedure
for initiative and referendum is now prescribed in Republic Act No. 6735.
Legislative power is the authority, under the Constitution, to make laws, and to alter
and repeal them. (Review Center Association of the Philippines v. Ermita, 583 SCRA 428, citing
Kilusang Mayo Uno v. Director-General, National Economic Development Authority, 487 SCRA 623)
[Note: A bill is, of course, vastly different from a joint resolution. First, a bill to be approved by
Congress must pass three (3) readings on separate days. There can be no deviation from this requirement,
unless the President certifies the bill as urgent. In contrast, Congress can approve a joint resolution in one,
two or three readings, on the same day or on separate days, depending on the rules of procedure that the
Senate or the House may, at their sole discretion, adopt.
Second, the Constitution requires that before a bill is approved, printed copies of the bill in its
final form must be distributed to Members of the Senate and House three days before its passage. There
can be no deviation from this requirement, unless the President certifies the bill as urgent. In contrast, a
joint resolution can be approved on the same day, or several days after, the final printed copies are
distributed to Members of the Senate and the House, depending on the rules of procedure that the Senate
or the House may, at their sole discretion, adopt.
Third, a bill approved by Congress must be presented to the President for his signature or
veto. There can be no deviation from this. In contrast, a joint resolution approved by Congress does not
require the President's signature or veto, unless the Senate, or the House, in their respective rules of
procedure, at their sole discretion, requires such presentation to the President.
Fourth, upon the last reading of a bill, no amendment is allowed, and voting on the bill shall
immediately be taken. There can be no deviation from this requirement. In contrast, there is no such
requirement in approving a joint resolution, unless the Senate and the House, at their sole discretion,
adopt such requirement.
Fifth, the procedure in enacting a bill into law is permanently fixed as prescribed by the
Constitution and cannot be amended by any act of Congress. In contrast, the procedure for passing a joint
resolution is adopted separately by the Senate and the House, and can be changed at any time by the
Senate or the House, respectively. (Ang Nars Party-List v. Executive Secretary, G.R. No. 215746, October 8,
2019)]
103
Section 23. xxx.
(2) In times of war or other national emergency, the Congress may, by law, authorize the
President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers
necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution
of the Congress, such powers shall cease upon the next adjournment thereof.
[Note: The resolution contemplated in the second sentence would have the effect of repealing the
emergency law earlier provided for by the Congress under the first sentence.]
The Congress also exercises non-legislative powers:
Article VI
Section 18. There shall be a Commission on Appointments consisting of the President of the Senate, as
ex officio Chairman, twelve Senators, and twelve Members of the House of Representatives, elected by
each House on the basis of proportional representation from the political parties and parties or
organizations registered under the party-list system represented therein. The chairman of the
Commission shall not vote, except in case of a tie. The Commission shall act on all appointments
submitted to it within thirty session days of the Congress from their submission. The Commission
shall rule by a majority vote of all the Members.
[Note: Section 16. The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and
consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in
rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or
boards.
The President shall have the power to make appointments during the recess of the Congress,
whether voluntary or compulsory, but such appointments shall be effective only until disapproved by the
Commission on Appointments or until the next adjournment of the Congress. (Article VII)]
Confirmation is required only for the officers mentioned in the first sentence of Section
16, i.e., (1) heads of the executive departments, (2) ambassadors, other public ministers and consuls, or
(3) officers of the armed forces from the rank of colonel or naval captain, and (4) other officers whose
appointments are vested in him in this Constitution. (Sarmiento and Arcilla v. Mison, 156 SCRA 549)
The Commissioner of Human Rights (Bautista v. Salonga, 172 SCRA 169), the
commissioners of the National Labor Relations Commission (Calderon v. Carale, 208 SCRA 254),
Heads of Bureaus (Sarmiento v. Mison, 156 SCRA 549), members of the Judiciary and the
Ombudsman and his Deputies, and the Vice-President, if appointed to a cabinet position, do
not require confirmation.
Constitutional Commissioners and the regular members of the Judicial and Bar Council
require confirmation.
104
[Note: Now that the Philippine Coast Guard is under the DOTC and no longer part of the
Philippine Navy or the Armed Forces of the Philippines, the promotions and appointments of
respondent officers of the PCG, or any PCG officer from the rank of captain and higher for that matter,
do not require confirmation by the CA. (Soriano III v. Lista, G.R. No. 153881, 24 March 2003)]
[Note: The Philippine Coast Guard is a distinct agency. Its uniformed personnel ought not to be
treated in the same manner as other civil servants. The issue in Lista was the legality of the PCG officers‘
appointments by the President in the absence of confirmation by the Commission on Appointments. The
case did not tackle discipline and order among PCG uniformed personnel. As aptly observed by the
OSG, nowhere in the said decision did the Court rule that PCG officers should be covered by civil service
rules. (Caballero v. Philippine Coast Guard, G.R. No. 174312, September 22, 2008)]
[Note: The distinctions between the regular and the ad interim appointments are the following:
(1) The regular appointment is made during the legislative session; the ad interim
appointment is made during the recess.
(2) The regular appointment is made only after the nomination is confirmed by the
Commission on Appointments; the ad interim appointment is made before such
confirmation.
(3) The regular appointment, once confirmed by the Commission on Appointments,
continues until the end of the term of the appointee; the ad interim appointment shall
cease to be valid if disapproved by the Commission on Appointments or upon the next
adjournment of the Congress. In the latter case, the appointment is deemed ―by-passed‖
through inaction of, and so disapproved impliedly by, the Commission on
Appointments.
The phrase ―until the next adjournment of the Congress” in the second paragraph of Section 16 of
Article VII refers to the termination of the next regular or special session of the Congress. ―Consequently, it
is safe to conclude that the framers of the Constitution in employing merely the word adjournment as a
mode of terminating an appointment made during the recess of Congress had in mind either the regular
or special session, and not simply the regular one as contended by the petitioner.‖ (Guevara v. Inocentes,
G.R. No. L-25577, March 15, 1966, 18 SCRA 379)]
[Note: An ad interim appointment is a permanent appointment because it takes effect immediately
and can no longer be withdrawn by the President once the appointee has qualified into office. The fact
that it is subject to confirmation by the Commission on Appointments does not alter its permanent
character. The Constitution itself makes an ad interim appointment permanent in character by making it
effective until disapproved by the Commission on Appointments or until the next adjournment of
Congress. In fine, we rule that the ad interim appointments extended by the President to Benipayo, Borra
and Tuason, as COMELEC Chairman and Commissioners, respectively, do not constitute temporary or
acting appointments prohibited by Section 1 (2), Article IX-C of the Constitution. (Matibag v. Benipayo,
G.R. No. 149036, April 2, 2002)]
[Note: While we characterized an ad interim appointment in Matibag v. Benipayo "as a permanent
appointment that takes effect immediately and can no longer be withdrawn by the President once the
appointee has qualified into office," we have also positively ruled in that case that "an ad interim
appointment that has lapsed by inaction of the Commission on Appointments does not constitute a term
of office." xxx. An ad interim appointment that has lapsed by inaction of the Commission on
Appointments does not constitute a term of office. The period from the time the ad interim appointment is
made to the time it lapses is neither a fixed term nor an unexpired term. (Fetalino v. Commission on
Elections, G.R. No. 191890, December 4, 2012)]
105
Article VII
Section 4. xxx. The returns of every election for President and Vice-President, duly certified by the
board of canvassers of each province or city, shall be transmitted to the Congress, directed to the
President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall,
not later than thirty days after the day of the election, open all the certificates in the presence of the
Senate and the House of Representatives in joint public session, and the Congress, upon
determination of the authenticity and due execution thereof in the manner provided by law, canvass
the votes.
The person having the highest number of votes shall be proclaimed elected, but in case two or more
shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of
a majority of all the Members of both Houses of the Congress, voting separately.
The Congress shall promulgate its rules for the canvassing of the certificates. xxx.
Section 9. Whenever there is a vacancy in the Office of the Vice-President during the term for which
he was elected, the President shall nominate a Vice-President from among the Members of the Senate
and the House of Representatives who shall assume office upon confirmation by a majority vote of all
the Members of both Houses of the Congress, voting separately.
Section 11. Whenever the President transmits to the President of the Senate and the Speaker of the
House of Representatives his written declaration that he is unable to discharge the powers and duties
of his office, and until he transmits to them a written declaration to the contrary, such powers and
duties shall be discharged by the Vice-President as Acting President.
Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to
the Speaker of the House of Representatives their written declaration that the President is unable to
discharge the powers and duties of his office, the Vice-President shall immediately assume the powers
and duties of the office as Acting President.
Thereafter, when the President transmits to the President of the Senate and to the Speaker of the
House of Representatives his written declaration that no inability exists, he shall reassume the powers
and duties of his office. Meanwhile, should a majority of all the Members of the Cabinet transmit
within five days to the President of the Senate and to the Speaker of the House of Representatives,
their written declaration that the President is unable to discharge the powers and duties of his office,
the Congress shall decide the issue. For that purpose, the Congress shall convene, if it is not in session,
within forty-eight hours, in accordance with its rules and without need of call.
If the Congress, within ten days after receipt of the last written declaration, or, if not in session, within
twelve days after it is required to assemble, determines by a two-thirds vote of both Houses, voting
separately, that the President is unable to discharge the powers and duties of his office, the VicePresident shall act as President; otherwise, the President shall continue exercising the powers and
duties of his office.
Section 18. xxx. Within forty-eight hours from the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus, the President shall submit a report
in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a
majority of all its Members in regular or special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by the President. Upon the initiative of
the President, the Congress may, in the same manner, extend such proclamation or
106
suspension for a period to be determined by the Congress, if the invasion or rebellion shall
persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such proclamation
or suspension, convene in accordance with its rules without need of a call.
[Note: On the other hand, Congress' review mechanism is automatic in the sense that it may be
activated by Congress itself at any time after the proclamation or suspension was made. Thus, the power
to review by the Court and the power to revoke by Congress are not only totally different but likewise
independent from each other although concededly, they have the same trajectory, which is, the
nullification of the presidential proclamation. Needless to say, the power of the Court to review can be
exercised independently from the power of revocation of Congress. (Lagman v. Medialdea, G.R. No.
231658, July 4, 2017)]
[Note: First, the provision specially addresses the situation when the President proclaims martial
law and/or suspends the privilege of the writ of habeas corpus while the Congress is in recess. To ensure
that the Congress will be able to act swiftly on the proclamation and/or suspension, the 1987
Constitution provides that it should convene within twenty-four (24) hours without need for call. It is a
whole different situation when the Congress is still in session as it can readily take up the proclamation
and/or suspension in the course of its regular sessions, as what happened in these cases. Second, the
provision only requires that the Congress convene without call, but it does not explicitly state that the
Congress shall already convene in joint session. In fact, the provision actually states that the Congress
"convene in accordance with its rules," which can only mean the respective rules of each House as there
are no standing rules for joint sessions. And third, it cannot be said herein that the Congress failed to
convene immediately to act on Proclamation No. 216. Both Houses of the Congress promptly took action
on Proclamation No. 216, with the Senate already issuing invitations to executive officials even prior to
receiving President Duterte's Report, except that the two Houses of the Congress acted separately. By
initially undertaking separate actions on President Duterte's Proclamation No. 216 and making their
respective determination of whether to support or revoke said Proclamation, the Senate and the House of
Representatives were only acting in accordance with their own rules of procedure and were not in any
way remiss in their constitutional duty to guard against a baseless or unjustified proclamation of martial
law and/or suspension of the privilege of the writ of habeas corpus by the President. (Padilla v. Congress of
the Philippines, G.R. No. 231671, July 25, 2017)]
Section 19. xxx. He shall also have the power to grant amnesty with the concurrence of a majority of
all the Members of the Congress.
Section 21. 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.
[Note: Concurrence by resolution of the Senate ―transforms‖ the rules, rights and
obligations in treaties or international agreements into law, or as part of the law of the land.]
Article XI
Section 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of
impeachment. xxx.
(6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for
that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on
107
trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be
convicted without the concurrence of two-thirds of all the Members of the Senate.
Article XVII
Section 1. Any amendment to, or revision of, this Constitution may be proposed by:
(1) The Congress, upon a vote of three-fourths of all its Members; or
(2) A constitutional convention. xxx.
Section 3. The Congress may, by a vote of two-thirds of all its Members, call a constitutional
convention, or by a majority vote of all its Members, submit to the electorate the question of
calling such a convention.
Executive Department
Article VII
Section 1. The executive power shall be vested in the President of the Philippines.
Section 17. The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed.
[Note: Executive Privilege - This special privilege of the President, although not expressly
conferred upon him under the Constitution, has been invariably acknowledged as essential to his exercise
of his powers as the Chief Executive, consistent with the principle of separation of powers. (See Almonte v.
Vasquez, 314 Phil. 150, cited in Senate v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA 1)
Executive privilege is generally defined as ―the power of the Government to withhold information from the
public, the courts, and the Congress.‖ (B. Schwartz, Executive Privilege and Congressional Investigatory
Power, 47 Cal. L. Rev. 3, cited in in Senate v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA 1)
Executive Privilege covers all presidential communications. (AKBAYAN v. Aquino, G.R. No. 170516, July 16,
2008)
… the privilege accorded to presidential communications is not absolute, one significant
qualification being that ―the Executive cannot, any more than the other branches of government, invoke a
general confidentiality privilege to shield its officials and employees from investigations by the proper
governmental institutions into possible criminal wrongdoing.‖ This qualification applies whether the
privilege is being invoked in the context of a judicial trial or a congressional investigation conducted in
aid of legislation. (Senate v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA 1)
Executive privilege, which includes(1) conversations and correspondence between the President and the public official covered by this
executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates
Authority, G.R. No. 133250, 9 July 2002);
(2) military, diplomatic and other national security matters which in the interest of national security
should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential
Commission on Good Government, G.R. No. 130716, 9 December 1998);
108
(3) information between inter-government agencies prior to the conclusion of treaties and executive
agreements (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December
1998);
(4) discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good Government,
G.R. No. 130716, 9 December 1998);
(5) and matters affecting national security and public order (Chavez v. Public Estates Authority, G.R.
No. 133250, 9 July 2002),
may be invoked against this legislative power. (Senate v. Ermita, G.R. No. 169777, April 20, 2006, 488
SCRA 1)
… executive officials are not exempt by the mere fact that they are department heads. Only one
executive official may be exempted from this power — the President on whom executive power is vested,
hence, beyond the reach of Congress except through the power of impeachment. A claim of privilege,
being a claim of exemption from an obligation to disclose information, must, therefore, be clearly
asserted, and not merely implied. In light of this highly exceptional nature of the privilege, the Court
finds it essential to limit to the President the power to invoke the privilege. She may of course authorize
the Executive Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must
state that the authority is ―By order of the President,‖ which means that he personally consulted with
her. The privilege being an extraordinary power, it must be wielded only by the highest official in the
executive hierarchy. In other words, the President may not authorize her subordinates to exercise such
power. (Senate v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA 1)
The Executive has a right to withhold documents that might reveal military or state secrets, identity of
government informers in some circumstances, and information related to pending investigations. An
area where the privilege is highly revered is in foreign relations. (Neri v. Senate Committee on Accountability
of Public Officers, March 25, 2008, 549 SCRA 77)
That a type of information is recognized as privileged does not, however, necessarily mean that it
would be considered privileged in all instances. For in determining the validity of a claim of privilege,
the question that must be asked is not only whether the requested information falls within one of the
traditional privileges, but also whether that privilege should be honored in a given procedural setting.
(Senate v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA 1)]
Executive Power is the power to enforce and administer the laws.
[Note: Hence, the duty to faithfully execute the laws of the land is inherent in executive power
and is intimately related to the other executive functions. These functions include the faithful execution of
the law in autonomous regions (Constitution, Article X, Section 16); the right to prosecute crimes; (Ilusorio
v. Ilusorio, 564 Phil. 746 [2007]; Gonzalez v. Hongkong & Shanghai Banking Corp., 562 Phil. 841 [2007]); the
implementation of transportation projects; (Metropolitan Manila Development Authority v. Viron
Transportation Co., Inc., 557 Phil. 121 [2007]); the duty to ensure compliance with treaties, executive
agreements and executive orders; (La Perla Cigar & Cigarette Factory v. Capapas, 139 Phil. 451 [1969]); the
authority to deport undesirable aliens; (In re: R. McCulloch Dick, 3 8 Phil. 211 [1918]); the conferment of
national awards under the President's jurisdiction; (Almario v. Executive Secretary, G.R. No. 189028, 16 July
2013, 701 SCRA 269) and the overall administration and control of the executive department.
(Administrative Code of 1987, Book IV, Sec. 38)]
109
[Note: More important, this mandate is self-executory by virtue of its being inherently executive
in nature. (Concurring Opinion of J. Carpio, Abakada Guro Party List v. Purisima, 584 Phil. 246 [2008])
(Saguisag v. Executive Secretary, G. R. No. 212426, January 12, 2016)]
The President of the Philippines is the Executive of the Government and no other.
(Villena v. Secretary of Interior, 67 Phil. 451) All executive authority is thus vested in him. (Planas
v. Gil, 67 Phil. 62)
The president‘s power of general supervision over local governments could be exercised
by him ―only as may be provided by law.‖ (Lacson v. Roque, 92 Phil. 456; Mondano v. Silvosa, 92
Phil. 456)
The President may call out the armed forces and declare a state of emergency but may
not exercise emergency powers under See Article XII, Section 17, without a law authorizing him
to do so. [“In times of national emergency, when the public interest so requires, the State may, during
the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation
of any privately owned public utility or business affected with public interest.”] (David v Arroyo, G.R.
No. 171396, May 2006, 489 SCRA 161)
[Note: It clarified, however, that the President is granted Ordinance Powers under Chapter 2, Book
III of Executive Order No. 292 (Administrative Code of 1987) and may issue any of the following: .
Executive Orders, which are acts of the President providing for rules of a general or permanent character
in implementation or execution of constitutional or statutory powers shall be promulgated in executive
orders; Administrative Orders, or acts of the President which relate to particular aspects of governmental
operations in pursuance of his duties as administrative head shall be promulgated in administrative
orders; Proclamations, which are acts of the President fixing a date or declaring a status or condition of
public moment or interest, upon the existence of which the operation of a specific law or regulation is
made to depend, shall be promulgated in proclamations which shall have the force of an executive order;
Memorandum Orders, defined as acts of the President on matters of administrative detail or of subordinate
or temporary interest which only concern a particular officer or office of the Government shall be
embodied in memorandum orders; Memorandum Circulars, which refer to acts of the President on matters
relating to internal administration, which the President desires to bring to the attention of all or some of
the departments, agencies, bureaus or offices of the Government, for information or compliance, shall be
embodied in memorandum circulars; and General or Special Orders, which refer to acts and commands of
the President in his capacity as Commander-in-Chief of the Armed Forces of the Philippines shall be
issued as general or special orders. The Court stressed that ―President Arroyo‘s ordinance power is
limited to the foregoing issuances. She cannot issue decrees similar to those issued by Former President
Marcos under PP 1081.‖ (David v. Arroyo, G.R. No. 171396, May 2006, 489 SCRA 161)]
[Note: The President has the power to call the Congress to a special session. (Article VI, Section
23[2]); may, by law, be allowed to exercise emergency powers (Article VI, Section 23[2]) and tariff powers
(Article VI, Section 23[2]); approve bills or exercise veto and partial veto powers (Article VI, Section 27[1])
and [2]); concur with the deputization by the Commission on Elections of law enforcement agencies and
instrumentalities of the Government (Article IX-C, Section 2[4]); and, upon recommendation of the
Commission on Elections, discipline any officer or employee it has deputized for violation or disregard
of, or disobedience to, its directive, order, or decision (Article IX-C, Section 2[8]); enter into agreements
with foreign-owned corporations involving either technical or financial assistance for large-scale
exploration, development, and utilization of minerals, petroleum, and other mineral oils (Article XII,
Section 2, 5th and 6th paragraphs); is the head of the National Economic Development Authority (Article
110
XII, Section 9); and may extend the tour of duty of the Chief of Staff of the Armed Forces of the
Philippines. (Article XVI, Section 5[7])]
Power of Appointment
Section 14. Appointments extended by an Acting President shall remain effective, unless revoked by
the elected President, within ninety days from his assumption or reassumption of office.
Section 15. Two months immediately before the next presidential elections and up to the end of his
term, a President or Acting President shall not make appointments, except temporary appointments to
executive positions when continued vacancies therein will prejudice public service or endanger public
safety.
[Note: Section 15, Article VII does not apply as well to all other appointments in the Judiciary.
There is no question that one of the reasons underlying the adoption of Section 15 as part of Article VII
was to eliminate midnight appointments from being made by an outgoing Chief Executive in the mold of the
appointments dealt with in the leading case of Aytona v. Castillo. Given the background and rationale for
the prohibition in Section 15, Article VII, we have no doubt that the Constitutional Commission confined
the prohibition to appointments made in the Executive Department. The framers did not need to extend
the prohibition to appointments in the Judiciary, because their establishment of the JBC and their
subjecting the nomination and screening of candidates for judicial positions to the unhurried and
deliberate prior process of the JBC ensured that there would no longer be midnight appointments to the
Judiciary. (De Castro v. Judicial and Bar Council, G. R. No. 191002, March 17, 2010)]
Section 16. The President shall nominate and, with the consent of the Commission on Appointments,
appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower
in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or
boards.
The President shall have the power to make appointments during the recess of the Congress, whether
voluntary or compulsory, but such appointments shall be effective only until disapproved by the
Commission on Appointments or until the next adjournment of the Congress.
An appointment can be made only to a vacant office. An appointment cannot be made to
an occupied office. The incumbent must first be legally removed, or his appointment validly
terminated, before one could be validly installed to succeed him. (Velicaria-Garafil v. Office of the
President, G.R. No. 203372, June 16, 2015)
The President may not be compelled to submit acting appointments to the Commission
on Appointments for confirmation. (Pimentel v. Ermita G.R. No. 164978, October 13, 2005)
Since the President‘s authority to appoint OICs emanates from RA No. 10153, it falls
under the third group of officials (those whom the President may be authorized by law to appoint)
that the President can appoint pursuant to Section 16, Article VII of the Constitution. Thus, the
assailed law facially rests on clear constitutional basis. (Datu Michael Abas Kida v. Senate of the
Philippines, G.R. No. 196271, October 18, 2011)
111
The following elements should always concur in the making of a valid (which should be
understood as both complete and effective) appointment: (1) authority to appoint and evidence
of the exercise of the authority; (2) transmittal of the appointment paper and evidence of the
transmittal; (3) a vacant position at the time of appointment; and (4) receipt of the appointment
paper and acceptance of the appointment by the appointee who possesses all the qualifications
and none of the disqualifications. The concurrence of all these elements should always apply,
regardless of when the appointment is made, whether outside, just before, or during the
appointment ban. These steps in the appointment process should always concur and operate as
a single process. There is no valid appointment if the process lacks even one step. And, unlike
the dissent‘s proposal, there is no need to further distinguish between an effective and an
ineffective appointment when an appointment is valid. (Velicaria-Garafil v. Office of the President,
G.R. No. 203372, June 16, 2015)
Furthermore, the JBC, in sorting the qualified nominees into six clusters, one for every
vacancy, could influence the appointment process beyond its constitutional mandate of
recommending qualified nominees to the President. Clustering impinges upon the President's
power of appointment, as well as restricts the chances for appointment of the qualified
nominees, because (1) the President's option for every vacancy is limited to the five to seven
nominees in the cluster; and (2) once the President has appointed from one cluster, then he is
proscribed from considering the other nominees in the same cluster for the other vacancies. The
said limitations are utterly without legal basis and in contravention of the President's
appointing power. xxx. In view of the foregoing, President Aquino validly exercised his
discretionary power to appoint members of the Judiciary when he disregarded the clustering of
nominees into six separate shortlists for the vacancies for the 16th, 17th, 18th, 19th, 20th and 21st
Sandiganbayan Associate Justices.
The ruling of the Court in this case shall similarly apply to the situation wherein there
are closely successive vacancies in a collegiate court, to which the President shall make
appointments on the same occasion, regardless of whether the JBC carried out combined or
separate application process/es for the vacancies. The President is not bound by the clustering
of nominees by the JBC and may consider as one the separate shortlists of nominees
concurrently submitted by the JBC. (Aguinaldo v. Aquino, G.R. No. 224302, November 29, 2016)
Power of Control
Under the doctrine of qualified political agency, department secretaries are alter egos or
assistants of the President and their acts are presumed to be those of the latter unless
disapproved or reprobated by him. Thus, as a rule, an aggrieved party affected by the decision
of a cabinet secretary need not appeal to the OP and may file a petition for certiorari directly in
the Court of Appeals assailing the act of the said secretary. (Manubay v. Garilao, G.R. No.
140717, April 16, 2009)
But the doctrine of qualified political agency could not be extended to the acts of the
Board of Directors of TIDCORP despite some of its members being themselves the appointees of
the President to the Cabinet. xxx. Such Cabinet members sat on the Board of Directors of
TIDCORP ex officio, or by reason of their office or function, not because of their direct
appointment to the Board by the President. Evidently, it was the law (RA 8494, Section 6,
112
amending Section 10 of PD 1080), not the President, that sat them in the Board. (ManalangDemigillo v. Trade and Investment Development Corporation of the Philippines, G.R. No. 168613,
March 5, 2013)
The President's control has been defined to mean ‗the power of an officer to alter or
modify or nullify or set aside what a subordinate officer had done in the performance of his
duties and to the judgment of the former for the latter.‘ In pardoning petitioner and ordering his
reinstatement, the Chief Executive exercised his power of control and set aside the decision of
the Ministry of Transportation and Communications. The clemency nullified the dismissal of
petitioner and relieved him from administrative liability. The separation of the petitioner from
the service being null and void, he is thus entitled to back wages.‖ (Garcia v. Chairman,
Commission on Audit, G.R. No. 75025 September 14, 1993, 226 SCRA 356)
Military Powers
Under the calling-out power, the President may summon the armed forces to aid him in
suppressing lawless violence, invasion and rebellion. This involves ordinary police action.
[Note: There is a distinction between the President‘s authority to declare a ―state of rebellion‖ (in
Sanlakas) and the authority to proclaim a state of national emergency. While President Arroyo‘s authority to
declare a ―state of rebellion‖ emanates from her powers as Chief Executive, the statutory authority cited
in Sanlakas was Section 4, Chapter 2, Book II of the Revised Administrative Code of 1987, which provides:
―SEC. 4. – Proclamations. – Acts of the President fixing a date or declaring a status or condition of public
moment or interest, upon the existence of which the operation of a specific law or regulation is made to
depend, shall be promulgated in proclamations which shall have the force of an executive order.‖
President Arroyo‘s declaration of a ―state of rebellion‖ was merely an act declaring a status or condition
of public moment or interest, a declaration allowed under Section 4 cited above. (David v. Arroyo, G.R.
No. 171396, May 3, 2006, 489 SCRA 161)]
Suspension of the privilege of the writ of habeas corpus does not suspend the writ itself,
but only its privilege. This means when the court receives an application for the writ, it will
issue the writ as a matter of course, i.e., the court will issue an order commanding the
production before the court of the person allegedly detained, at a time and place stated in the
order, and requiring the true cause of his detention to be shown to the court. If the return to the
writ shows that the person in custody was apprehended and detained in areas where the
privilege of the writ has been suspended or for crimes mentioned in the executive proclamation,
the court will suspend further proceedings in the action. (Ex Parte Mulligan, 4 Wall. 131)
One who is lawfully detained, as when he is detained by virtue of a final judgment of
conviction for a criminal offense, may not avail himself of this constitutional remedy. (Adonis v.
Tesoro, G.R. No. 182855, June 5, 2013, 697 SCRA 337)
[Note: A writ of habeas corpus, which is regarded as a "palladium of liberty," is a prerogative writ
which does not issue as a matter of right but in the sound discretion of the court or judge. It is, however, a
writ of right on proper formalities being made by proof. Resort to the writ is not to inquire into the
criminal act of which a complaint is made but unto the right of liberty, notwithstanding the act, and the
immediate purpose to be served is relief from illegal restraint. The primary, if not the only object of the
writ of habeas corpus ad subjuciendum, is to determine the legality of the restraint under which a person is
113
held. (Caballes v. Court of Appeals, G.R. No. 163108, February 23, 2005, 452 SCRA 312, at pp. 324-326)
(Mangila v. Judge Pangilinan, G.R. No. 160739, July 17, 2013, 701 SCRA 355)]
[Note: We are aware that the writ of habeas corpus may also be availed of as a post-conviction
remedy when, as a consequence of a judicial proceeding, any of the following exceptional circumstances
is attendant: 1) there has been a deprivation of a constitutional right resulting in the restraint of a person;
2) the court had no jurisdiction to impose the sentence; or 3) the imposed penalty has been excessive,
thus voiding the sentence as to such excess. Here, petitioner invokes the third circumstance. When the
detention complained of finds its origin in what has been judicially ordained, the range of inquiry in
a habeas corpus proceeding is considerably narrowed. As a high prerogative writ which furnishes an
extraordinary remedy, the writ of habeas corpus may be invoked only under extraordinary
circumstances. Mere invocation that an extraordinary circumstance exists is not enough, as in this case.
(In Re: In the Matter of the Issuance of a Writ of Habeas Corpus of Inmates Raymundo Reyes and Vincent B.
Evangelista, G.R. No. 251954, June 10, 2020)]
The declaration of martial law has no further legal effect than to warn the citizens that
the military powers have been called upon by the executive to assist him in the maintenance of
law and order and that, while the emergency lasts, they must, upon pain of arrest and
punishment, not commit any act which will in any way render difficult the restoration of order
and the enforcement of law. When martial law is declared, no new powers are given to the
executive; no extension of arbitrary authority is recognized; no civil rights of the individuals are
suspended. The relation of the citizens to their State is unchanged. (Aquino v. Enrile, 59 SCRA
183; Willoughby, 2nd ed., Sec. 1056, pp. 1591-92; see David v. Arroyo, G.R. No. 171396, May 3,
2006, 489 SCRA 161)
Indeed, the 1987 Constitution gives the "President, as Commander-in-Chief, a 'sequence'
of ‗graduated power[s]'. From the most to the least benign, these are: the calling out power, the
power to suspend the privilege of the writ of habeas corpus, and the power to declare martial
law." It must be stressed, however, that the graduation refers only to hierarchy based on scope
and effect. It does not in any manner refer to a sequence, arrangement, or order which the
Commander-in-Chief must follow. This so-called "graduation of powers" does not dictate or
restrict the manner by which the President decides which power to choose. (Lagman v.
Medialdea, G.R. No. 231658, July 4, 2017)
In determining the existence of rebellion, the President only needs to convince himself
that there is probable cause or evidence showing that more likely than not a rebellion was
committed or is being committed. To require him to satisfy a higher standard of proof would
restrict the exercise of his emergency powers. (Lagman v. Medialdea, G.R. No. 231658, July 4,
2017)
In reviewing the sufficiency of the factual basis of the proclamation suspension, the
Court considers only the information and data available to the President prior to or at the time
of the declaration; it is not allowed to "undertake an independent investigation beyond the
pleadings." On the other hand, Congress may take into consideration not only data available
prior to, but likewise events supervening the declaration. Unlike the Court which does not look
into the absolute correctness of the factual basis(.) xxx Congress could probe deeper and
further; it can delve into the accuracy of the facts presented before it. (Lagman v. Medialdea, G.R.
No. 231658, July 4, 2017)
114
In addition, the Court's review power is passive; it is only initiated by the filing of a
petition "in an appropriate proceeding" by a citizen. On the other hand, Congress' review
mechanism is automatic in the sense that it may be activated by Congress itself at any time after
the proclamation or suspension was made.
Thus, the power to review by the Court and the power to revoke by Congress are not
only totally different but likewise independent from each other although concededly, they have
the same trajectory, which is, the nullification of the presidential proclamation. Needless to say,
the power of the Court to review can be exercised independently from the power of revocation
of Congress. (Lagman v. Medialdea, G.R. No. 231658, July 4, 2017)
In sum, Proclamation No. 216 did not become functus officio with the cessation of the
Marawi siege. Considering that rebellion persists and that the public safety requires it, there is
sufficient factual basis to extend martial law in Mindanao for the third time. (Lagman v.
Medialdea, G.R. No. 243522, February 19, 2019)
Pardoning Power
Thus, 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. (RisosVidal v. Commission on Elections, G.R. No. 206666, January 21, 2015)
The distinctions between an amnesty and a pardon are –
(1) Amnesty is usually addressed to crimes against the sovereignty of the State,
to political offenses, forgiveness being deemed more expedient for the public
welfare than prosecution and punishment; pardon condones infractions of the
peace of the State.
(2) Amnesty is usually generally addressed to classes or even communities of
persons; pardon is usually addressed to an individual.
(3) In amnesty, there may or may not be distinct acts of acceptance, so that if
other rights are dependent upon it and are asserted, there is affirmative evidence
of acceptance; in pardon, there must be distinct acts of acceptance.
(4) Pardon does not require the concurrence of the Congress; amnesty requires
such concurrence.
(5) Pardon is a private act of the President which must be pleaded and proved
because the courts do not take judicial notice of it; amnesty is a public act of
which the courts take judicial notice.
(6) Pardon looks forward and relives the offender from the consequences of the
offense of which he has been convicted; while amnesty looks backward and
115
abolishes and puts into oblivion the offense itself; it so overlooks and obliterates
the offense with which he is charged that the person released by amnesty stands
before the law precisely as though he had committed no offense. (Burdick v.
United States, 235 U.S. 476)
Constitutional Limitations
Pardon cannot be granted in cases of impeachment. (Article VII, Section 19)
Pardon can be granted only after conviction by final judgment. (Article VII, Section 19)
[Note: In People v. Salle (250 SCRA 581), a conditional pardon extended to the prisoner while his
appeal was still pending before the Supreme Court was held to be invalid but, in view of the special
circumstances of the case, he was given three days to withdraw his appeal to make his conviction final
and the pardon effective.]
He shall also have the power to grant amnesty with the concurrence of a majority
of all the Members of the Congress. (Article VII, Section 19)
No pardon, amnesty, parole, or suspension of sentence for violation of election
laws, rules, and regulations shall be granted by the President without the
favorable recommendation of the Commission. (Article IX-C, Section 5)
Other Limitations
(1) There can be no pardon extended to a person convicted of for legislative
contempt, as this would violate the doctrine of separation of powers, or of civil
contempt since this would involve not the benefit of the State itself but of the
private litigant whose rights have been violated by the contemner.
(2) A pardon cannot also be extended for the purpose of absolving the pardonee
of civil liability, including judicial costs, since, again, the interest that is remitted
does not belong to the State but to the private litigant.
(3) A pardon will also not restore offices forfeited.
[Note: ―xxx pardon does not ipso facto restore a convicted felon to public office necessarily
relinquished or forfeited by reason of the conviction although such pardon undoubtedly restores his
eligibility for appointment to that office.‖ (Monsanto v. Factoran, G.R. No. 78239, February 9, 1989,170
SCRA 190)]
A conditional pardon is one under which the convict is required to comply with certain
requirements.
[Note: Where the pardon is conditional, the offender has the right to reject it since he may feel that
the condition imposed is more onerous than the penalty sought to be remitted.]
116
The condition of the pardon shall be co-extensive with the penalty remitted unless
otherwise indicated. (Infante v. Provincial Warden of Negros Occidental, 92 Phil. 310)
[Note: Hence, if the condition is violated after the expiration of the remitted penalty, there can no
longer be any violation of the conditional pardon.]
Appellant's stand is that a person released on parole cannot be re-arrested and made to
serve the remaining unexpired portion of his sentence under Sec. 64 (i) of the Revised
Administrative Code, if the State prosecutes and has him convicted for violation of conditional
pardon under Art. 159, Revised Penal Code. And since he has been convicted and has served
sentence for violation of conditional pardon under Art. 159 (Crim. Case No. 789), Revised Penal
Code, he now argues that he can no longer be made to serve the rest of his sentence in Crim.
Case No. 671 from which he was paroled.
The power of the Chief Executive under Section 64(i) of the Rev. Administrative Code to
arrest and re-incarcerate any person who violates his parole condition, stands even in the face of
prosecution, conviction and service of sentence for violation of conditional pardon under Art.
159, Rev. Penal Code (Sales v. Director of Prisons, 87 Phil. 492). There is no double jeopardy,
because the sentences refer to different offenses; in this case, to falsification (Crim. Case 671)
and to violation of conditional pardon (Crim. Case 789). Nor is there deprivation of liberty
without due process of law because in both cases he was found guilty and sentenced, after due
process of law. And before full service of said sentences, he is not yet entitled to liberty (People v.
Tan, L-21805, Feb. 25, 1967). (Culanag v. Director of Prisons, G.R. No. L-27206, August 26, 1967, 20
SCRA 1123)
1. The grant of pardon and the determination of the terms and conditions of a conditional
pardon are purely executive acts which are not subject to judicial scrutiny.
2. The determination of the occurrence of a breach of a condition of a pardon, and the
proper consequences of such breach, may be either a purely executive act, not subject to
judicial scrutiny under Section 64 (i) of the Revised Administrative Code; or it may be a
judicial act consisting of trial for and conviction of violation of a conditional pardon
under Article 159 of the Revised Penal Code. Where the President opts to proceed under
Section 64 (i) of the Revised Administrative Code, no judicial pronouncement of guilt of a
subsequent crime is necessary, much less conviction therefor by final judgment of a
court, in order that a convict may be recommended for the violation of his conditional
pardon.
3. Because due process is not semper et unique judicial process, and because the
conditionally pardoned convict had already been accorded judicial due process in his
trial and conviction for the offense for which he was conditionally pardoned, Section 64
(i) of the Revised Administrative Code is not afflicted with a constitutional vice.
(Sumulong v. Gonzales, G.R. No. 76872, July 23, 1987)
Borrowing Power
Section 20. The President may contract or guarantee foreign loans on behalf of the Republic of the
Philippines with the prior concurrence of the Monetary Board, and subject to such limitations as may
be provided by law. The Monetary Board shall, within thirty days from the end of every quarter of the
117
calendar year, submit to the Congress a complete report of its decision on applications for loans to be
contracted or guaranteed by the Government or government-owned and controlled corporations which
would have the effect of increasing the foreign debt, and containing other matters as may be provided
by law.
Foreign loans may only be incurred in accordance with law and the regulation
of the monetary authority. Information on foreign loans obtained or
guaranteed by the Government shall be made available to the public. (Article
XII, Section 21)
Treaty-Making Power
Section 21. 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.
This rule does not imply, though, that the President is given carte blanche to exercise this
discretion. Although the Chief Executive wields the exclusive authority to conduct our foreign
relations, this power must still be exercised within the context and the parameters set by the
Constitution, as well as by existing domestic and international laws. There are constitutional
provisions that restrict or limit the President's prerogative in concluding international
agreements, such as those that involve the following:
a. The policy of freedom from nuclear weapons within Philippine territory.
b. The fixing of tariff rates, import and export quotas, tonnage and wharfage dues, and
other duties or imposts, which must be pursuant to the authority granted by
Congress.
c. The grant of any tax exemption, which must be pursuant to a law concurred in by a
majority of all the Members of Congress.
d. The contracting or guaranteeing, on behalf of the Philippines, of foreign loans that
must be previously concurred in by the Monetary Board.
e. The authorization of the presence of foreign military bases, troops, or facilities in the
country must be in the form of a treaty duly concurred in by the Senate.
f. For agreements that do not fall under paragraph 5, the concurrence of the Senate is
required, should the form of the government chosen be a treaty. (Saguisag v.
Executive Secretary, G. R. No. 212426, January 12, 2016)
[Note: An executive agreement is a ―treaty‖ within the meaning of that word in international law
and constitutes enforceable domestic law. (Nicolas v. Romulo, G.R. No. 175888, February 11, 2009, 578
SCRA 438)]
[Note: Accordingly, in the exercise of its power of judicial review, the Court does not look into
whether an international agreement should be in the form of a treaty or an executive agreement, save in
cases in which the Constitution or a statute requires otherwise. Rather, in view of the vast constitutional
powers and prerogatives granted to the President in the field of foreign affairs, the task of the Court is to
determine whether the international agreement is consistent with the applicable limitations. (Saguisag v.
Executive Secretary, G. R. No. 212426, January 12, 2016)]
An executive agreement cannot be used to amend a duly ratified and existing treaty.
(Adolfo v. CFI of Zambales, G.R. No. L-30650, July 31, 1970, 34 SCRA 166)
118
First, executive agreements must remain traceable to an express or implied authorization
under the Constitution, statutes, or treaties. The absence of these precedents puts the validity
and effectivity of executive agreements under serious question for the main function of the
Executive is to enforce the Constitution and the laws enacted by the Legislature, not to defeat or
interfere in the performance of these rules. In turn, executive agreements cannot create new
international obligations that are not expressly allowed or reasonably implied in the law they
purport to implement.
Second, treaties are, by their very nature, considered superior to executive agreements.
Treaties are products of the acts of the Executive and the Senate unlike executive agreements,
which are solely executive actions. Because of legislative participation through the Senate, a
treaty is regarded as being on the same level as a statute. If there is an irreconcilable conflict, a
later law or treaty takes precedence over one that is prior. An executive agreement is treated
differently. Executive agreements that are inconsistent with either a law or a treaty are
considered ineffective. Both types of international agreement are nevertheless subject to the
supremacy of the Constitution. (Saguisag v. Executive Secretary, G. R. No. 212426, January 12,
2016)
In our jurisdiction, the power to ratify is vested in the President and not, as commonly
believed, in the legislature. The role of the Senate is limited only to giving or withholding its
consent, or concurrence, to the ratification. (Cruz, Isagani, International Law, 1985 Ed., p. 175)
((Bayan v. Zamora, G.R. No. 138570, October 10, 2000, 342 SCRA 449)
All existing treaties or international agreements which have not been ratified
shall not be renewed or extended without the concurrence of at least two-thirds
of all the Members of the Senate. (Article XVIII, Section 4)
After the expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States of America concerning Military Bases, foreign
military bases, troops, or facilities shall not be allowed in the Philippines except
under a treaty duly concurred in by the Senate and, when the Congress so
requires, ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the other
contracting State. (Article XVIII, Section 25)
[Note: After a thorough examination of the content, purpose, and framework of the MDT and the
VFA, we find that EDCA has remained within the parameters set in these two treaties. Just like the Terms
of Reference mentioned in Lim, mere adjustments in detail to implement the MDT and the VFA can be in
the form of executive agreements. (Saguisag v. Executive Secretary, G. R. No. 212426, January 12, 2016]
Judicial Department
Article VIII
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law.
119
Section 2. The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the
various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in
Section 5 hereof.
No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its
Members.
[Note: The power of Congress, under Section 1 of Article VIII (of the 1935 Constitution), to create,
reorganize or even abolish courts inferior to the Supreme Court is plenary. The security of tenure is not a
personal privilege of any particular judge; the right of a judge to his full tenure is not dependent alone
upon his good conduct, but also upon the contingency that the legislature may, for the public good, in
establishing the courts, from time to time consider his office unnecessary and abolish it. Tenure of office
presupposes the existence of the office. Petitioners were not removed from office for a removal implies
that the office exists after the ouster. In this case, nothing remained after its abolition. (Ocampo v. Secretary
of Justice, G.R. No. L-7910, January 18, 1955, 51 O.G. 147)]
Section 4. (1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices.
It may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall
be filled within ninety days from the occurrence thereof.
(2) All cases involving the constitutionality of a treaty, international or executive agreement, or law,
which shall be heard by the Supreme Court en banc, and all other cases which under the Rules of
Court are required to be heard en banc, including those involving the constitutionality, application, or
operation of presidential decrees, proclamations, orders, instructions, ordinances, and other
regulations, shall be decided with the concurrence of a majority of the Members who actually took
part in the deliberations on the issues in the case and voted thereon.
(3) Cases or matters heard by a division shall be decided or resolved with the concurrence of a
majority of the Members who actually took part in the deliberations on the issues in the case and
voted thereon, and in no case without the concurrence of at least three of such Members. When the
required number is not obtained, the case shall be decided en banc: Provided, that no doctrine or
principle of law laid down by the court in a decision rendered en banc or in division may be modified
or reversed except by the court sitting en banc.
[Note: With the aforesaid rule of construction in mind, it is clear that only cases are referred to the
Court en banc for decision whenever the required number of votes is not obtained. Conversely, the rule
does not apply where, as in this case, the required three votes is not obtained in the resolution of a motion
for reconsideration. Hence, the second sentence of the aforequoted provision speaks only of case and not
matter. The reason is simple. The above-quoted Article VIII, Section 4(3) pertains to the disposition of
cases by a division. If there is a tie in the voting, there is no decision. The only way to dispose of the case
then is to refer it to the Court en banc. On the other hand, if a case has already been decided by the
division and the losing party files a motion for reconsideration, the failure of the division to resolve the
motion because of a tie in the voting does not leave the case undecided. There is still the decision which
must stand in view of the failure of the members of the division to muster the necessary vote for its
reconsideration. Quite plainly, if the voting results in a tie, the motion for reconsideration is lost. The
assailed decision is not reconsidered and must therefore be deemed affirmed. Such was the ruling of this
Court in the Resolution of November 17, 1998. (Fortich v. Corona, G.R. No. 131457, August 19, 1999, 312
SCRA 751)]
In Vargas v. Rilloraza (80 Phil. 297), the Supreme Court declared as unconstitutional a law
(The People’s Court Act) which provided that whenever the Supreme Court had to hear
collaboration cases, the members thereof who were disqualified because they had also
120
participated in the Occupation government would be temporarily replaced by ad hoc members
to be designated by the President from either the Court of Appeals or the courts of first instance.
The result was the creation of two Supreme Courts: one the regular body and the other the
temporary court to sit only in collaboration cases.
Lower courts refer to all other courts below the Supreme Court, i.e., the Court of Appeals,
the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Courts, the Metropolitan Trial
Courts, the Municipal Trial Courts, the Shari‘a Courts and all other courts created by law.
[Note: In the case of Ramon Ruffy vs. Chief of Staff of the Philippine Army, 43 Off. Gaz., 855, we did
not hold that the word "court" in general used in our Constitution does not include a Court-Martial; what
we held is that the words "inferior courts" used in connection with the appellate jurisdiction of the
Supreme Court to "review on appeal certiorari or writ of error, as the law or rules of court may provide,
final judgments of inferior courts in all criminal cases in which the penalty imposed is death or life
imprisonment," as provided for in section 2, Article VIII, of the Constitution, do not refer to CourtsMartial or Military Courts. (Garcia v. Executive Secretary, G.R. No. 198554, July 30, 2012)
[Note: Hence, as extensively discussed above, the General Court Martial is a court within the
strictest sense of the word and acts as a criminal court. On that premise, certain provisions of the Revised
Penal Code, insofar as those that are not provided in the Articles of War and the Manual for CourtsMartial, can be supplementary. (Garcia v. Executive Secretary, G.R. No. 198554, July 30, 2012)]
[Note: The fact that a judgment of conviction, not of acquittal, rendered by a court-martial must
be approved by the reviewing authority before it can be executed (Article of War 46), does not change or
affect the character of a court-martial as a court. A judgment of the Court of First Instance imposing death
penalty must also be approved by the Supreme Court before it can be executed. (Garcia v. Executive
Secretary, G.R. No. 198554, July 30, 2012)]
The Supreme Court is the only constitutional court, all the lower courts being of
statutory creation.
[Note: Regional Trial Courts (RTC) have the authority and jurisdiction to consider the
constitutionality of statutes, executive orders, presidential decrees and other issuances. The Constitution
vests that power not only in the Supreme Court but in all Regional Trial Courts. (Planters Products Inc. v.
Fertiphil Corporation, G.R. No. 166006, March 14, 2008) In Equi-Asia Placement, Inc. v. Department of Foreign
Affairs (G.R. No. 152214, September 19, 2006, 502 SCRA 295), the Supreme Court emphasized that such
jurisdiction is not limited to the Court of Appeals or to the Supreme Court. In Philippine Coconut Producers
Federation, Inc. v Republic of the Philippines (G.R. Nos. 177857-58, January 24, 2012), the Court likewise
affirmed the authority of the Sandiganbayan to pass upon the constitutionality of a statute. (British
American Tobacco v. Camacho, G.R. No. 163583, August 20, 2008, 562 SCRA 511) The Court of Tax Appeals
has undoubted jurisdiction to pass upon the constitutionality or validity of a tax law or regulation when
raised by the taxpayer as a defense in disputing or contesting an assessment or claiming a refund. It is
only in the lawful exercise of its power to pass upon all maters brought before it, as sanctioned by Section
7 of Republic Act No. 1125, as amended. This Court, however, declares that the Court of Tax Appeals
may likewise take cognizance of cases directly challenging the constitutionality or validity of a tax law or
regulation or administrative issuance (revenue orders, revenue memorandum circulars, rulings). (Banco
de Oro v. Republic, G.R. No. 198756, August 16, 2016)]
121
The Constitutional Commissions
Section 4. The Constitutional Commissions shall appoint their officials and employees in accordance
with law. (Article IX-A)
[Note: Being a member of the fiscal autonomy group does not vest the agency with the authority
to reclassify, upgrade, and create positions without approval of the DBM. While the members of the
Group are authorized to formulate and implement the organizational structures of their respective offices
and determine the compensation of their personnel, such authority is not absolute and must be exercised
within the parameters of the Unified Position Classification and Compensation System established under
RA 6758 more popularly known as the Compensation Standardization Law. We therefore reiterate our
previous stand on the matter. [Cruz vs. Court of Appeals, G.R. No. 119155, dated January 30, 1996)]
Section 5. The Commission shall enjoy fiscal autonomy. Their approved annual appropriations shall
be automatically and regularly released. (Article IX-A)
[Note: By parity of construction, automatic release of approved annual appropriations to
petitioner, a constitutional commission which is vested with fiscal autonomy, should thus be construed to
mean that no condition to fund releases to it may be imposed. This conclusion is consistent with the
above-cited June 3, 1993 Resolution of this Court which effectively prohibited the enforcement of a no
report, no release policy against the Judiciary which has also been granted fiscal autonomy by the
Constitution. (Civil Service Commission v. Department of Budget and Management, G.R. No. 158791, July 22,
2005)]
Section 6. Each Commission en banc may promulgate its own rules concerning pleadings and practice
before it or before any of its offices. Such rules, however, shall not diminish, increase, or modify
substantive rights. (Article IX-A)
Rules of procedure of special courts and quasi-judicial bodies shall remain
effective unless disapproved by the Supreme Court. (Article VIII, Section
5[5])
[Note: A COMELEC rule or resolution cannot supplant or vary the legislative enactments that
distinguish the grounds for disqualification from those of ineligibility, and the appropriate proceedings
to raise the said grounds. In other words, Rule 25 and COMELEC Resolution No. 7800 cannot supersede
the dissimilar requirements of the law for the filing of a petition for disqualification under Section 68, and
a petition for the denial of due course to or cancellation of CoC under Section 78 of the OEC. (Fermin v.
Commission on Elections, G.R. Nos. 179695 and 182369, December 18, 2008, 574 SCRA 782; see Loong v.
Commission on Elections G.R. No. 93986, December 22, 1992, 216 SCRA 760)]
Section 7. Each Commission shall decide by a majority vote of all its Members, any case or matter
brought before it within sixty days from the date of its submission for decision or resolution. A case or
matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or
memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise
provided by this Constitution or by law, any decision, order, or ruling of each Commission may be
brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a
copy thereof. (Article IX-A)
Majority, in this case, means a vote of four members of the Comelec. (Marcoleta v.
COMELEC, G.R. No. 181377, April 24, 2009)
122
It is provided under Section 1 of Republic Act No. 7902 that the Court of Appeals shall,
among others, exercise xxx "(3) Exclusive appellate jurisdiction over all final judgments,
decisions, resolutions, orders or awards of xxx the Civil Service Commission xxx This would be
consistent with Rule 43 of the Rules of Court xxx Further, Section 1, Rule 64 of the Rules of
Court states that it shall govern the review of final judgments and orders or resolutions of the
COMELEC and the Commission on Audit. (Ibrahim v. Commission on Elections, G.R. No. 192289,
January 8, 2013)
Civil Service Commission
Section 2. (1) The civil service embraces all branches, subdivisions, instrumentalities, and agencies of
the Government, including government-owned or controlled corporations with original charters.
(Article IX-B)
[Note: A government-owned or controlled corporation refers to any agency organized as a stock or
non-stock corporation, vested with functions relating to public needs whether governmental or
proprietary in nature, and owned by the Government of the Republic of the Philippines directly or
through its instrumentalities either wholly or, where applicable as in the case of stock corporations, to the
extent of at least a majority of its outstanding capital stock; Provided, however, That, for purposes of this
Act, the term ―GOCC‖ shall include GICP/GCE (Government Instrumentalities with Corporate
Powers/Government Corporate Entities) and GFI (Government Financial Institutions) as defined herein.
(RA 10149, Section 3[o])]
[Note: Government Instrumentalities with Corporate Powers (GICP)/Government Corporate Entities
(GCE) refer to instrumentalities or agencies of the government, which are neither corporations nor
agencies integrated within the departmental framework, but vested by law with special functions or
jurisdiction, endowed with some if not all corporate powers, administering special funds, and enjoying
operational autonomy usually through a charter including, but not limited to, the following: the Manila
International Airport Authority (MIAA), the Philippine Ports Authority (PPA), the Philippine Deposit
Insurance Corporation (PDIC), the Metropolitan Waterworks and Sewerage System (MWSS), the Laguna
Lake Development Authority (LLDA), the Philippine Fisheries Development Authority (PFDA), the Bases
Conversion and Development Authority (BCDA), the Cebu Port Authority (CPA), the Cagayan de Oro
Port Authority, the San Fernando Port Authority, the Local Water Utilities Administration (LWUA) and
the Asian Productivity Organization (APO). (RA 10149, Section 3[n])]
The Congress shall not, except by general law, provide for the formation, organization,
or regulation of private corporations. Government-owned or controlled corporations
may be created or established by special charters in the interest of the common good
and subject to the test of economic viability. (Article XII, Section 16)
The Civil Service Commission is not empowered to determine the kind or nature of the
appointment extended by the appointing officer, its authority being limited to approving or
reviewing the appointment in the light of the requirements of the Civil Service Law. When the
appointee is qualified and authorizing the other legal requirements are satisfied, the
Commission has no choice but to attest to the appointment in accordance with the Civil Service
Laws. (Luego v. Civil Service Commission, G.R. NO. L-69137 August 5, 1986, 143 SCRA 327; see
also Lapinid v. Civil Service Commission, 197 SCRA 106 and Espanol v. Civil Service Commission, 206
SCRA 715)
123
As early as Gayatao v. Civil Service Commission (285 Phil. 652 [1992]), which is analogous to
this case, the Court already ruled that in instances of reorganization, there is no encroachment
on the discretion of the appointing authority when the CSC revokes an appointment on the
ground that the removal of the employee was done in bad faith. In such instance, the CSC is not
actually directing the appointment of another but simply ordering the reinstatement of the
illegally removed employee xxx. (Cerilles v. Civil Service Commission, G.R. No. 180845, June 6,
2018)
[Note: It is well-settled that the CSC's authority "to take appropriate action on all appointments
and other personnel actions" includes the power "to recall an appointment initially approved, [if later on
found to be] in disregard of applicable provisions of the Civil Service law and regulations." The recall or
invalidation of an appointment does not require a full-blown, trial-type proceeding. "[I]n approving or
disapproving an appointment, [the CSC] only examines the conformity of the appointment with
applicable provisions of law and whether the appointee possesses all the minimum qualifications and
none of the disqualifications." Thus, in contrast to administrative disciplinary actions, a recall does not
require notice and hearing. (Civil Service Commission v. Peter G. Cutao, G.R. No. 225151. September 30,
2020)]
[Note: The mere fact that a position belongs to the Career Service does not automatically confer
security of tenure on its occupant even if he does not possess the required qualifications. Such right will
have to depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A
person who does not have the requisite qualifications for the position cannot be appointed to it in the first
place or, only as an exception to the rule, may be appointed to it merely in an acting capacity in the
absence of appropriate eligibles. The appointment extended to him cannot be regarded as permanent
even if it may be so designated. [Achacoso v. Macaraig, 272-A Phil. 201, 205-206 (1991), cited in Seneres v.
Sabido, G.R. No. 172902, October 21, 2015)]
Section 5. – The Civil Service Commission shall hear and decide administrative
cases instituted or brought before it, directly or on appeal, including contested
appointments and review decisions and actions of its offices and of the agencies
attached to it.
Section 7. The Civil Service Commission shall take cognizance of the following
cases:
A.
Disciplinary – [1] Decisions of Civil Service Commission
Regional Offices brought before it on appeal or petition for review.
[2] Decisions of heads of agencies imposing penalties exceeding
thirty days suspension or fine in an amount exceeding thirty days
salary brought before it on appeal [3] Complaints brought against
Civil Service Commission personnel. [4] Complaints against
officials who are not presidential appointees. [5] Decisions of
heads of agencies imposing penalties not exceeding 30 days
suspension or fine equivalent thereto but violating due process. [6]
Requests for transfer of venue of hearing on cases being heard by
Civil Service Commission Regional Offices. [7] Appeals from the
order of preventive suspension. [8] Such other actions or requests
124
involving issues arising out of or in connection with the foregoing
enumeration.
B.
Non-Disciplinary - [1] Decisions of heads of agencies on
personnel actions. [2] Decisions of Civil Service Commission
Regional Offices. [3] Requests for favorable recommendation on
petition for the removal of administrative penalties or disabilities.
[4] Protests against appointments, or other personnel actions,
involving non-presidential appointees‘ [5] Requests for extension
of service. [6] Reassignment of public health workers and public
social workers brought before it on appeal. [7] Request for
correction of personal information in the records of the
Commission within five years before mandatory requirement. [8]
Such other analogous actions or petitions arising out of or in
relation with the foregoing enumeration.
Section 9. Jurisdiction of Heads of Agencies. – The Secretaries and heads of
agencies, and other instrumentalities, provinces, cities and municipalities shall
have concurrent jurisdiction with the Commission over their respective officers
and employees. They shall take cognizance of complaints involving their
respective personnel. Their decisions shall be final in case the penalty imposed is
suspension for not more than 30 days or fine in an amount not exceeding 30 days
salary. In case the decision rendered by a bureau or office head is appealable to
the Commission, the same may be initially appealed to the department and finally
to the Commission and pending appeal, the same shall be executory except whn
the penalty is removal, in which case the same shall be executory only after
confirmation by the Secretary concerned.
Commission on Elections
Section 2. The Commission on Elections shall exercise the following powers and functions:
1.
Enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall.
The Comelec has the constitutional mandate to enforce and administer all laws and
regulations relative to the conduct of an election. It has the power to create its own rules and
regulations… (Munder v. Commission on Elections, G.R. No. 194076, October 19, 2011)
[Note: A COMELEC rule or resolution cannot supplant or vary the legislative enactments that
distinguish the grounds for disqualification from those of ineligibility, and the appropriate proceedings
to raise the said grounds. In other words, Rule 25 and COMELEC Resolution No. 7800 cannot supersede
the dissimilar requirements of the law for the filing of a petition for disqualification under Section 68, and
a petition for the denial of due course to or cancellation of CoC under Section 78 of the OEC. (Munder v.
Commission on Elections, G.R. No. 194076, October 19, 2011)]
125
[Note: The COMELEC cannot, in the guise of enforcing and administering election laws, validly
impose qualifications on candidates for senator in addition to what the Constitution prescribes. (Social
Justice Society v. Dangerous Drugs Board, G.R. No. 157870, November 3, 2008)]
[Note: Section 8 of R.A. No. 7941 enumerates only three instances in which the party-list organization
can substitute another person in place of the nominee whose name has been submitted to the COMELEC,
namely: (a) when the nominee dies; (b) when the nominee withdraws in writing his nomination; and (c)
when the nominee becomes incapacitated. Section 13 of Resolution No. 7804 states:
Section 13. Substitution of nominees. – A party-list nominee may be substituted only when
he dies, or his nomination is withdrawn by the party, or he becomes incapacitated to
continue as such, or he withdraws his acceptance to a nomination. In any of these cases,
the name of the substitute nominee shall be placed last in the list of nominees.
Unlike Section 8 of R.A. No. 7941, the foregoing regulation provides four instances, the fourth
being when the ―nomination is withdrawn by the party.‖ The insertion of the new ground was invalid.
An axiom in administrative law postulates that administrative authorities should not act arbitrarily and
capriciously in the issuance of their IRRs, but must ensure that their IRRs are reasonable and fairly
adapted to secure the end in view. If the IRRs are shown to bear no reasonable relation to the purposes
for which they were authorized to be issued, they must be held to be invalid and should be struck down.
(Lokin v. COMELEC, G.R. No. 180443, June 22, 2010)]
The COMELEC has the power to annul an illegal registry of voters (Prudente v. Genuino, G.R. No.
L-5222, November 6, 1951)
With these considerations in mind, petitioners' claim that biometrics validation imposed
under RA 10367, and implemented under COMELEC Resolution Nos. 9721, 9863, and 10013,
must perforce fail. To reiterate, this requirement is not a "qualification" to the exercise of the
right of suffrage, but a mere aspect of the registration procedure, of which the State has the right
to reasonably regulate. xxx. Thus, unless it is shown that a registration requirement rises to the
level of a literacy, property or other substantive requirement as contemplated by the Framers of
the Constitution - that is, one which propagates a socio-economic standard which is bereft of
any rational basis to a person's ability to intelligently cast his vote and to further the public
good - the same cannot be struck down as unconstitutional, as in this case. (Kabataan Party-List
v. Commission on Elections, G.R. No. 221318, December 16, 2015)
When a candidate files his certificate of candidacy, the COMELEC has a ministerial duty
to receive and acknowledge its receipt. (See Section 76 of the Omnibus Election Code, Cerafica v.
COMELEC, G.R. No. 205136, December 2, 2014) (Cerafica v. COMELEC, G.R. No. 205136,
December 2, 2014)
The COMELEC can refuse to give due course to or cancel certificates of candidacy (Section 78,
Omnibus Election Code; Salcedo II v. Commission on Elections, G.R. No. 135886, August 16, 1999, 312 SCRA
447)
Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. - A
verified petition seeking to deny due course or to cancel a certificate of candidacy
may be filed by the person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The
126
petition may be filed at any time not later than twenty-five days from the time of
the filing of the certificate of candidacy and shall be decided, after due notice and
hearing, not later than fifteen days before the election. (Omnibus Election Code)
As stated in law, in order to justify the cancellation of the certificate of candidacy under
Section 78, it is essential that the false representation mentioned therein pertained to a material
matter for the sanction imposed by this provision would affect the substantive rights of a
candidate – the right to run for the elective post for which he filed the certificate of candidacy.
(Salcedo II v. Commission on Elections, 371 Phil. 377 (1999), cited in Justimbaste v. COMELEC, G.R.
No. 179413, November 28, 2008)
Furthermore, aside from the requirement of materiality, the false representation must
consist of a deliberate attempt to mislead, misinform, or hide a fact which would otherwise
render a candidate ineligible. In other words, it must be made with an intention to deceive the
electorate as to one‘s qualification for public office. (Gonzalez v. Commission on Elections, G.R. No.
192856, March 8, 2011)
A person whose certificate of candidacy had been denied due course and/or cancelled
under Section 78 is deemed to have not been a candidate at all, because his certificate of
candidacy is considered void ab initio and thus, cannot give rise to a valid candidacy and
necessarily to valid votes. In both Jalosjos, Jr. v. Commission on Elections (696 Phil. 601 [2012]) and
Aratea v. Commission on Elections (696 Phil. 700 [2012]), we proclaimed the second placer, the
only qualified candidate who actually garnered the highest number of votes, for the position of
Mayor. We found that since the certificate of candidacy of the candidate with the highest
number of votes was void ab initio, he was never a candidate at all, and all his votes were
considered stray votes. (Ty-Delgado v. House of Representatives Electoral Tribunal, G.R. No. 219603,
January 26, 2016)
The COMELEC can disqualify candidates. (Section 68, Omnibus Election Code;
Justimbaste v. Commission on Elections, G.R. No. 179413, November 28, 2008, 572 SCRA 736)
Sec. 68. Disqualifications. - Any candidate who, in an action or protest in which
he is a party is declared by final decision of a competent court guilty of, or found
by the Commission of having (a) given money or other material consideration to
influence, induce or corrupt the voters or public officials performing electoral
functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in
his election campaign an amount in excess of that allowed by this Code; (d)
solicited, received or made any contribution prohibited under Sections 89, 95, 96,
97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e,
k, v, and cc, subparagraph 6, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding the office. Any person who is a
permanent resident of or an immigrant to a foreign country shall not be qualified
to run for any elective office under this Code, unless said person has waived his
status as permanent resident or immigrant of a foreign country in accordance
with the residence requirement provided for in the election laws. (Omnibus
Election Code)
127
Sec. 12. Disqualifications. - Any person who has been declared by competent
authority insane or incompetent, or has been sentenced by final judgment for
subversion, insurrection, rebellion or for any offense for which he has been
sentenced to a penalty of more than eighteen months or for a crime involving
moral turpitude, shall be disqualified to be a candidate and to hold any office,
unless he has been given plenary pardon or granted amnesty.
This disqualifications to be a candidate herein provided shall be deemed
removed upon the declaration by competent authority that said insanity or
incompetence had been removed or after the expiration of a period of five years
from his service of sentence, unless within the same period he again becomes
disqualified. (Omnibus Election Code)
Sec. 72. Effects of disqualification cases and priority. - The Commission and the
courts shall give priority to cases of disqualification by reason of violation of this
Act to the end that a final decision shall be rendered not later than seven days
before the election in which the disqualification is sought.
Any candidate who has been declared by final judgment to be disqualified shall
not be voted for, and the votes cast for him shall not be counted. Nevertheless, if
for any reason, a candidate is not declared by final judgment before an election to
be disqualified and he is voted for and receives the winning number of votes in
such election, his violation of the provisions of the preceding sections shall not
prevent his proclamation and assumption to office. (Omnibus Election Code)
[Note: As discussed in the case of Lanot vs. Comelec 537 Phil. 332 [2006]),each of the acts listed as
ground for disqualification under Section 68 of the OEC has two aspects – electoral and criminal which
may proceed independently from each other, to wit:
xxx. The electoral aspect of a disqualification case determines whether the offender
should be disqualified from being a candidate or from holding office. Proceedings are
summary in character and require only clear preponderance of evidence. An erring
candidate may be disqualified even without prior determination of probable cause in a
preliminary investigation. The electoral aspect may proceed independently of the
criminal aspect, and vice-versa.
The criminal aspect of a disqualification case determines whether there is probable cause
to charge a candidate for an election offense. The prosecutor is the COMELEC, through
its Law Department, which determines whether probable cause exists. If there is probable
cause, the COMELEC, through its Law Department, files the criminal information before
the proper court. Proceedings before the proper court demand a full-blown hearing and
require proof beyond reasonable doubt to convict. A criminal conviction shall result in
the disqualification of the offender, which may even include disqualification from
holding a future public office." (Emphasis supplied)
The petition for disqualification against Ejercito for campaign over-spending before the
Commission is heard and resolved pursuant to the electoral aspect of Section 68 of the OEC. It is an
administrative proceeding separate and distinct from the criminal proceeding through which Ejercito
may be made to undergo in order to determine whether he can be held criminally liable for the same act
128
of over-spending. It is through this administrative proceeding that this Commission, initially through its
divisions, makes a factual determination on the veracity of the parties‘ respective allegations in a
disqualification case. There is no need for a preliminary investigation finding on the criminal aspect of the
offenses in Section 68 before the Commission can act on the administrative or electoral aspect of the
offense. All that is needed is a complaint or a petition. As enunciated in Lanot, "(a)n erring candidate may
be disqualified even without prior determination of probable cause in a preliminary investigation. The
electoral aspect may proceed independently of the criminal aspect, and vice-versa." (Ejercito v.
Commission on Elections, G.R. No. 212398, November 25, 2014)]
[Note: The jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated
in Section 68 of the Omnibus Election Code. All other election offenses (referring to those criminal cases
which provide for the accessory penalty of disqualification) are beyond the ambit of COMELEC jurisdiction.
They are criminal and not administrative in nature. (Jalosjos v. Commission on Elections, G.R. No. 193237,
October 9, 2012)]
The COMELEC may postpone elections. (Ocampo v. Commission on Elections, G.R. No. L13158, December 6, 1957)
Sec. 5. Postponement of election. - When for any serious cause such as violence,
terrorism, loss or destruction of election paraphernalia or records, force majeure,
and other analogous causes of such a nature that the holding of a free, orderly
and honest election should become impossible in any political subdivision, the
Commission, motu proprio or upon a verified petition by any interested party,
and after due notice and hearing, whereby all interested parties are afforded
equal opportunity to be heard, shall postpone the election therein to a date which
should be reasonably close to the date of the election not held, suspended or
which resulted in a failure to elect but not later than thirty days after the
cessation of the cause for such postponement or suspension of the election or
failure to elect. (Omnibus Election Code)
[Note: True, Congress did grant, via Sections 5 and 6 of BP 881, COMELEC with the power to
postpone elections to another date. However, this power is limited to, and can only be exercised within,
the specific terms and circumstances provided for in the law. xxx. A close reading of Section 5 of BP 881
reveals that it is meant to address instances where elections have already been scheduled to take place but have to be
postponed because of (a) violence, (b) terrorism, (c) loss or destruction of election paraphernalia or records, (d) force
majeure, and (e) other analogous causes of such a nature that the holding of a free, orderly and honest election
should become impossible in any political subdivision. xxx. Similarly, Section 6 of BP 881 applies only to those
situations where elections have already been scheduled but do not take place because of (a) force majeure,
(b) violence, (c) terrorism, (d) fraud, or (e) other analogous causes the election in any polling place has not been held
on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting
and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such
election results in a failure to elect. As in Section 5 of BP 881, Section 6 addresses instances where the
elections do not occur or had to be suspended because of unexpected and unforeseen circumstances.
(Datu Michael Abas Kida v. Senate of the Philippines, G.R. No. 196271, October 18, 2011)]
The COMELEC may declare a failure of elections. (Sanchez v. Commission on Elections, 114
SCRA 454)
129
Sec. 6. Failure of election. - If, on account of force majeure, violence, terrorism,
fraud, or other analogous causes the election in any polling place has not been
held on the date fixed, or had been suspended before the hour fixed by law for
the closing of the voting, or after the voting and during the preparation and the
transmission of the election returns or in the custody or canvass thereof, such
election results in a failure to elect, and in any of such cases the failure or
suspension of election would affect the result of the election, the Commission
shall, on the basis of a verified petition by any interested party and after due
notice and hearing, call for the holding or continuation of the election not held,
suspended or which resulted in a failure to elect on a date reasonably close to the
date of the election not held, suspended or which resulted in a failure to elect but
not later than thirty days after the cessation of the cause of such postponement or
suspension of the election or failure to elect. (Omnibus Election Code)
[Note: A failure of election may be declared only in the three instances stated in Section 6 of the
OEC: the election has not been held; the election has been suspended before the hour fixed by law; and
the preparation and the transmission of the election returns have given rise to the consequent failure to
elect, meaning nobody emerged as the winner. Furthermore, the reason for such failure of election
should be force majeure, violence, terrorism, fraud or other analogous causes. Finally, before the
COMELEC can grant a verified petition seeking to declare a failure of election, the concurrence of 2
conditions must be established, namely: (1) no voting has taken place in the precincts concerned on the
date fixed by law or, even if there was voting, the election nevertheless resulted in a failure to elect; and
(2) the votes cast would affect the result of the election. (Presbiterio v. COMELEC, G.R. No. 178884, June
30, 2008)]
[Note: The annulment of election can only be done when the COMELEC finds that an election
was vitiated by widespread and pervasive terrorism and election frauds, which resulted in the
submission at gunpoint of falsified and tampered election returns, and it is impossible to purge the illegal
from the valid returns, so that there are no returns worthy of faith and credit and from which would be
gauged a fair and true expression of the popular will. (Sanchez v. COMELEC, 114 SCRA 454, cited in
Sangcopan v. COMELEC, G. R. No. 170216 , March 12, 2008)]
The Constitution recognizes that the power to fix the date of elections is legislative in
nature, which is shown by the exceptions in previously mentioned Constitutional provisions, as
well as in the election of local government officials. (Cagas v. Commission on Elections, G.R. No.
209185, October 25, 2013)
The constitutional power of the COMELEC, in contrast with the power of Congress to
call for, and to set the date of, elections, is limited to enforcing and administering all laws and
regulations relative to the conduct of an election. [See CONSTITUTION, Article IX (C), Section
2(1)] Statutorily, COMELEC has no power to call for the holding of special elections unless
pursuant to a specific statutory grant. (Datu Michael Abas Kida v. Senate of the Philippines, G.R.
No. 196271, October 18, 2011)
In Duremdes v. Commission on Elections (G.R. Nos. 86362-63, October 27, 1989, 178 SCRA
746), this Court sustained the power of the COMELEC en banc to order a correction of the
Statement of Votes to make it conform to the election returns. (Flauta v. COMELEC, G.R. No.
184586, July 22, 2009)
130
[Note: In Milla v. Balmores-Laxa (G.R. No. 151216, July 18, 2003, 401 SCRA 679), its significance
was underscored, and the Court sustained the COMELEC‘s power to annul the proclamation of a
winning candidate who had taken his oath and assumed office due to an alleged error in the tabulation of
the SOV.]
[Note: Under Section 5, Rule 27 of the COMELEC Rules of Procedure, correction of manifest
errors in the tabulation or tallying of results during the canvassing may be filed directly with the
Commission, even after a proclamation of the winning candidates. Despite the proclamation of the
winning candidates, the COMELEC still has jurisdiction to correct manifest errors in the election returns
for the Sangguniang Bayan candidates. A ―manifest error‖ is one that is visible to the eye or obvious to
the understanding; that which is open, palpable, incontrovertible, needing no evidence to make it more
clear. (Abainza v. Arellano, G.R. No. 181644, December 8, 2008)]
The COMELEC has the authority to cancel a proclamation made by a board of
canvassers (Lacson v. Commission on Elections, G.R. No. L-16261, December 28, 1951) The
COMELEC has the power to oust a candidate already proclaimed notwithstanding that he has
already assumed office. (Aguam v. Commission on Elections, 23 SCRA 883)
[Note: A pre-proclamation controversy is defined in Section 241 of the OEC as referring to "any
question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any
candidate or by any registered political party or coalition of parties before the board or directly with the
Commission, or any matter raised under Sections 233 (when the election returns are delayed, lost or destroyed),
234 (material defects in the election returns), 235 (when election returns appear to be tampered with or falsified)
and 236 (discrepancies in election returns) in relation to the preparation, transmission, receipt, custody and
appreciation of the election returns." Section 243 of the OEC restrictively enumerates as follows the issues
which can be raised in a pre-proclamation controversy:
(a) Illegal composition or proceedings of the board of canvassers;
(b) The canvassed election returns are incomplete, contain material defects, appear to be
tampered with or falsified, or contain discrepancies in the same returns or in other
authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of this Code;
(c) The election returns were prepared under duress, threats, coercion, or intimidation, or
they are obviously manufactured or not authentic; and
(d) When substitute or fraudulent returns in controverted polling places were canvassed,
the results of which materially affected the standing of the aggrieved candidate or
candidates.
The illegality of the proceedings of the board of canvassers is the first issue which may be raised in a preproclamation controversy. To illustrate, the proceedings are to be considered as illegal when the board is
constituted not in accordance with law, or is composed of members not enumerated therein, or when
business is transacted sans a quorum. (Ibrahim v. Commission on Elections, G.R. No. 192289, January 8,
2013)]
[Note: Abduction of a voter, the killing of a political leader, the threats which prevented the
holding of the campaign sorties, and the intimidation of voters, or of terrorism [also massive vote-buying
and bribery] are proper grounds for an election protest, not a pre-proclamation controversy - illegal
composition or proceedings of the board of canvassers, canvassed election returns are incomplete,
131
contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same
returns or in other authentic copies thereof; election returns were prepared under duress, threats,
coercion, or intimidation, or they are obviously manufactured or not authentic; substitute or fraudulent
returns in controverted polling places were canvassed, the results of which materially affected the
standing of the aggrieved candidate or candidates. In fact, had Abayon timely filed an election protest,
bearing the same allegations and raising identical issues, it would have been given due course. The tenday period for filing an election contest or a petition for quo warranto cannot be considered suspended
with the filing thereof. (Abayon v. COMELEC and Raul Daza, G.R. No. 181295, April 2, 2009)]
2.
Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and
qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over
all contests involving elective municipal officials decided by trial courts of general jurisdiction, or
involving elective barangay officials decided by trial courts of limited jurisdiction.
Decisions, final orders, or rulings of the Commission on election contests involving elective
municipal and barangay offices shall be final, executory, and not appealable.
xxx it is then clear that to be considered a Member of the House of Representatives, there
must be a concurrence of the following requisites: (1) a valid proclamation, (2) a proper oath,
and (3) assumption of office. xxx. Here, the petitioner cannot be considered a Member of the
House of Representatives because, primarily, she has not yet assumed office. To repeat what
has earlier been said, the term of office of a Member of the House of Representatives begins
only "at noon on the thirtieth day of June next following their election." Thus, until such time,
the COMELEC retains jurisdiction. (Reyes v. Commission on Elections, G.R. No. 207264, June 25,
2013)
We reject the Lico Group's argument that the COMELEC has no jurisdiction to decide
which of the feuding groups is to be recognized, and that it is the Regional Trial Court which
has jurisdiction over intra-corporate controversies. Indeed, the COMELEC's jurisdiction to settle
the struggle for leadership within the party is well established. This power to rule upon
questions of party identity and leadership is exercised by the COMELEC as an incident of its
enforcement powers. That being said, We find the COMELEC to have committed grave abuse of
discretion in declaring the Rimas Group as the legitimate set of Ating Koop officers for the
simple reason that the amendments to the Constitution and By-laws of Ating Koop were not
registered with the COMELEC. Hence, neither of the elections held during the Cebu meeting
and the Paranaque conference pursuant to the said amendments, were valid. (Lico v. Commission
on Elections, G.R. No. 205505, September 29, 2015)
3.
Deputize, with the concurrence of the President, law enforcement agencies and
instrumentalities of the Government, including the Armed Forces of the Philippines, for the
exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections.
Recommend to the President the removal of any officer or employee it has
deputized, or the imposition of any other disciplinary action, for violation or
disregard of, or disobedience to, its directive, order, or decision. (Constitution,
Article IX-C, Section 2[8])
132
4.
Register, after sufficient publication, political parties, organizations, or coalitions which, in
addition to other requirements, must present their platform or program of government; and
accredit citizens' arms of the Commission on Elections. Religious denominations and sects
shall not be registered. Those which seek to achieve their goals through violence or unlawful
means, or refuse to uphold and adhere to this Constitution, or which are supported by any
foreign government shall likewise be refused registration.
Financial contributions from foreign governments and their agencies to political parties,
organizations, coalitions, or candidates related to elections, constitute interference in national
affairs, and, when accepted, shall be an additional ground for the cancellation of their
registration with the Commission, in addition to other penalties that may be prescribed by
law.
[Note: The COMELEC‘s jurisdiction over intra-party leadership disputes has already been settled
by the Court. The Court ruled in Kalaw v. Commission on Elections that the COMELEC‘s powers and
functions under Section 2, Article IX-C of the Constitution, ―include the ascertainment of the identity of
the political party and its legitimate officers responsible for its acts.‖ The Court also declared in another
case that the COMELEC‘s power to register political parties necessarily involved the determination of the
persons who must act on its behalf. Thus, the COMELEC may resolve an intra-party leadership dispute,
in a proper case brought before it, as an incident of its power to register political parties. (Atienza v.
COMELEC, G.R. No. 188920, February 16, 2010)]
Section 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its
rules of procedure in order to expedite disposition of election cases, including pre- proclamation
controversies. All such election cases shall be heard and decided in division, provided that motions for
reconsideration of decisions shall be decided by the Commission en banc.
The COMELEC sitting en banc, however, does not have the authority to hear and decide election
cases, including pre-proclamation controversies in the first instance, as the COMELEC in division has
such authority. The COMELEC en banc can exercise jurisdiction only on motions for reconsideration of the
resolution or decision of the COMELEC in division. xxx. Pursuant to Rule 18 of the Omnibus Election
Code, decisions and resolutions of any division of the COMELEC in special cases become final and
executory after the lapse of five days, unless a timely motion for reconsideration is lodged with the
COMELEC en banc. (Pacificador v. COMELEC, G.R. No. 178259, March 13, 2009)
Only final orders of the COMELEC in Division may be raised before the COMELEC en banc. xxx.
Under this constitutional provision, the COMELEC en banc shall decide motions for reconsideration
only of "decisions" of a Division, meaning those acts having a final character. Clearly, the assailed status
quo ante Order, being interlocutory, should first be resolved by the COMELEC First Division via a motion
for reconsideration. (Cayetano v. COMELEC, G.R. No. 193846, April 12, 2011)
[Note: The above-cited constitutional provision requiring a motion for reconsideration before the
COMELEC En Banc may take action is confined only to cases where the COMELEC exercises its quasijudicial power. It finds no application, however, in matters concerning the COMELEC‘s exercise of
administrative functions. (Jalosjos v. Commission on Elections, G.R. No. 205033, June 18, 2013)]
Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation and other public utilities,
media of communication or information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including any government-owned
or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for
133
public information campaigns and forums among candidates in connection with the objective of
holding free, orderly, honest, peaceful, and credible elections.
To compel print media companies to donate "Comelec-space" of the dimensions
specified in Section 2 of Resolution No. 2772 (not less than one-half page), amounts to "taking"
of private personal property for public use or purposes. (Philippine Press Institute v. Commission
on Elections, G.R. No. L-119694, May 22, 1995, 244 SCRA 272)
Indeed, provisions for COMELEC Time have been made by amendment of the
franchises of radio and television broadcast stations and, until the present case was brought,
such provisions had not been thought of as taking property without just compensation. Art. XII,
§11 of the Constitution authorizes the amendment of franchises for "the common good." What
better measure can be conceived for the common good than one for free air time for the benefit
not only of candidates but even more of the public, particularly the voters, so that they will be
fully informed of the issues in an election? "[I]t is the right of the viewers and listeners, not the
right of the broadcasters, which is paramount." xxx. In truth, radio and television broadcasting
companies, which are given franchises, do not own the airwaves and frequencies through
which they transmit broadcast signals and images. They are merely given the temporary
privilege of using them. Since a franchise is a mere privilege, the exercise of the privilege may
reasonably be burdened with the performance by the grantee of some form of public service.
(Telecommunications and Broadcast Attorneys of the Philippines v. Commission on Elections, G.R. No.
132922, April 21, 1998, 289 SCRA 337)
There is no question that the COMELEC is the office constitutionally and statutorily
authorized to enforce election laws but it cannot exercise its powers without limitations - or
reasonable basis. It could not simply adopt measures or regulations just because it feels that it is
the right thing to do, in so far as it might be concerned. It does have discretion, but such
discretion is something that must be exercised within the bounds and intent of the law. The
COMELEC is not free to simply change the rules especially if it has consistently interpreted a
legal provision in a particular manner in the past. If ever it has to change the rules, the same
must be properly explained with sufficient basis. (GMA Network, Inc. v. Commission on Elections,
G.R. No. 205357, September 2, 2014)
[Note: The assailed rule on "aggregate-based" airtime limits is unreasonable and arbitrary as it
unduly restricts and constrains the ability of candidates and political parties to reach out and
communicate with the people. xxx. At the same time, the right to speak and to reach out would not be
meaningful if it is just a token ability to be heard by a few. It must be coupled with substantially
reasonable means by which the communicator and the audience could effectively interact. Section 9 (a) of
COMELEC Resolution No. 9615, with its adoption of the "aggregate-based" airtime limits unreasonably
restricts the guaranteed freedom of speech and of the press. (GMA Network, Inc. v. Commission on Elections,
G.R. No. 205357, September 2, 2014)]
The inclusion of election surveys in the list of items regulated by the Fair Election Act is
a recognition that election surveys are not a mere descriptive aggregation of data. Publishing
surveys are a means to shape the preference of voters, inform the strategy of campaign
machineries, and ultimately, affect the outcome of elections. Election surveys have a similar
nature as election propaganda. They are expensive, normally paid for by those interested in the
134
outcome of elections, and have tremendous consequences on election results. (Social Weather
Station v. Commission on Elections, G.R. No. 208062, April 7, 2015)
… the constitutional grant of supervisory and regulatory powers to the COMELEC over
franchises and permits to operate, though seemingly unrestrained, has its limits… The
COMELEC‘s constitutionally delegated powers of supervision and regulation do not extend to
the ownership per se of PUVs and transport terminals, but only to the franchise or permit to
operate the same. There is a marked difference between the franchise or permit to operate
transportation for the use of the public and the ownership per se of the vehicles used for public
transport. (1-United Transport Koalisyon v. Commission on Elections, G.R. No. 206020, April 14,
2015)
[Note: The posting of election campaign material on vehicles used for public transport or on
transport terminals is not only a form of political expression, but also an act of ownership – it has nothing
to do with the franchise or permit to operate the PUV or transport terminal. (1-United Transport Koalisyon
v. Commission on Elections, G.R. No. 206020, April 14, 2015)]
[Note: … the COMELEC does not have the constitutional power to regulate public transport
terminals owned by private persons. The ownership of transport terminals, even if made available for use
by the public commuters, likewise remains private… A regulation of public transport terminals based on
extraneous circumstances, such as prohibiting the posting of election campaign materials thereon,
amounts to regulating the ownership of the transport terminal and not merely the permit to operate the
same. Accordingly, Section 7(g) items (5) and (6) of Resolution No. 9615 are not within the
constitutionally delegated power of the COMELEC to supervise or regulate the franchise or permit to
operate of transportation utilities. (1-United Transport Koalisyon v. Commission on Elections, G.R. No.
206020, April 14, 2015)]
Commission on Audit
Section 2.
1.
The Commission on Audit shall have the power, authority, and duty to examine, audit, and
settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds
and property, owned or held in trust by, or pertaining to, the Government, or any of its
subdivisions, agencies, or instrumentalities, including government-owned or controlled
corporations with original charters, and on a post- audit basis:
a.
constitutional bodies, commissions and offices that have been granted fiscal autonomy
under this Constitution;
b. autonomous state colleges and universities;
c.
other government-owned or controlled corporations and their subsidiaries; and
d. such non-governmental entities receiving subsidy or equity, directly or indirectly,
from or through the Government, which are required by law or the granting
institution to submit to such audit as a condition of subsidy or equity. However,
where the internal control system of the audited agencies is inadequate, the
Commission may adopt such measures, including temporary or special pre-audit, as
are necessary and appropriate to correct the deficiencies. It shall keep the general
135
accounts of the Government and, for such period as may be provided by law, preserve
the vouchers and other supporting papers pertaining thereto.
Under the first paragraph of the above provision (Section 2, Article IX-D of the
Constitution; Section 11, Chapter 4, Subtitle B, Title I, Book V of the Administrative Code of
1987), the COA's audit jurisdiction extends to the government, or any of its subdivisions,
agencies, or instrumentalities, including government-owned or controlled corporations with
original charters. Its jurisdiction likewise covers, albeit on a post-audit basis, the constitutional
bodies, commissions and offices that have been granted fiscal autonomy, autonomous state
colleges and universities, other government-owned or controlled corporations and their
subsidiaries, and such non-governmental entities receiving subsidy or equity from or through
the government. The power of the COA to examine and audit government agencies cannot be
taken away from it as Section 3, Article IX-D of the Constitution mandates that ―no law shall be
passed exempting any entity of the Government or its subsidiary in any guise whatever, or any
investment of public funds, from the jurisdiction of the (COA).‖ (Veloso v. Commission on Audit,
G.R. No. 193677, September 6, 2011)
[Note: There is nothing in the said provision that requires the COA to conduct a pre-audit of all
government transactions and for all government agencies. The only clear reference to a pre-audit
requirement is found in Section 2, paragraph 1, which provides that a post-audit is mandated for certain
government or private entities with state subsidy or equity and only when the internal control system of
an audited entity is inadequate. In such a situation, the COA may adopt measures, including a temporary
or special pre-audit, to correct the deficiencies. Hence, the conduct of a pre-audit is not a mandatory duty
that this Court may compel the COA to perform. This discretion on its part is in line with the
constitutional pronouncement that the COA has the exclusive authority to define the scope of its audit
and examination. When the language of the law is clear and explicit, there is no room for interpretation,
only application. Neither can the scope of the provision be unduly enlarged by this Court. (De la Llana v.
Chairman, Commission on Audit, G. R. No. 180989, February 7, 2012)]
The Boy Scouts of the Philippines is a public corporation and its funds are subject to the
COA‘s audit jurisdiction. (Boy Scouts of the Philippines v. Commission on Audit, G.R. No. 177131,
June 7, 2011)
The Court already ruled in several cases that a water district is a government-owned
and controlled corporation with a special charter since it is created pursuant to a special law, PD
198. The COA has the authority to investigate whether directors, officials or employees of
government-owned and controlled corporations, receiving additional allowances and bonuses,
are entitled to such benefits under applicable laws. Thus, water districts are subject to the
jurisdiction of the COA. (De Jesus v. Commission on Audit, G.R. No. 149154, June 10, 2003)
It must be stressed that a quasi-public corporation is a species of private corporations,
but the qualifying factor is the type of service the former renders to the public: if it performs a
public service, then it becomes a quasi-public corporation. Petitioner is DECLARED a private
domestic corporation subject to the jurisdiction of the Securities and Exchange
Commission. (Philippine Society for the Prevention of Cruelty to Animals v. Commission on Audit,
G.R. No. 169752, September 25, 2007)
136
Nonetheless, expenditures of government funds by the Constitutional and Fiscal
Autonomy Group are still audited by the Commission on Audit on a post-audit basis. (Maritime
Industry Authority v. Commission on Audit, G.R. No. 185812, January 13, 2015)
A corporation, whether with or without an original charter, is under the audit jurisdiction of the
Commission on Audit so long as the government owns or has controlling interest in it. (Oriondo v.
Commission on Audit, G.R. No. 211293, June 4, 2019)
[Note: …the Commission on Audit generally has audit jurisdiction over public entities. In the
Administrative Code's Introductory Provisions, the Commission on Audit is even allowed to categorize
government-owned or controlled corporations for purposes of the exercise and discharge of its powers,
functions, and responsibilities with respect to such corporations. The extent of the Commission on
Audit's audit authority even extends to non-governmental entities that receive subsidy or equity from or
through the government. xxx. This Court upheld the competence of the Commission on Audit to
determine the status of an entity as a government-owned or controlled corporation in Feliciano v.
Commission on Audit and Boy Scouts of the Philippines, among others. In these cases, the Court took
cognizance of petitions assailing the Commission on Audit's determination that Leyte Metropolitan
Water District and Boy Scouts of the Philippines are government-owned or controlled corporations, and
are thus subject to the Commission's audit jurisdiction. (Oriondo v. Commission on Audit, G.R. No. 211293,
June 4, 2019)]
[Note: As for the Boy Scouts of the Philippines, this Court held in Boy Scouts of the Philippines v.
Commission on Audit that it is a non-stock corporation created under an original charter, specifically,
Commonwealth Act No. 111. Its functions primarily involve implementing the state policy provided in
Article II, Section 13 of the Constitution on promoting and protecting the well-being of the youth; and
that it is an attached agency of the then Department of Education, Culture, and Sports, now Department
of Education.
In contrast, the Philippine Society for the Prevention of Cruelty to Animals, the Manila Economic
and Cultural Office, and the Executive Committee of the Metro Manila Film Festival were all declared not
subject to the audit jurisdiction of the Commission on Audit. The Court in Philippine Society for the
Prevention of Cruelty to Animals v. Commission on Audit held that the petitioner corporation, though created
through an original charter, eventually became a private corporation when its "sovereign powers" to
arrest offenders of animal welfare laws and the power to serve processes in connection therewith were
withdrawn via an amendatory law. The second attribute—the public character of the corporation's
functions—was therefore absent. It was in Philippine Society for the Prevention of Cruelty to Animals where
the Court held that "[t]he true criterion. . . to determine whether a corporation is public or private is
found in the totality of the relation of the corporation to the State," adding that "[if] the corporation is
created by the State as the latter's own agency or instrumentality to help it in carrying out its
governmental functions, then that corporation is public; otherwise, it is private."
The Manila Economic and Cultural Office is a non-stock corporation performing certain
"'consular and other functions' relating to the promotion, protection and facilitation of Philippine interests
in Taiwan." However, none of its members, officers or trustees were found to be government appointees
or public officers designated by reason of their office. Because of the absence of the third attribute, i.e.,
government ownership or control, this Court held in Funa v. Manila Economic and Cultural Office that
respondent corporation was not a government-owned or controlled corporation. Instead, it was declared
a "sui generis entity" whose accounts were nevertheless subject to the audit jurisdiction of the
Commission on Audit because it receives funds on behalf of the government.
137
As for the Executive Committee of the Metro Manila Film Festival, the Court declared that is not
a government-owned or controlled corporation in Fernando v. Commission on Audit because it was not
organized either as a stock or a non-stock corporation. Despite the absence of the first element, the Court
held that it is subject to the audit jurisdiction of the Commission on Audit because it receives its funds
from the government.
Taking the foregoing into consideration, we rule that the Corregidor Foundation, Inc. is a
government-owned or controlled corporation under the audit jurisdiction of the Commission on Audit.
Corregidor Foundation, Inc. was organized as a non-stock corporation under the Corporation
Code. It was issued a certificate of registration by the Securities and Exchange Commission on October
28, 1987 and, according to its Articles of Incorporation, Corregidor Foundation, Inc. was organized and to
be operated in the public interest xxx. (Oriondo v. Commission on Audit, G.R. No. 211293, June 4, 2019)]
Section 2.
2.
The Commission shall have exclusive authority, subject to the limitations in this Article, to
define the scope of its audit and examination, establish the techniques and methods required
therefor, and promulgate accounting and auditing rules and regulations, including those for
the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or
unconscionable expenditures, or uses of government funds and properties.
Section 3. No law shall be passed exempting any entity of the Government or its subsidiaries in any
guise whatever, or any investment of public funds, from the jurisdiction of the Commission on Audit.
The assailed purchase of UCPB shares of stocks using the coconut levy funds presents a
classic example of an investment of public funds. The conversion of these special public funds
into private funds by allowing private individuals to own them in their private capacities is
something else. It effectively deprives the COA of its constitutionally-invested power to audit
and settle such accounts. The conversion of the said shares purchased using special public
funds into pure and exclusive private ownership has taken, or will completely take away the
said funds from the boundaries with which the COA has jurisdiction. Obviously, the COA is
without audit jurisdiction over the receipt or disbursement of private property. Accordingly,
Article III, Section 5 of both P.D. Nos. 961 and 1468 must be struck down for being
unconstitutional, be they assayed against Section 2(1), Article XII (D) of the 1973 Constitution or
its counterpart provision in the 1987 Constitution. (Philippine Coconut Producers Federation, Inc. v.
Republic of the Philippines, G.R. Nos. 277857-58, January 24, 2012, 633 SCRA 514)
IV. JUDICIAL REVIEW
Requisites for a Valid Judicial Inquiry
Like almost all powers conferred by the Constitution, the power of judicial review is
subject to limitations, to wit: (1) there must be an actual case or controversy calling for the
exercise of judicial power; (2) the person challenging the act must have standing to challenge
the validity of the subject act or issuance; otherwise stated, he must have a personal and
substantial interest in the case such that he has sustained, or will sustain, direct injury as a result
of its enforcement; (3) the question of constitutionality must be raised at the earliest
138
opportunity; and (4) the issue of constitutionality must be the very lis mota of the case. (Senate v.
Ermita, G.R. No. 169777, April 20, 2006; see also Garcia v. Executive Secretary, G.R. No. 157584,
April 2, 2009, 583 SCRA 520)
[Note: Even as we are left with no recourse but to bare our power to check an act of a coequal
branch of government - in this case the executive - we must abide by the stringent requirements for the
exercise of that power under the Constitution. Demetria v. Alba (232 Phil. 222 [1987]) and Francisco v. House
of Representatives (460 Phil. 830, 914 [2003]) cite the "pillars" of the limitations on the power of judicial
review as enunciated in the concurring opinion of U.S. Supreme Court Justice Brandeis in Ashwander v.
Tennessee Valley Authority. (297 U.S. 288, 346-348 [1936]). Francisco redressed these "pillars" under the
following categories:
1. That there be absolute necessity of deciding a case.
2. That rules of constitutional law shall be formulated only as required by the facts of the
case.
3. That judgment may not be sustained on some other ground.
4. That there be actual injury sustained by the party by reason of the operation of the
statute.
5. That the parties are not in estoppel.
6. That the Court upholds the presumption of constitutionality.]
Actual Case or Controversy
An actual case or controversy involves a conflict of legal rights, an assertion of opposite
legal claims susceptible of legal resolution. It must not be moot or academic or based on extralegal or other similar considerations not cognizable by a court of justice. A controversy must be
one that is appropriate for judicial determination. Requests for advisory opinions cannot come
under the category of an actual case or controversy since the issues raised do not involve any
conflict in law that has assumed the proportions of a full-blown dispute. xxx Pertinently, a
justiciable controversy refers to an existing case or controversy that is appropriate or ripe for
judicial determination, not one that is conjectural or merely anticipatory. Corollary thereto, by
"ripening seeds" it is meant, not that sufficient accrued facts may be dispensed with, but that a
dispute may be tried at its inception before it has accumulated the asperity, distemper,
animosity, passion, and violence of a full blown battle that looms ahead. The concept describes
a state of facts indicating imminent and inevitable litigation provided that the issue is not
settled and stabilized by tranquilizing declaration. (Republic of the Philippines v. Roque, G.R. No.
204603, September 24, 2013)
By the mere enactment of the questioned law or the approval of the challenged action,
the dispute is said to have ripened into a judicial controversy even without any other overt act.
Indeed, even a singular violation of the Constitution and/or the law is enough to awaken
judicial duty. (Pimentel v. Aguirre, G.R. No. 132988, July 19, 2000, 336 SCRA 201)
[Note: The United States Supreme Court held that the challenge to the constitutionality
of the school‘s policy allowing student-led prayers and speeches before games was ripe for
adjudication, even if no public prayer had yet been led under the policy, because the policy was
being challenged as unconstitutional on its face. [Santa Fe Independent School District v. Doe, 530
US 290])
139
[Note: That the law or act in question is not yet effective does not negate ripeness. When
an act of the President, who in our constitutional scheme is a coequal of Congress, is seriously
alleged to have infringed the Constitution and the laws, settling the dispute becomes the duty
and the responsibility of the courts. (The Province of North Cotabato v. The Government of the
Republic of the Philippines Peace Panel on Ancestral Domain, G.R. No. 183591, October 14, 2008)]
Mootness Principle
Indeed, with the writ of possession having been served and satisfied, the said motions
had ceased to present a justiciable controversy, and a declaration thereon would be of no
practical use or value. Judicial power presupposes actual controversies, the very antithesis of
mootness. Where there is no more live subject of controversy, the Court ceases to have a reason
to render any ruling or make any pronouncement. Courts generally decline jurisdiction on the
ground of mootness – save when, among others, a compelling constitutional issue raised
requires the formulation of controlling principles to guide the bench, the bar and the public; or
when the case is capable of repetition yet evading judicial review, which are not extant in this
case. (Madriaga v. China Banking Corporation, G.R. No. 192377, July 25, 2012)
Exceptions to the Mootness Principle
The ―moot and academic‖ principle is not a magical formula that can automatically
dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic,
if: first, there is a grave violation of the Constitution; second, the exceptional character of the
situation and the paramount public interest is involved; third, when 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. (David v. Macapagal-Arroyo, G.R. Nos.
171396, 171409, 171485, 171483, 171400, 171489 & 171424, May 3, 2006, 489 SCRA 161; see also
Constantino v. People, G.R. No. 140656, September 13, 2007; Radaza v. Court of Appeal, G.R. No.
177135, October 15, 2008; Gunsi v. COMELEC, G.R. No. 168792, February 23, 2009)
Constitutional Issues
Here, the consolidated cases are not rendered moot and academic by the promulgation
of the Joint Resolution by the Joint Committee and the approval thereof by the Comelec. It must
be recalled that the main issues in the three petitions before us are the constitutionality and
legality of the creation of the Joint Committee and the Fact-Finding Team as well as the
proceedings undertaken pursuant thereto. xxx Moreover, petitioners question the validity of the
proceedings undertaken by the Fact-Finding Team and the Joint Committee leading to the filing
of information, on constitutional grounds. We are not, therefore, barred from deciding on the
petitions simply by the occurrence of the supervening events of filing an information and
dismissal of the charges. (Arroyo v. Department of Justice, G.R. No. 199082, September 18, 2012)
Transcendental Importance
Recognizing that the petition is hinged on an important constitutional issue pertaining
to the right of suffrage, the Court views the matter as one of transcendental public importance
140
and of compelling significance. Consequently, it deems it proper to brush aside the foregoing
procedural barriers and instead, resolve the case on its merits. xxx. (Kabataan Party-List v.
Commission on Elections, G.R. No. 221318, December 16, 2015)
Technicalities should not stand in the way of resolving the substantive issues petitioners
raised herein. On this same ground of transcendental importance, the Court may opt to treat the
instant petition as one for certiorari under, not merely in relation to, Rule 65. (Querubin v.
Commission on Elections, G.R. No. 218787, December 8, 2015)
Need to Formulate Controlling Principles
The expiration of the term generally renders an election protest moot and academic
(Sales v. COMELEC, G.R. No. 174668, September 12, 2007; Gunsi v. COMELEC, G.R. No. 168792,
February 23, 2009) but said case may still be resolved for purposes of formulating controlling
principles to guide the bench, bar and the public (Atienza v. Villarosa, G. R. No. 161081, May 10,
2005, 458 SCRA 385)
Doctrine of “Capable of Repetition Yet Evading Review”
The doctrine of “capable of repetition yet evading review” can override mootness, ―provided
the party raising it in a proper case has been and/or continue to be prejudiced or damaged as a
direct result of their issuance.‖ xxx Thus, once a suit is filed and the doer voluntarily ceases the
challenged conduct, it does not automatically deprive the tribunal of power to hear and
determine the case and does not render the case moot especially when the plaintiff seeks
damages or prays for injunctive relief against the possible recurrence of the violation. (The
Province of North Cotabato v. The Government of the Republic of the Philippines Peace Panel on
Ancestral Domain, G.R No. 183591, October 14, 2008)
Other Exceptions
While this Court has withheld the application of facial challenges to strictly penal
statues, it has expanded its scope to cover statutes not only regulating free speech, but also
those involving religious freedom, and other fundamental rights. The underlying reason for
this modification is simple. For unlike its counterpart in the U.S., this Court, under its expanded
jurisdiction, is mandated by the Fundamental Law not only to settle actual controversies
involving rights which are legally demandable and enforceable, but also to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government. Verily, the framers of Our
Constitution envisioned a proactive Judiciary, ever vigilant with its duty to maintain the
supremacy of the Constitution. (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014, 721 SCRA 146)
The Supreme Court has further ruled that cases may nonetheless be resolved by courts
despite the demise of one of the accused, to prevent a miscarriage of justice against a co-accused
(Constantino v. People, G.R. No. 140656, September 13, 2007); or notwithstanding the separation
of the petitioner from government service, because other penalties may be imposed upon her. (Pagano
v. Nazarro, G.R. No. 149072, September 21, 2007)
141
Proper Party
A proper party is one who has sustained or is in immediate danger of sustaining an
injury as a result of the act complained of. (People v. Vera, 65 Phil. 56)
Direct injury test
A person who impugns the validity of a statute must have ―a personal and substantial
interest in the case such that he has sustained, or will sustain direct injury as a result.‖ (People v.
Vera, 65 Phil. 56) xxx. Even assuming arguendo that there is no direct injury, We find that the
liberal policy consistently adopted by this Court on locus standi must apply. The issues raised
by Fertiphil are of paramount public importance. It involves not only the constitutionality of a
tax law but, more importantly, the use of taxes for public purpose. (Planters Products Inc. v.
Fertiphil Corporation, G.R. No. 166006, March 14, 2008)
The following elements must be established for purposes of determining locus standi:
(1) the public character of the funds or other assets involved in the case, (2) the presence of a
clear case of disregard of a constitutional or statutory prohibition by the public respondent
agency or instrumentality of government, and (3) the lack of any other party with a more direct
and specific interest in raising the questions being raised. The presence of these elements MDOI
failed to establish, much less allege. (Senate v. Ermita, 488 SCRA 1)
Earliest Opportunity
The rule is that the constitutional question must be raised at the earliest possible
opportunity, such that if it is not raised in pleadings, it cannot be considered at trial and, if not
considered at trial, it cannot be considered on appeal. (See Matibag v. Benipayo, 429 Phil. 554,
578-579 (2002); Apex Mining Co., Inc. v. Southeast Mindanao Gold Mining Corporation, G.R. Nos.
152613 & 152628, November 20, 2009; ABS-CBN Broadcasting Corporation v. Phil. Multi-Media
Inc., G.R. Nos. 175769-70, January 19, 2009; Philippine National Bank v. Palma, G.R. No. 157279,
August 9, 2005; Philippine Veterans Bank v. Court of Appeals, G.R. No. 132561, June 30, 2005, 462
SCRA 336; Hacienda Luisita Incorporated v. Luisita Industrial Park Corporation, G.R. No. 171101,
July 5, 2011)
In criminal cases, constitutional question can be raised any time in the discretion of the
court. In civil cases, question can be raised at any stage if it is necessary to the determination of
the case itself. In every case, except where there is estoppel or laches (Tijam v. Sibonghanoy, 33
SCRA 29), the constitutional question may be raised at any stage if it involves the jurisdiction of
the court. (People v. Vera, 65 Phil. 56; People v. Munar, 53 SCRA 678; Summit Guaranty &
Insurance Co. v. Court of Appeals, G.R. No. 51535, December 14, 1981)
Necessity of Deciding Constitutional Questions
Every law has in its favor the presumption of validity. Unless and until a specific
provision of the law is declared invalid and unconstitutional, the same is valid and binding for
all intents and purposes. The mere absence of implementing rules cannot effectively invalidate
provisions of law, where a reasonable construction that will support the law may be given.
142
(Securities and Exchange Commission v. Interport Resources Corporation, G.R. No. 135808, October 6,
2008, 567 SCRA 354)
[Note: Judicial review of the constitutionality of a statute is not limited to an action "for
declaratory relief" and may be sought through any of the cognizable actions by courts of law.
However, for the court to exercise its power of judicial review, the constitutional issue "(a) must
be properly raised and presented in the case, and (b) its resolution is necessary to a
determination of the case, i.e., the issue of constitutionality must be the very lis
mota presented." Thus, a court will only pass upon the constitutionality of a statute "to the
extent that, it is directly and necessarily involved in a justiciable controversy and is essential to
the protection of the rights of the parties concerned." This is called the constitutional policy of
avoidance. Additionally, the issue of a statute's constitutionality can only be assailed through a
direct attack, with the purported unconstitutionality pleaded directly before the court. San
Miguel Brewery, Inc. v. Magno emphasized that a collateral attack—"an attack, made as an
incident in another action, whose purpose is to obtain a different relief"—on a presumably valid
law is forbidden by public policy. (Palencia v. People, G.R. No. 219560, July 1, 2020)]
Doctrine of Hierarchy of Courts
The 1987 Constitution and the Rules of Court promulgated, pursuant to its provisions,
granted us original jurisdiction over certain cases. In some instances, this jurisdiction is shared
with Regional Trial Courts (RTCs) and the Court of Appeals (CA). However, litigants do not
have unfettered discretion to invoke the Court's original jurisdiction. The doctrine of hierarchy
of courts dictates that, direct recourse to this Court is allowed only to resolve questions of law,
notwithstanding the invocation of paramount or transcendental importance of the action. This
doctrine is not mere policy, rather, it is a constitutional filtering mechanism designed to enable
the Court to focus on the more fundamental and essential tasks assigned to it by the highest law
of the land. (Gios-Samar, In. v. Department of Transportation and Communication and Civil Aviation
Authority, G.R. No. 217158, March 12, 2019, Jardeleza)
Aside from the special civil actions over which it has original Jurisdiction, the Court,
through the years, has allowed litigants to seek direct relief from it upon allegation of "serious
and important reasons." The Diocese of Bacolod v. Commission on Elections (Diocese) summarized
these circumstances in this wise: (1) when there are genuine issues of constitutionality that must
be addressed at the most immediate time; (2) when the issues involved are of transcendental
importance; (3) cases of first impression; (4) the constitutional issues raised are better decided
by the Court; (5) exigency in certain situations; (6) the filed petition reviews the act of a
constitutional organ; (7) when petitioners rightly claim that they had no other plain, speedy,
and adequate remedy in the ordinary course of law that could free them from the injurious
effects of respondents' acts in violation of their right to freedom of expression; [and] (8) the
petition includes questions that are "dictated by public welfare and the advancement of public
policy, or demanded by the broader interest of justice, or the orders complained of were found
to be patent nullities, or the appeal was considered as clearly an inappropriate remedy."
A careful examination of the jurisprudential bases of the foregoing exceptions would
reveal a common denominator - the issues for resolution of the Court are purely legal. Similarly,
the Court in Diocese decided to allow direct recourse in said case because, just like Angara, what
143
was involved was the resolution of a question of law, namely, whether the limitation on the size
of the tarpaulin in question violated the right to free speech of the Bacolod Bishop.
We take this opportunity to clarify that the presence of one or more of the so-called
"special and important reasons" is not the decisive factor considered by the Court in deciding
whether to permit the invocation, at the first instance, of its original jurisdiction over the
issuance of extraordinary writs. Rather, it is the nature of the question raised by the parties in
those "exceptions" that enabled us to allow the direct action before us. (Gios-Samar, In. v.
Department of Transportation and Communication and Civil Aviation Authority, G.R. No. 217158,
March 12, 2019, Jardeleza)
Review of Constitutional Questions
Standards of Judicial Review
There are three levels of scrutiny at which the Court reviews the constitutionality of a
classification embodied in a law: a) the deferential or rational basis scrutiny in which the
challenged classification needs only be shown to be rationally related to serving a legitimate state
interest; b) the middle-tier or intermediate scrutiny in which the government must show that the
challenged classification serves an important state interest and that the classification is at least
substantially related to serving that interest; and c) strict judicial scrutiny in which a legislative
classification which impermissibly interferes with the exercise of a fundamental right or operates to
the peculiar disadvantage of a suspect class is presumed unconstitutional, and the burden is upon
the government to prove that the classification is necessary to achieve a compelling state interest
and that it is the least restrictive means to protect such interest. (Serrano v. Gallant Maritime Services,
Inc, G.R. No. 167614, March 24, 2009, 582 SCRA 254)
The strict scrutiny review applies when a legislative classification impermissibly
interferes with the exercise of a fundamental right or operates to the peculiar class disadvantage
of a suspect class. The Government carries the burden to prove that the classification is
necessary to achieve a compelling state interest, and that it is the least restrictive means to
protect such interest. (Mosqueda v. Pilipino Banana Growers and Exporters Association, Inc., G.R.
No. 189185, August 16, 2016)]
Under the rational basis test, we shall: (1) discern the reasonable relationship between
the means and the purpose of the ordinance; and (2) examine whether the means or the
prohibition against aerial spraying is based on a substantial or reasonable distinction (Mosqueda
v. Pilipino Banana Growers and Exporters Association, Inc., G.R. No. 189185, August 16, 2016)
The rational basis scrutiny (also known as the rational relation test or rational basis test)
demands that the classification reasonably relate to the legislative purpose. The rational basis
test often applies in cases involving economics or social welfare, or to any other case not
involving a suspect class. (Mosqueda v. Pilipino Banana Growers and Exporters Association, Inc.,
G.R. No. 189185, August 16, 2016)
When the classification puts a quasi-suspect class at a disadvantage, it will be treated
under intermediate or heightened review. Classifications based on gender or illegitimacy
receives intermediate scrutiny. To survive intermediate scrutiny, the law must not only further
144
an important governmental interest and be substantially related to that interest, but the
justification for the classification must be genuine and must not depend on broad
generalizations. (Mosqueda v. Pilipino Banana Growers and Exporters Association, Inc., G.R. No.
189185, August 16, 2016)
Philippine jurisprudence has developed three (3) tests of judicial scrutiny to determine the
reasonableness of classifications. The strict scrutiny test applies when a classification
either (i) interferes with the exercise of fundamental rights, including the basic liberties
guaranteed under the Constitution, or (ii) burdens suspect classes. The intermediate scrutiny
test applies when a classification does not involve suspect classes or fundamental rights, but
requires heightened scrutiny, such as in classifications based on gender and legitimacy. Lastly,
the rational basis test applies to all other subjects not covered by the first two tests. (Samahan ng
mga Progresibong Kabataan (SPARK) v. Quezon City, G.R. No. 225442, August 8, 2017)
Effects of Declaration of Unconstitutionality
The orthodox view is specified in Norton v. Shelby Count (118 U.S. 425) where it was
declared that an unconstitutional act is not a law; it confers no rights; it imposes no duties; it
affords no protection; it creates no office; it is, in legal contemplation, inoperative, as if it had
not been passed.
Under the modern view, the court in passing upon the question of constitutionality, does
not annul or repeal the statute if it finds it in conflict with the Constitution. It simply refuses to
recognize it and determines the rights of the parties just as if such statute had no existence. (See
Springer v. Government of the Philippine Islands, 277 U.S. 189)
Doctrine of Operative Fact
Under the operative fact doctrine, the law is recognized as unconstitutional but the effects
of the unconstitutional law, prior to its declaration of nullity, may be left undisturbed as a
matter of equity and fair play. In fact, the invocation of the operative fact doctrine is an
admission that the law is unconstitutional. The operative fact doctrine is a rule of equity. As
such, it must be applied as an exception to the general rule that an unconstitutional law
produces no effects. It can never be invoked to validate as constitutional an unconstitutional
act. The operative fact doctrine never validates or constitutionalizes an unconstitutional law.
Under the operative fact doctrine, the unconstitutional law remains unconstitutional, but the
effects of the unconstitutional law, prior to its judicial declaration of nullity, may be left
undisturbed as a matter of equity and fair play. In short, the operative fact doctrine affects or
modifies only the effects of the unconstitutional law, not the unconstitutional law itself. (League
of Cities of the Philippines v. COMELEC, G.R. No. 176951, August 24, 2010)
Where a judicial interpretation declares a law unconstitutional or abandons a doctrinal
interpretation of such law, the Court, recognizing that acts may have been performed under the
impression of the constitutionality of the law or the validity of its interpretation, has
consistently held that such operative fact cannot be undone by the mere subsequent declaration
of the nullity of the law or its interpretation; thus, the declaration can only have a prospective
application. But where no law is invalidated nor doctrine abandoned, a judicial interpretation
145
of the law should be deemed incorporated at the moment of its legislation. (Castro v. Deloria,
G.R. No. 163586, January 27, 2009)
The operative fact doctrine does not only apply to laws subsequently declared
unconstitutional or unlawful, as it also applies to executive acts subsequently declared as
invalid. Bearing in mind that PARC Resolution No. 89-12-2 – an executive act – was declared
invalid in the instant case, the operative fact doctrine is clearly applicable. (Hacienda Luisita,
Incorporated v. Presidential Agrarian Reform Council, G.R. No. 171101, November 22, 2011)
[Note: The term ―executive act‖ is broad enough to encompass decisions of administrative bodies
and agencies under the executive department which are subsequently revoked by the agency in question
or nullified by the Court. xxx. A case in point is the concurrent appointment of Magdangal B. Elma
(Elma) as Chairman of the Presidential Commission on Good Government (PCGG) and as Chief
Presidential Legal Counsel (CPLC) which was declared unconstitutional by this Court in Public Interest
Center, Inc. v. Elma. (G.R. No. 138965, June 30, 2006, 494 SCRA 53) xxx the appointment of Elma as
Chairman of the PCGG and as CPLC is, without a question, an executive act. Prior to the declaration of
unconstitutionality of the said executive act, certain acts or transactions were made in good faith and in
reliance of the appointment of Elma which cannot just be set aside or invalidated by its subsequent
invalidation. (Public Interest Center, Inc. v. Elma., G.R. No. 138965, June 30, 2006, 494 SCRA 53, cited in
Hacienda Luisita, Incorporated v. Presidential Agrarian Reform Council, G.R. No. 171101, November 22, 2011)]
Partial Unconstitutionality
Also in deference to the doctrine of separation of powers, courts hesitate to declare a law
totally unconstitutional and, as long as it is possible, will salvage the valid portions thereof in
order to give effect to the legislative will.
Nevertheless, a declaration of partial unconstitutionality will be valid only if two
conditions concur, to wit: first, that the legislature is willing to retain the valid portions even if
the rest of the statute is declared illegal, and second, that the valid portions can stand
independently as a separate statute.
―Enough must remain to make an intelligible and valid statute which carries with it the
legislative intent. The void provision must be eliminated without causing results affecting the
main purpose of the act in a manner contrary to the intention of the legislature. The language
used in the invalid part of the statute can have no legal purpose or efficacy and what remains
must express the legislative will independently of the void part.‖ (Barrameda v. Moir, 25 Phil. 44)
Theory of Relative Constitutionality
The Theory of Relative Constitutionality provides that the ―constitutionality of a statute
cannot, in every instance, be determined by a mere comparison of its provisions with applicable
provisions of the Constitution, since the statute may be constitutionally valid as applied to one
set of facts and invalid in its application to another.‖ (Medill v. State, 477 N.W.2d 703 (Minn.
1991) (followed with reservations by, In re Cook, 138 B.R. 943 [Bankr. D. Minn. 1992]), cited in
Central Bank Employees Association v. Bangko Sentral ng Pilipinas and the Executive Secretary, G.R.
No. 148208, December 15, 2004)
146
A provision of law, initially valid, can become subsequently unconstitutional, on the
ground that its continued operation would violate the equal protection of the law. (Central Bank
Employees Association v. Bangko Sentral ng Pilipinas and the Executive Secretary, G.R. No.
148208, December 15, 2004)However, we are confronted with a unique situation. The law
passed incorporates the exact clause already declared as unconstitutional, without any
perceived substantial change in the circumstances. This may cause confusion on the part of the
National Labor Relations Commission and the Court of Appeals. At minimum, the existence of
Republic Act No. 10022 may delay the execution of the judgment in this case, further frustrating
remedies to assuage the wrong done to petitioner. Hence, there is a necessity to decide this
constitutional issue. (Sameer Overseas Placement Agency, Inc. v. Cabiles, G.R. No. 170139, August
5, 2014)
Thus, when a law or a provision of law is null because it is inconsistent with the
Constitution, the nullity cannot be cured by reincorporation or reenactment of the same or a
similar law or provision. A law or provision of law that was already declared unconstitutional
remains as such unless circumstances have so changed as to warrant a reverse conclusion.
(Sameer Overseas Placement Agency, Inc. v. Cabiles, G.R. No. 170139, August 5, 2014)
V. SUPERVISION OF COURTS
The Supreme Court shall have administrative supervision over all courts and the
personnel thereof. (Article VIII, Section 6)
The Members of the Supreme Court and judges of lower courts shall hold office during
good behavior until they reached the age of seventy years or become incapacitated to
discharge the duties of their office. The Supreme Court en banc shall have the power to
discipline judges of lower courts, or order their dismissal by a vote of a majority of the
Members who actually took part in the deliberations on the issues in the case and voted
thereon. (Article VIII, Section 11)
Jurisprudence has characterized administrative supervision as exclusive, noting that
only the Supreme Court can oversee the judges and court personnel's compliance with all laws,
rules and regulations. No other branch of government may intrude into this power, without
running afoul of the doctrine of separation of powers. (Ampong v. Civil Service Commission, CSCRegional Office No. 11, supra, at 303, citing Maceda v. Vasquez, G.R. No. 102781, April 22, 1993, 221
SCRA 464, cited in Re: COA Opinion on the Computation of the Appraised Value of the Properties
Purchased by the Retired Chief/Associate Justices of the Supreme Court, A.M. No. 11-7-10-SC, July 31,
2012; Garcia v. Miro, G.R. No. 167409, March 20, 2009, 582 SCRA 127; Ampong v. Civil Service
Commission, CSC-Regional Office No. 11, G.R. No. 167916, August 26, 2008, 563 SCRA 293; Judge
Caoibes, Jr. v. Hon. Ombudsman, 413 Phil. 717 (2001); and Fuentes v. Office of the OmbudsmanMindanao, G.R. No. 124295, October 23, 2001, 368 SCRA 36 )
It is true that the CSC has administrative jurisdiction over the civil service. However,
the Constitution provides that the Supreme Court is given exclusive administrative supervision
over all courts and judicial personnel. By virtue of this power, it is only the Supreme Court that
can oversee the judges‘ and court personnel‘s compliance with all laws, rules and regulations.
147
The bottom line is administrative jurisdiction over a court employee belongs to the Supreme
Court, regardless of whether the offense was committed before or after employment in the
judiciary. (Ampong v. Civil Sservice Commission, G.R. No. 167916, August 26, 2008)
The question is whether the CSC‘s disciplinary jurisdiction extends to court personnel in
view of Section 6, Article VIII of the 1987 Constitution. By virtue of this power, it is only the
Supreme Court that can oversee the judges‘ and court personnel‘s administrative compliance
with all laws, rules and regulations. No other branch of government may intrude into this
power, without running afoul of the doctrine of separation of powers. xxx in case of violation of
the Civil Service Law by a court personnel, the standard procedure is for the CSC to bring its
complaint against a judicial employee before the Office of the Court Administrator of the
Supreme Court. (Civil Service Commission v. Andal, G.R. No. 185749, December 16, 2009)
Section 5 (6), Article VIII of the 1987 Constitution empowers the Court to oversee all
matters relating to the effective supervision and management of all courts and personnel under
it. Recognizing this mandate, Memorandum Circular No. 26 of the Office of the President,
dated July 31, 1986, considers the Supreme Court exempt and with authority to promulgate its
own rules and regulations on foreign travels. Thus, the Court came out with OCA Circular No.
49-2003 (B). (Leave Division v. Heusdens, A.M. No. P-11-2927, December 13, 2011)
To ensure management of court dockets and to avoid disruption in the administration of
justice, OCA Circular No. 49-2003 requires a judge who wishes to travel abroad to submit,
together with his application for leave of absence duly recommended for approval by his
Executive Judge, a certification from the Statistics Division, Court Management Office of the
OCA, as to the condition of his docket, based on his Certificate of Service for the month
immediately preceding the date of his intended travel, that he has decided and resolved all
cases or incidents within three (3) months from date of submission, pursuant to Section 15(1)
and (2), Article VIII of the 1987 Constitution. (Office of Administrative Services – Office of the Court
Administrator v. Judge Macarine, A.M. No. MTJ-10-1770, July 18, 2012)
Personnel of the judiciary may be guilty of misconduct, regardless of whether or not
their actions are work-related, because they must always be beyond reproach so as to preserve
at all times the good name and standing of courts in the community. (Lorenzo v. Lopez, A.M. No.
2006-02-SC, October 15, 2007)
With respect to investigations conducted by the Office of the Ombudsman in a criminal
case against a judge, the Court, in Maceda v. Vasquez (G.R. No. 102781, April 22, 1993, 221 SCRA
464, 466-467), upheld its constitutional duty to exercise supervision over all inferior courts and
ruled that an investigation by the Office of the Ombudsman without prior referral of the
criminal case to the Court was an encroachment of a constitutional duty that ran afoul to the
doctrine of separation of powers. (Re: Request for Copy of 2008 Statement of Assets, Liabilities, and
Net Worth (SALN) and Personal Data Sheet or Curriculum Vitae of the Justices of the Supreme Court
and Officers and Employees of the Judiciary, A.M. No. 09-8-6-SC, June 13, 2012)
Under Section 6, Article VIII of the Constitution, it is the Supreme Court which is vested
with exclusive administrative supervision over all courts and its personnel. Prescinding from
this premise, the Ombudsman cannot determine for itself and by itself whether a criminal
148
complaint against a judge, or court employee, involves an administrative matter. The
Ombudsman is duty bound to have all cases against judges and court personnel filed before it,
referred to the Supreme Court for determination as to whether an administrative aspect is
involved therein. This rule should hold true regardless of whether an administrative case based
on the act subject of the complaint before the Ombudsman is already pending with the Court.
For, aside from the fact that the Ombudsman would not know of this matter unless he is
informed of it, he should give due respect for and recognition of the administrative authority of
the Court, because in determining whether an administrative matter is involved, the Court
passes upon not only administrative liabilities but also administrative concerns, as is clearly
conveyed in the case of Maceda v. Vasquez (221 SCRA 464[1993]). The Ombudsman cannot
dictate to, and bind the Court, to its findings that the case before it does or does not have
administrative implications. To do so is to deprive the Court of the exercise of its administrative
prerogatives and to arrogate unto itself a power not constitutionally sanctioned. This is a
dangerous policy which impinges, as it does, on judicial independence. Maceda is emphatic that
by virtue of its constitutional power of administrative supervision over all courts and court
personnel, from the Presiding Justice of the Court of Appeals down to the lowest municipal trial
court clerk, it is only the Supreme Court that can oversee the judges‘ and court personnel‘s
compliance with all laws, and take the proper administrative action against them if they commit
any violation thereof. No other branch of government may intrude into this power, without
running afoul of the doctrine of separation of powers. . (Re: Request for Copy of 2008 Statement of
Assets, Liabilities, and Net Worth (SALN) and Personal Data Sheet or Curriculum Vitae of the Justices
of the Supreme Court and Officers and Employees of the Judiciary, A.M. No. 09-8-6-SC, June 13, 2012)
Prescinding from the foregoing, it becomes apparent that this Court does not have
jurisdiction to impose the proper disciplinary action against civil registrars. While he is
undoubtedly a member of the Judiciary as Clerk of Court of the Shari'a Circuit Court, a review
of the subject complaint reveals that Mamiscal seeks to hold Abdullah liable for registering the
divorce and issuing the CRD pursuant to his duties as Circuit Registrar of Muslim divorces. It
has been said that the test of jurisdiction is the nature of the offense and not the personality of
the offender. The fact that the complaint charges Abdullah for ―conduct unbecoming of a court
employee‖ (sic) is of no moment. Well-settled is the rule that what controls is not the
designation of the offense but the actual facts recited in the complaint. Verily, unless jurisdiction
has been conferred by some legislative act, no court or tribunal can act on a matter submitted to
it. (Mamiscal v. Clerk of Court, A.M. No. SCC-13-18-J, July 1, 2015)
[Note: In view of the foregoing, the Court rules that the subject provision – which requires
retiring government employees to secure a prior clearance of pendency/non-pendency of administrative
case/s from, among others, the CSC – should not be made to apply to employees of the Judiciary. To
deem it otherwise would disregard the Court‘s constitutionally-enshrined power of administrative
supervision over its personnel. xxx. (Re: Request for Guidance/Clarification on Section 7, Rule III of Republic
Act No. 10154 Requiring Retiring Government Employees to Secure a Clearance of Pendency/Non-pendency of
Case/s from the Civil Service Commission, A.M. No. 13-09-08-SC, October 1, 2013)]
As Ombudsman, his investigatory powers are limited to complaints initiated against
officers and personnel of administrative agencies, as defined in Section 9(a) of the law. To that
extent, we agree with the petitioner's interpretation of the law that insofar as administrative
complaints are concerned, the courts, judges and their appurtenant judicial staff are outside the
149
Tanodbayan's investigatory power. The reason for such exclusion is quite evident: under
Section 6, Article 10 of the Constitution, it is the Supreme Court that exercises administrative
supervision over all courts and their personnel and, therefore, is the proper forum to which an
administrative complaints involving judges and the court's personnel should be lodged. (Orap
v. Sandiganbayan, G.R. Nos. L-50508-11, October 11, 1985)
VI. POWERS OF THE SUPREME COURT
Judicial Power
Article VIII
SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
SECTION 2. The Congress shall have the power to define, prescribe, and apportion the jurisdiction of
various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in
Section 5 hereof.
No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its
Members.
SECTION 4. xxx. (2) All cases involving the constitutionality of a treaty, international or executive
agreement, or law, which shall be heard by the Supreme Court en banc, and all other cases which
under the Rules of Court are required to be heard en banc, including those involving the
constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions,
ordinances, and other regulations, shall be decided with the concurrence of a majority of the Members
who actually took part in the deliberations on the issues in the case and voted thereon.
SECTION 5. The Supreme Court shall have the following powers:
(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls,
and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court
may provide, final judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation
is in question.
(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty
imposed in relation thereto.
150
(c) All cases in which the jurisdiction of any lower court is in issue.
(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.
(e) All cases in which only an error or question of law is involved.
[Note: SECTION 30. No law shall be passed increasing the appellate jurisdiction of the Supreme Court
as provided in this Constitution without its advice and concurrence. (Article VI)]
Article VII
SECTION 4. xxx. The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to
the election, returns, and qualifications of the President or Vice- President, and may promulgate its
rules for the purpose. xxx.
[Note: It is also beyond cavil that when the Supreme Court, as PET, resolves a presidential or
vice-presidential election contest, it performs what is essentially a judicial power… the present
Constitution has allocated to the Supreme Court, in conjunction with latter's exercise of judicial power
inherent in all courts, the task of deciding presidential and vice-presidential election contests, with full
authority in the exercise thereof. The power wielded by PET is a derivative of the plenary judicial power
allocated to courts of law, expressly provided in the Constitution. On the whole, the Constitution draws a
thin, but, nevertheless, distinct line between the PET and the Supreme Court… We have previously
declared that the PET is not simply an agency to which Members of the Court were designated. Once
again, the PET, as intended by the framers of the Constitution, is to be an institution independent, but not
separate, from the judicial department, i.e., the Supreme Court. (Macalintal v. Presidential Electoral Tribunal,
G.R. No. 191618, November 23, 2010 and June 7, 2011)]
SECTION 18. xxx. The Supreme Court may review, in an appropriate proceeding filed by any citizen,
the sufficiency of the factual basis of the proclamation of martial law or the suspension of the
privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty
days from its filing. xxx.
[Note: During the oral argument, the petitioners theorized that the jurisdiction of this Court
under the third paragraph of Section 18, Article VII is sui generis. It is a special and specific jurisdiction of
the Supreme Court different from those enumerated in Sections 1 and 5 of Article VIII. The Court agrees.
xxx. A plain reading of the afore-quoted Section 18, Article VII reveals that it specifically grants authority
to the Court to determine the sufficiency of the factual basis of the proclamation of martial law or
suspension of the privilege of the writ of habeas corpus. xxx. It could not have been the intention of the
framers of the Constitution that the phrase "in an appropriate proceeding" would refer to a Petition
for Certiorari pursuant to Section 1 or Section 5 of Article VIII. The standard of review in a petition
for certiorari is whether the respondent has committed any grave abuse of discretion amounting to lack or
excess of jurisdiction in the performance of his or her functions. Thus, it is not the proper tool to review
the sufficiency of the factual basis of the proclamation or suspension. It must be emphasized that under
Section 18, Article VII, the Court is tasked to review the sufficiency of the factual basis of the President's
exercise of emergency powers. Put differently, if this Court applies the standard of review used in a
petition for certiorari, the same would emasculate its constitutional task under Section 18, Article VII. xxx.
The jurisdiction of this Court is not restricted to those enumerated in Sections 1 and 5 of Article VIII. For
instance, its jurisdiction to be the sole judge of all contests relating to the election, returns, and
qualifications of the President or Vice-President can be found in the last paragraph of Section 4, Article
VII. The power of the Court to review on certiorari the decision, order, or ruling of the Commission on
151
Elections and Commission on Audit can be found in Section 7, Article IX(A). (Lagman v. Medialdea, G.R.
No. 231658, July 4, 2017)
Article IX-A
SECTION 7. Each Commission shall decide by a majority vote of all its Members any case or matter
brought before it within sixty days from the date of its submission for decision or resolution. A case or
matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or
memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise
provided by this Constitution or by law, any decision, order, or ruling of each Commission may be
brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a
copy thereof.
[Note: The jurisdiction of this Court is not restricted to those enumerated in Sections 1 and 5 of Article
VIII. For instance, its jurisdiction to be the sole judge of all contests relating to the election, returns, and
qualifications of the President or Vice-President can be found in the last paragraph of Section 4, Article
VII. The power of the Court to review on certiorari the decision, order, or ruling of the Commission on
Elections and Commission on Audit can be found in Section 7, Article IX(A). (Lagman v. Medialdea, G.R.
No. 231658, July 4, 2017)]
Powers (and Prerogatives or Privileges) of the Supreme Court
other than Judicial Power
Section 3. The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be
reduced by the legislature below the amount appropriated for the previous year and, after approval,
shall be automatically and regularly released.
[Note: In the case at bar, the veto of these specific provisions in the General Appropriations Act is
tantamount to dictating to the Judiciary how its funds should be utilized, which is clearly repugnant to
fiscal autonomy. The freedom of the Chief Justice to make adjustments in the utilization of the funds
appropriated for the expenditures of the judiciary, including the use of any savings from any particular
item to cover deficits or shortages in other items of the Judiciary is withheld. Pursuant to the
Constitutional mandate, the Judiciary must enjoy freedom in the disposition of the funds allocated to it in
the appropriations law. It knows its priorities just as it is aware of the fiscal restraints. The Chief Justice
must be given a free hand on how to augment appropriations where augmentation is needed. (Bengzon v.
Drilon, G.R. No. 103524, April 15, 1992, 208 SCRA 133)]
[Note: Congress could not have carved out an exemption for the GSIS from the payment of legal
fees without transgressing another equally important institutional safeguard of the Court‘s independence
- fiscal autonomy. (Re: Petition for Recognition of the Exemption of the Government Service Insurance System
(GSIS) for Payment of Legal Fees, id. at 209 citing Section 3, Article VIII of the Constitution, ―[t]he Judiciary
shall enjoy fiscal autonomy.‖) Fiscal autonomy recognizes the power and authority of the Court to levy,
assess and collect fees (Id., citing Bengzon v. Drilon, G.R. No. 103524, 15 April 1992, 208 SCRA 133, 150)
including legal fees. xxx. Any exemption from the payment of legal fees granted by Congress to
government-owned or controlled corporations and local government units will necessarily reduce the
JDF and the SAJF. Undoubtedly, such situation is constitutionally infirm for it impairs the Court‘s
guaranteed fiscal autonomy and erodes its independence. (In the Matter of Clarification of Exemption from
Payment of All Court and Sheriff’s Fees, A.M. No. 12-2-03-0, March 13, 2012)]
[Note: Allowing the President or his or her alter ego to dictate the allowances or benefits that may
be received by the officers and employees of the Constitutional and Fiscal Autonomy Group will
152
undermine their independence. This arrangement is repugnant to their autonomy enshrined by the
Constitution. As said in Velasco v. Commission on Audit, the grant or regulation of the grant of productivity
incentive allowance or similar benefits are in the exercise of the President‘s power of control over these
entities. Not being under the President‘s power of control, the Constitutional and Fiscal Autonomy
Group should be able to determine the allowances or benefits that suit the functions of the office.
(Maritime Industry Authority v. Commission on Audit, G.R. No. 185812, January 13, 2015)]
Section 5. xxx. (3) Assign temporarily judges of lower courts to other stations as public interest may
require. Such temporary assignment shall not exceed six months without the consent of the judge
concerned.
(4) Order a change of venue or place of trial to avoid a miscarriage of justice.
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal
assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for
the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not
diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasijudicial bodies shall remain effective unless disapproved by the Supreme Court.
Section 5 (5). xxx. Rules of procedure of special courts and quasi-judicial bodies shall remain effective
unless disapproved by the Supreme Court.
Each Commission en banc may promulgate its own rules concerning pleadings
and practice before it or before any of its offices. Such rules however shall not
diminish, increase, or modify substantive rights. (Article IX-A, Section 6)
[Note: The "Rules of the Sandiganbayan" were promulgated on January 10, 1979, and Rule XVIII
thereof expressly provides that they "shall take effect upon approval." The approval referred to can only
refer to approval by the Supreme Court. The Sandiganbayan has submitted its Rules to this Court. In the
absence of any action of approval or disapprobation from this Court the Sandiganbayan has to be guided
by the Rules of Court. We have reviewed the proceedings before the Sandiganbayan and we have not
found any indication therein of contravention of the Rules of Court. (De Guzman v. People, G.R. No. L54288 December 15, 1982, 119 SCRA 337)]
[Note: Under Section 9 of PD 1606, as amended by R.A. No. 7975, provides that the Rules of
Court promulgated by the Supreme Court shall apply to all cases and proceedings filed with the
Sandiganbayan. The Sandiganbayan shall have no power to promulgate its own rules of procedure,
except to adopt internal rules governing the allotment of cases among the division, the rotation of justices
among them, and other matters relating to the internal operations of the court which shall be enforced
until repealed or modified by the Supreme Court.)
[Note: Article VI, Section 16[3] provides, in part that ―Each House may determine the rules of its
proceedings.‖ Under Article VI, Section 21, it is further provided that ―The Senate or the House of
Representatives or any of its respective committees may conduct inquiries… in accordance with its duly
published rules of procedure.‖ Moreover, Article XI, Section 3[8] provides that ―The Congress shall
promulgate its rules on impeachment to effectively carry out the purposes of this section.‖]
The petition for a writ of amparo is a remedy available to any person whose right to life,
liberty and security is violated or threatened with violation by an unlawful act or omission of a
public official or employee, or of a private individual or entity. The writ shall cover extralegal
153
killings and enforced disappearances or threats thereof.
October 24, 2007)
(A.M. No. 07-9-12-SC, Section 1,
Since it is extant from the pleadings filed that what is involved is the issue of child
custody and the exercise of parental rights over a child, who, for all intents and purposes, has
been legally considered a ward of the State, the Amparo rule cannot be properly applied. To
reiterate, the privilege of the writ of amparo is a remedy available to victims of extra-judicial
killings and enforced disappearances or threats of a similar nature, regardless of whether the
perpetrator of the unlawful act or omission is a public official or employee or a private
individual. It is envisioned basically to protect and guarantee the right to life, liberty and
security of persons, free from fears and threats that vitiate the quality of life. (Yusay v. Segui,
G.R. No. 193652, August 5, 2014)
The writ of habeas data (A.M. No. 08-1-16-SC, February 2, 2008), which is not only
confined to cases of extralegal killings and enforced disappearances, is a remedy available to
any person whose right to privacy in life, liberty or security is violated or threatened by an
unlawful act or omission of a public official or employee, or of a private individual or entity
engaged in the gathering, collecting or storing of data or information regarding the person,
family, home and correspondence of the aggrieved party. It is an independent and summary
remedy designed to protect the image, privacy, honor, information, and freedom of information
of an individual, and to provide a forum to enforce one‘s right to the truth and to informational
privacy. It seeks to protect a person‘s right to control information regarding oneself, particularly
in instances in which such information is being collected through unlawful means in order to
achieve unlawful ends. (Gamboa v. Chan, G.R. No. 193636, July 24, 2012, 677 SCRA 385)
The writ of kalikasan is a remedy available to a natural or juridical person, entity
authorized by law, people‘s organization, non-governmental organization, or any public
interest group accredited by or registered with any government agency, on behalf of persons
whose constitutional right to a balanced and healthful ecology is violated, or threatened with
violation by an unlawful act or omission of a public official or employee, or private individual
or entity, involving environmental damage of such magnitude as to prejudice the life, health or
property of inhabitants in two or more cities or provinces. (Rules of Procedure for
Environmental Cases, Rule 7, Section 1)
[Note: The precautionary principle originated in Germany in the 1960s, expressing the normative
idea that governments are obligated to "foresee and forestall" harm to the environment. xxx. the
precautionary approach was codified under Principle 15, which reads: In order to protect the environment,
the precautionary approach shall be widely applied by States according to their capabilities. Where there
are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason
for postponing cost-effective measures to prevent environmental degradation. xxx. (International Service
for the Acquisition of Agri-Biotech Applications, Inc. v. Greenpeace Southeast Asia (Philippines), G.R. 209271,
December 8, 2015)]
Petitioners argue that to allow the transfer of custody of an accused to a foreign power is
to provide for a different rule of procedure for that accused, which would be violative of the
exclusive power of this Court to adopt rules of procedure for all courts in the Philippines. The
situation involved is not one in which the power of this Court to adopt rules of procedure is
curtailed or violated, but rather one in which, as is normally encountered around the world, the
154
laws (including rules of procedure) of one State do not extend or apply – except to the extent
agreed upon – to subjects of another State due to the recognition of extraterritorial immunity
given to such bodies as visiting foreign armed forces. Nothing in the Constitution prohibits
such agreements recognizing immunity from jurisdiction or some aspects of jurisdiction (such
as custody), in relation to long-recognized subjects of such immunity like Heads of State,
diplomats and members of the armed forces contingents of a foreign State allowed to enter
another State‘s territory. On the contrary, the Constitution states that the Philippines adopts the
generally accepted principles of international law as part of the law of the land. (Art. II, Sec. 2).
(Nicolas v. Romulo, G.R. No. 175888, February 11, 2009)
In conclusion, we hold that under the present law, members of the Philippine Bar
authorized by this Tribunal to practice law, and in good standing, may practice their profession
before the Patent Office, for the reason that much of the business in said office involves the
interpretation and determination of the scope and application of the Patent Law and other laws
applicable, as well as the presentation of evidence to establish facts involved; that part of the
functions of the Patent director are judicial or quasi-judicial, so much so that appeals from his
orders and decisions are, under the law, taken to the Supreme Court. (Philippine Lawyers’
Association v. Agrava, G.R. No. L-12426, February 16, 1959)
Section 5 (6) Appoint all officials and employees of the Judiciary in accordance with the Civil Service
Law.
Appointments made by the Supreme Court are, like all similar appointments made by
the other departments, required to be in accordance with the Civil Service Law.
[Note: Being a member of the fiscal autonomy group does not vest the agency with the authority
to reclassify, upgrade, and create positions without approval of the DBM. While the members of the
Group are authorized to formulate and implement the organizational structures of their respective offices
and determine the compensation of their personnel, such authority is not absolute and must be exercised
within the parameters of the Unified Position Classification and Compensation System established under
RA 6758 more popularly known as the Compensation Standardization Law. We therefore reiterate our
previous stand on the matter. [Cruz vs. Court of Appeals, G.R. No. 119155, dated January 30, 1996]
Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court
composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of
the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired
Member of the Supreme Court, and a representative of the private sector.
As a meaningful guidepost, jurisprudence provides the definition and scope of
supervision. It is the power of oversight, or the authority to see that subordinate officers
perform their duties. It ensures that the laws and the rules governing the conduct of a
government entity are observed and complied with. Supervising officials see to it that rules are
followed, but they themselves do not lay down such rules, nor do they have the discretion to
modify or replace them. If the rules are not observed, they may order the work done or redone,
but only to conform to such rules. They may not prescribe their own manner of execution of the
act. They have no discretion on this matter except to see to it that the rules are followed.
155
Based on this, the supervisory authority of the Court over the JBC covers the overseeing
of compliance with its rules. In this case, Jardeleza‘s principal allegations in his petition merit
the exercise of this supervisory authority. (Jardeleza v. Judicial and Bar Council, G.R. No. 213181,
August 19, 2014)
The conclusion of the Court is hinged on the following pivotal points:
1. There was a misapplication of the "unanimity rule" under Section 2, Rule 10 of JBC-009
as to Jardeleza‘s legal strategy in handling a case for the government.
2. While Jardeleza‘s alleged extra-marital affair and acts of insider trading fall within the
contemplation of a "question on integrity" and would have warranted the application of
the "unanimity rule," he was notafforded due process in its application.
3. The JBC, as the sole body empowered to evaluate applications for judicial posts,
exercises full discretion on its power to recommend nomineesto the President. The sui
generischaracter of JBC proceedings, however, is not a blanket authority to disregard the
due process under JBC-010.
4. Jardeleza was deprived of his right to due process when, contrary to the JBC rules, he
was neither formally informed of the questions on his integrity nor was provided a
reasonable opportunity to prepare his defense.
With the foregoing, the Court is compelled to rule that Jardeleza should have been
included in the shortlist submitted to the President for the vacated position of Associate Justice
Abad. This consequence arose not from the unconstitutionality of Section 2, Rule 10 of JBC-009,
per se, but from the violation by the JBC of its own rules of procedure and the basic tenets of
due process. By no means does the Court intend to strike down the "unanimity rule" as it
reflects the JBC‘s policy and, therefore, wisdom in its selection of nominees. Even so, the Court
refuses to turn a blind eye on the palpable defects in its implementation and the ensuing
treatment that Jardeleza received before the Council. True, Jardeleza has no vested right to a
nomination, but this does not prescind from the fact that the JBC failed to observe the minimum
requirements of due process. (Jardeleza v. Judicial and Bar Council, G.R. No. 213181, August 19,
2014)
VII. QUALIFICATIONS, DISQUALIFICATIONS AND SELECTION OF THE
PRESIDENT, SENATORS, MEMBERS OF THE HOUSE OF REPRESENTATIVES,
JUSTICES AND JUDGES, THE OMBUDSMAN and CONSTITUTIONAL
COMMISSIONERS
Qualifications
and Selection
156
Article VI
Section 3. No person shall be a Senator unless he is a natural-born citizen of the Philippines and, on
the day of the election, is at least thirty-five years of age, able to read and write, a registered voter, and
a resident of the Philippines for not less than two years immediately preceding the day of the election.
Section 6. No person shall be a Member of the House of Representatives unless he is a natural-born
citizen of the Philippines and, on the day of the election, is at least twenty-five years of age, able to
read and write, and, except the party-list representatives, a registered voter in the district in which he
shall be elected, and a resident thereof for a period of not less than one year immediately preceding
the day of the election.
Section 8. Unless otherwise provided by law, the regular election of the Senators and the
Members of the House of Representatives shall be held on the second Monday of May.
All qualifications for constitutional officers are continuing in character.
Thus, Senators and Members of the House of Representatives must be natural-born
citizens not only at the time of their election but during their entire tenure. (See Limkaichong v.
COMELEC, 583 SCRA 1)
[Note: However, in assailing the citizenship of the father, the proper proceeding should be in
accordance with Section 18 of Commonwealth Act No. 473… But it is only the State, through its
representatives designated by statute, through quo warranto proceedings, who may question his
citizenship for and in behalf of the State. [Limkaichong v. COMELEC, G.R. No. 179120, April 1, 2009, 594
SCRA 434)]
(2) The party-list representatives shall constitute twenty per centum of the total number of
representatives including those under the party list. For three consecutive terms after the ratification
of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as
provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural
communities, women, youth, and such other sectors as may be provided by law, except the religious
sector.
Sec. 8. Nominations of Party-List Representatives. - Each registered party, organization
or coalition shall submit to the COMELEC not later than forty-five (45) days before the
election a list of names, not less than five (5) from which party-list representatives shall
be chosen in case it obtains the required number of votes.
A person may be nominated in one (1) list only. Only persons who have given their
consent in writing may be named in the list. The list shall not include any candidate for
any elective office or person who has lost his bid for an elective office in the immediately
preceding election. No change of names or alteration of the order of nominees shall be
allowed after the same shall have been submitted to the COMELEC except in cases where
the nominee dies, or withdraws in writing, his nomination, becomes incapacitated in
which case the name of the substitute nominee shall be placed last in the list. Incumbent
sectoral representatives in the House of Representatives who are nominated in the partylist system shall not be considered resigned. (RA No. 7941)
157
A party-list nominee must have been, among others, a bona fide member of the party or
organization for at least ninety (90) days preceding the day of the election. Needless to say, bona
fide membership in the party-list group is a continuing qualification. We have ruled that
qualifications for public office, whether elective or not, are continuing requirements. They must
be possessed not only at the time of appointment or election, or of assumption of office, but
during the officer's entire tenure. (Lico v. Commission on Elections, G.R. No. 205505, September 29,
2015)
All qualifications for constitutional officers are also exclusive in character.
Sec. 36(g) of RA 9165, which requires candidates for senators to be certified illegal-drug
clean is unconstitutional because the list of constitutional qualifications is exclusive and may
not be ―enlarged‖ by Congress. (Social Justice Society v. Dangerous Drugs Board, 570 SCRA 410)
Section 2. No person may be elected President unless he is a natural-born citizen of the Philippines, a
registered voter, able to read and write, at least forty years of age on the day of the election, and a
resident of the Philippines for at least ten years immediately preceding such election. (Article VII)
Section 3. There shall be a Vice-President who shall have the same qualifications and term of office
and be elected with, and in the same manner, as the President. He may be removed from office in the
same manner as the President. (Article VII)
The Vice-President may be appointed as a Member of the Cabinet. Such appointment requires no
confirmation.
Section 7 (1). No person shall be appointed Member of the Supreme Court or any lower collegiate
court unless he is a natural-born citizen of the Philippines. A Member of the Supreme Court must be
at least forty years of age, and must have been for fifteen years or more, a judge of a lower court or
engaged in the practice of law in the Philippines. (Article VIII)
Section 7 (2). The Congress shall prescribe the qualifications of judges of lower courts, but no person
may be appointed judge thereof unless he is a citizen of the Philippines and a member of the
Philippine Bar. (Article VIII)
The Supreme Court shall be composed of a Chief Justice and fourteen Associate
Justices. It may sit en banc or in its discretion, in division of three, five, or seven
Members. Any vacancy shall be filled within ninety days from the occurrence thereof. (Article
VIII, Section 4 [1]))
The Members of the Supreme Court and judges of the lower courts shall be
appointed by the President from a list of at least three nominees prepared by the Judicial
and Bar Council for every vacancy. Such appointments need no confirmation. For the
lower courts, the President shall issue the appointments within ninety days from the submission
of the list. (Article VIII, Section 9)
A Member of the Judiciary must be a person of proven competence, integrity, probity, and
independence. (Article VIII, Section 7 [3])]
That is the situation here. In issuing the assailed policy, the JBC merely exercised its
discretion in accordance with the constitutional requirement and its rules that a member of the
158
Judiciary must be of proven competence, integrity, probity and independence.24"To ensure the
fulfillment of these standards in every member of the Judiciary, the JBC has been tasked to
screen aspiring judges and justices, among others, making certain that the nominees submitted
to the President are all qualified and suitably best for appointment. In this way, the appointing
process itself is shielded from the possibility of extending judicial appointment to the
undeserving and mediocre and, more importantly, to the ineligible or disqualified.‖ xxx.
Consideration of experience by JBC as one factor in choosing recommended appointees
does not constitute a violation of the equal protection clause. The JBC does not discriminate
when it employs number of years of service to screen and differentiate applicants from the
competition. The number of years of service provides a relevant basis to determine proven
competence which may be measured by experience, among other factors. (Villanueva v. Judicial
and Bar Council, G.R. No. 211833, April 7, 2015)
A Judicial and Bar Council is hereby created under the supervision of the
Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of
Justice, and a representative of the Congress as ex officio Members, a representative of
the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a
representative of the private sector. (Article VIII, Section 8 [1])
The (Judicial and Bar) Council shall have the principal function of
recommending appointees to the Judiciary. (Article VIII, Section 8 [5])
[Note: Contrary to the petitioner‘s contention, the assailed JBC policy need not be filed in the
ONAR because the publication requirement in the ONAR (University of the Philippines Law Center
Office of the National Administrative Register) is confined to issuances of administrative agencies under
the Executive branch of the government. Since the JBC is a body under the supervision of the Supreme
Court, it is not covered by the publication requirements of the Administrative Code. (Villanueva v. Judicial
and Bar Council, G.R. No. 211833, April 7, 2015)]
[Note; Nevertheless, the assailed JBC policy requiring five years of service as judges of first-level
courts before they can qualify as applicants to second-level courts should have been published. As a
general rule, publication is indispensable in order that all statutes, including administrative rules that are
intended to enforce or implement existing laws, attain binding force and effect. There are, however,
several exceptions to the requirement of publication, such as interpretative regulations and those merely
internal in nature, which regulate only the personnel of the administrative agency and not the public.
Neither is publication required of the so-called letters of instructions issued by administrative superiors
concerning the rules or guidelines to be followed by their subordinates in the performance of their duties.
(Villanueva v. Judicial and Bar Council, G.R. No. 211833, April 7, 2015)]
Section 1 (1). The civil service shall be administered by the Civil Service Commission composed of a
Chairman and two Commissioners who shall be natural-born citizens of the Philippines and, at the
time of their appointment, at least thirty-five years of age, with proven capacity for public
administration, and must not have been candidates for any elective position in the elections
immediately preceding their appointment. (Article IX-B)
Section 1 (1). There shall be a Commission on Elections composed of a Chairman and six
Commissioners who shall be natural-born citizens of the Philippines and, at the time of their
appointment, at least thirty-five years of age, holders of a college degree, and must not have been
candidates for any elective positions in the immediately preceding elections. However, a majority
159
thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in
the practice of law for at least ten years. (Article IX-C)
Section 1 (1). There shall be a Commission on Audit composed of a Chairman and two
Commissioners, who shall be natural-born citizens of the Philippines and, at the time of their
appointment, at least thirty-five years of age, Certified Public Accountants with not less than ten years
of auditing experience, or members of the Philippine Bar who have been engaged in the practice of
law for at least ten years, and must not have been candidates for any elective position in the elections
immediately preceding their appointment. At no time shall all Members of the Commission belong to
the same profession. (Article IX-D)
Civil Service Commission
The Chairman and the Commissioners shall be appointed by the President with the consent of
the Commission on Appointments for a term of seven years without reappointment. Of those
first appointed, the Chairman shall hold office for seven years, a Commissioner for five years,
and another Commissioner for three years, without reappointment. Appointment to any
vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member
be appointed or designated in a temporary or acting capacity. (Article IX-B, Section 2)
Commission on Elections
The Chairman and the Commissioners shall be appointed by the President with the consent of
the Commission on Appointments for a term of seven years without reappointment. Of those
first appointed, three Members shall hold office for seven years, two Members for five years,
and the last Members for three years, without reappointment. Appointment to any vacancy
shall be only for the unexpired term of the predecessor. In no case shall any Member be
appointed or designated in a temporary or acting capacity. (Article IX-C, Section 2)
Commission on Audit
The Chairman and the Commissioners shall be appointed by the President with the consent of
the Commission on Appointments for a term of seven years without reappointment. Of those
first appointed, the Chairman shall hold office for seven years, one Commissioner for five
years, and the other Commissioner for three years, without reappointment. Appointment to
any vacancy shall be only for the unexpired portion of the term of the predecessor. In no case
shall any Member be appointed or designated in a temporary or acting capacity. (Article IX-D,
Section 2)
―…the operation of the rotational plan requires two conditions, both indispensable to its
workability: (1) that the terms of the first three commissioners should start on a common date; and
(2) that any vacancy due to death, resignation or disability before the expiration of the term
should only be filled only for the unexpired balance of the term. Without satisfying these
conditions, the regularity of the intervals between appointments would be destroyed, and the
evident purpose of the rotation (to prevent that a four-year administration should appoint more
than one permanent and regular commissioner) would be frustrated.‖ (Republic v. Imperial, G.R.
No. L08684, March 31, 1955, 96 Phil. 770)
1. The appointment of members of any of the three constitutional commissions, after the
expiration of the uneven terms of office of the first set of commissioners, shall always be for a fixed term
of seven (7) years; an appointment for a lesser period is void and unconstitutional.
160
The appointing authority cannot validly shorten the full term of seven (7) years in case of the
expiration of the term as this will result in the distortion of the rotational system prescribed by the
Constitution.
2. Appointments to vacancies resulting from certain causes (death, resignation, disability or
impeachment) shall only be for the unexpired portion of the term of the predecessor, but such
appointments cannot be less than the unexpired portion as this will likewise disrupt the staggering of
terms laid down under Sec. 1(2), Art. IX(D).
3. Members of the Commission, e.g. COA, COMELEC or CSC, who were appointed for a full
term of seven years and who served the entire period, are barred from reappointment to any position in
the Commission. Corollarily, the first appointees in the Commission under the Constitution are also
covered by the prohibition against reappointment.
4. A commissioner who resigns after serving in the Commission for less than seven years is
eligible for an appointment to the position of Chairman for the unexpired portion of the term of the
departing chairman. Such appointment is not covered by the ban on reappointment, provided that the
aggregate period of the length of service as commissioner and the unexpired period of the term of the
predecessor will not exceed seven (7) years and provided further that the vacancy in the position of
Chairman resulted from death, resignation, disability or removal by impeachment. The Court clarifies
that ―reappointment‖ found in Sec. 1(2), Art. IX(D) means a movement to one and the same office
(Commissioner to Commissioner or Chairman to Chairman). On the other hand, an appointment
involving a movement to a different position or office (Commissioner to Chairman) would constitute a
new appointment and, hence, not, in the strict legal sense, a reappointment barred under the
Constitution.
5. Any member of the Commission cannot be appointed or designated in a temporary or acting
capacity. (Funa v. The Chairman, Commission on Audit, G.R. No. 192791, April 24, 2012)
Note the uniform qualifications for all Constitutional Commissioners, i.e., natural-born
citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age,
and must not have been candidates for any elective position in the elections immediately
preceding their appointment.
No candidate who lost in any election shall, within one year after such election, be
appointed to any office in the government or any GOCC or in any of their subsidiaries.
(Art. IX[B], Section 6)
Note the special qualification for commissioners of the Civil Service Commission, i.e.,
with proven capacity for public administration.
[Note: The chairman and commissioners of the Commission on Elections must be
holders of a college degree and a majority thereof, including the Chairman, shall be Members of
the Philippine Bar who have been engaged in the practice of law for at least ten years. Insofar as
the chairman and commissioners of the Commission on Audit are considered, it is required that
they be certified public accountants with not less than ten years of auditing experience, or
members of the Philippine Bar who have been engaged in the practice of law for at least ten
years. At no time shall all Members of the Commission on Audit belong to the same profession.]
161
Section 8. The Ombudsman and his Deputies shall be natural-born citizens of the Philippines, and at
the time of their appointment, at least forty years old, of recognized probity and independence, and
members of the Philippine Bar, and must not have been candidates for any elective office in the
immediately preceding election. The Ombudsman must have, for ten years or more, been a judge or
engaged in the practice of law in the Philippines. (Article XI)
Section 9. The Ombudsman and his Deputies shall be appointed by the President from a
list of at least six nominees prepared by the Judicial and Bar Council, and from a list of
three nominees for every vacancy thereafter. Such appointments shall require no
confirmation. All vacancies shall be filled within three months after they occur. (Article XI)
Disqualifications
and Inhibitions
Article VI
Section 4. The term of office of the Senators shall be six years and shall commence, unless otherwise
provided by law, at noon on the thirtieth day of June next following their election. No Senator shall
serve for more than two consecutive terms. Voluntary renunciation of the office for any length of time
shall not be considered as an interruption in the continuity of his service for the full term of which he
was elected.
Section 13. No Senator or Member of the House of Representatives may hold any other office or
employment in the Government, or any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries, during his term without forfeiting
his seat. Neither shall he be appointed to any office which may have been created or the emoluments
thereof increased during the term for which he was elected.
The first sentence pertains to Incompatible Offices. What is prohibited is the simultaneous
holding of the incompatible office. He may do so but he would automatically forfeit his seat.
But not every office should be considered incompatible – electoral tribunal or ex officio
membership in the Judicial and Bar Council, if it can be shown that the office is an extension of
the legislative position or is in aid of legislative duties.
The office of the PNRC Chairman is not a government office or an office in a
government-owned or controlled corporation for purposes of the prohibition in Section 13,
Article VI of the 1987 Constitution. However, since the PNRC Charter is void insofar as it
creates the PNRC as a private corporation, the PNRC should incorporate under the Corporation
Code and register with the Securities and Exchange Commission if it wants to be a private
corporation. (Liban v. Gordon, G.R. No. 175352, July 15, 2009)
The Boy Scouts of the Philippines is both a government instrumentality and a governmentowned or controlled corporation, attached to the Department of Education and Culture. (Boy
Scouts of the Philippines v. National Labor Relations Commission, G.R. No. 80767, April 22, 1991, 196
SCRA 176)
Section 17. The Senate and the House of Representatives shall each have an
Electoral Tribunal which shall be the sole judge of all contests relating to the
election, returns, and qualifications of their respective Members. Each
162
Electoral Tribunal shall be composed of nine Members, three of whom shall
be Justices of the Supreme Court to be designated by the Chief Justice, and the
remaining six shall be Members of the Senate or the House of Representatives, as
the case may be, who shall be chosen on the basis of proportional representation
from the political parties and the parties or organizations registered under the
party-list system represented therein. The senior Justice in the Electoral
Tribunal shall be its Chairman.
Section 8. (1) A Judicial and Bar Council is hereby created under the
supervision of the Supreme Court composed of the Chief Justice as ex officio
Chairman, the Secretary of Justice, and a representative of the Congress as ex
officio Members, a representative of the Integrated Bar, a professor of law, a
retired Member of the Supreme Court, and a representative of the private
sector. (Article VIII)
The second Sentence is about the Forbidden Office, which does not include or apply to
elective offices. The prohibition applies only during the term for which the legislator was
elected, when such office was created or its emoluments increased. After such term, and even if
the legislator is re-elected, the disqualification no longer applies and he may therefore be
appointed to the office.
Section 14. No Senator or Member of the House of Representatives may personally appear as counsel
before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative
bodies. Neither shall he, directly or indirectly, be interested financially in any contract with, or in any
franchise or special privilege granted by the Government, or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation, or its subsidiary,
during his term of office. He shall not intervene in any matter before any office of the Government for
his pecuniary benefit or where he may be called upon to act on account of his office.
The prohibition in the first sentence is against personal appearance as counsel. It can be
said that this inhibition applies only during the legislator‘s tenure.
A congressman who withdrew his appearance as counsel when the same was
questioned was not allowed to re-enter his appearance as counsel for himself after he had later
bought one share in the corporation he had earlier represented. (Puyat v. de Guzman, 113 SCRA
33)
The proscription against financial interest pertains to contracts from which the legislator
expects to derive some profit at the expense of the government. Note that this proscription
applies during the term of the legislator.
Allowing legislators to intervene in the various phases of project implementation – a
matter before another office of government – renders them susceptible to taking undue
advantage of their own office… insofar as its post-enactment features dilute congressional
oversight and violate Section 14, Article VI of the 1987 Constitution, thus impairing public
accountability, the 2013 PDAF Article and other forms of Congressional Pork Barrel of similar
nature are deemed as unconstitutional. (Belgica v. Executive Secretary, G.R. No. 208566,
November 19, 2013)
163
It can be said that this inhibition, i.e., to not intervene in any matter before any office of the
Government for his pecuniary benefit or where he may be called upon to act on account of his office,
applies also only during the legislator‘s tenure.
Article VII
Section 6. The President shall have an official residence. The salaries of the President and
Vice-President shall be determined by law and shall not be decreased during their tenure. No
increase in said compensation shall take effect until after the expiration of the term of the
incumbent during which such increase was approved. They shall not receive during their tenure
any other emolument from the Government or any other source.
Section 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants
shall not, unless otherwise provided in this Constitution, hold any other office or employment during
their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession,
participate in any business, or be financially interested in any contract with, or in any franchise, or
special privilege granted by the Government or any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid
conflict of interest in the conduct of their office.
The spouse and relatives by consanguinity or affinity within the fourth civil degree of the
President shall not, during his tenure, be appointed as Members of the Constitutional Commissions,
or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or
offices, including government-owned or controlled corporations and their subsidiaries.
The Congress may establish an independent economic and planning agency
headed by the President, which shall, after consultations with the appropriate public
agencies, various private sectors, and local government units, recommend to Congress,
and implement continuing integrated and coordinated programs and policies for
national development. xxx. (Article XII, Section 9)
The Vice-President may be appointed as a Member of the Cabinet. Such
appointment requires no confirmation. (Article VII, Section 3)
A Judicial and Bar Council is hereby created under the supervision of the
Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of
Justice, and a representative of the Congress as ex officio Members, a representative of the
Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a
representative of the private sector. (Article VIII, Section 8 [1])
The prohibition contained in Section 13, Article VII of the 1987 Constitution does not
apply to posts occupied by the Executive officials specified therein without additional
compensation in an ex-officio capacity as provided by law and as required by the primary
function of said official's office. (Civil Liberties Union v. Executive Secretary, G.R. No. 83896,
February 22, 1991, 194 SCRA 317)
Bautista being then the appointed Undersecretary of DOTC, she was thus covered by the
stricter prohibition under Section 13, Article VII and consequently she cannot invoke the
exception provided in Section 7, paragraph 2, Article IX-B where holding another office is
164
allowed by law or the primary functions of the position. Neither was she designated OIC of
MARINA in an ex-officio capacity, which is the exception recognized in Civil Liberties Union.
The prohibition against holding dual or multiple offices or employment under Section
13, Article VII of the 1987 Constitution was held inapplicable to posts occupied by the Executive
officials specified therein, without additional compensation in an ex-officio capacity as provided
by law and as required by the primary functions of said office. The reason is that these posts do
not comprise ―any other office‖ within the contemplation of the constitutional prohibition but
are properly an imposition of additional duties and functions on said officials. Apart from their
bare assertion that respondent Bautista did not receive any compensation when she was OIC of
MARINA, respondents failed to demonstrate clearly that her designation as such OIC was in an
ex-officio capacity as required by the primary functions of her office as DOTC Undersecretary for
Maritime Transport. The 1987 Constitution in prohibiting dual or multiple offices, as well as
incompatible offices, refers to the holding of the office, and not to the nature of the appointment or
designation, words which were not even found in Section 13, Article VII nor in Section 7, paragraph
2, Article IX-B. To ―hold‖ an office means to ―possess or occupy‖ the same, or ―to be in possession
and administration,‖ which implies nothing less than the actual discharge of the functions and
duties of the office. (Funa v. Ermita, G.R. No. 184740, February 11, 2010, 612 SCRA 308)
The designation of the members of the Cabinet to form the NPB does not violate the
prohibition contained in our Constitution as the privatization and restructuring of the electric
power industry involves the close coordination and policy determination of various
government agencies. xxx. This Court is not unmindful, however, that Section 48 of the EPIRA
is not categorical in proclaiming that the concerned Cabinet secretaries compose the NPB Board
only in an ex-officio capacity. It is only in Section 52 creating the Power Sector Assets and
Liabilities Management Corporation (PSALM) that they are so designated in an ex-officio
capacity. Nonetheless, this Court agrees with the contention of the Solicitor General that the
constitutional prohibition was not violated, considering that the concerned Cabinet secretaries
were merely imposed additional duties and their posts in the NPB do not constitute ―any other
office‖ within the contemplation of the constitutional prohibition. The delegation of the said
official to the respective Board of Directors were designation [sic] by Congress of additional
functions and duties to the officials concerned, i.e., they were designated as members of the
Board of Directors. Hence, Congress specifically intended that the position of member of the
Board of NPB shall be ex-officio or automatically attached to the respective offices of the
members composing the board. It is clear from the wordings of the law that it was the intention
of Congress that the subject posts will be adjunct to the respective offices of the official
designated to such posts. The foregoing discussion, notwithstanding, the concerned officials
should not receive any additional compensation pursuant to their designation as ruled in Civil
Liberties. (Betoy v. Board of Directors, National Power Corporation, G.R. Nos. 156556-57, October 4,
2011)
The designation of Agra as Acting Secretary of Justice concurrently with his position of
Acting Solicitor General was unconstitutional and void for being in violation of the
constitutional prohibition under Section 13, Article VII of the 1987 Constitution. Being
designated as the Acting Secretary of Justice concurrently with his position of Acting Solicitor
General, therefore, Agra was undoubtedly covered by Section 13, Article VII, whose text and
spirit were too clear to be differently read. Hence, Agra could not validly hold any other office
165
or employment during his tenure as the Acting Solicitor General, because the Constitution has
not otherwise so provided. (Funa v. Agra, G.R. No. 191644, February 19, 2013)
[Note: It was of no moment that Agra‘s designation was in an acting or temporary capacity. xxx.
The prohibition against dual or multiple offices being held by one official must be construed as to apply
to all appointments or designations, whether permanent or temporary, for it is without question that the
avowed objective of Section 13, is to prevent the concentration of powers in the Executive Department
officials, specifically the President, the Vice-President, the Members of the Cabinet and their deputies and
assistants. (Funa v. Agra, G.R. No. 191644, February 19, 2013)]
[Note: In this regard, the decision in Public Interest Center, Inc. v. Elma (G.R. Nos. 83896 and 83815,
February 22, 1991, 194 SCRA 317) adverted to the resolution issued on August 1, 1991 in Civil Liberties
Union v. The Executive Secretary (G.R. No. 83896, February 22, 1991, 194 SCRA 317), whereby the Court
held that the phrase ―the Members of the Cabinet, and their deputies or assistants‖ found in Section 13,
referred only to the heads of the various executive departments, their undersecretaries and assistant
secretaries, and did not extend to other public officials given the rank of Secretary, Undersecretary or
Assistant Secretary. (Funa v. Agra, G.R. No. 191644, February 19, 2013)]
Article VIII
Section 12. The Members of the Supreme Court and of other courts established by law shall not be
designated to any agency performing quasi-judicial or administrative functions.
Section 17. The Senate and the House of Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all contests relating to the election, returns, and
qualifications of their respective Members. Each Electoral Tribunal shall be composed of
nine Members, three of whom shall be Justices of the Supreme Court to be designated by the
Chief Justice, and the remaining six shall be Members of the Senate or the House of
Representatives, as the case may be, who shall be chosen on the basis of proportional
representation from the political parties and the parties or organizations registered under
the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be
its Chairman. (Article VI)
(6) The Senate shall have the sole power to try and decide all cases of impeachment.
When sitting for that purpose, the Senators shall be on oath or affirmation. When the
President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but
shall not vote. No person shall be convicted without the concurrence of two-thirds of all the
Members of the Senate. (Article XI, Section 3)
Article IX-A
Section 2. No member of a Constitutional Commission shall, during his tenure, hold any other office
or employment. Neither shall he engage in the practice of any profession or in the active management
or control of any business which, in any way, may be affected by the functions of his office, nor shall
he be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege
granted by the Government, any of its subdivisions, agencies, or instrumentalities, including
government-owned or controlled corporations or their subsidiaries . (Article IX-A)
The GSIS, PHILHEALTH, ECC and HDMF are vested by their respective charters with
various powers and functions to carry out the purposes for which they were created. While
powers and functions associated with appointments, compensation and benefits affect the
166
career development, employment status, rights, privileges, and welfare of government officials
and employees, the GSIS, PHILHEALTH, ECC and HDMF are also tasked to perform other
corporate powers and functions that are not personnel-related. All of these powers and
functions, whether personnel-related or not, are carried out and exercised by the respective
Boards of the GSIS, PHILHEALTH, ECC and HDMF. Hence, when the CSC Chairman sits as a
member of the governing Boards of the GSIS, PHILHEALTH, ECC and HDMF, he may exercise
these powers and functions, which are not anymore derived from his position as CSC
Chairman, such as imposing interest on unpaid or unremitted contributions, issuing guidelines
for the accreditation of health care providers, or approving restructuring proposals in the
payment of unpaid loan amortizations.
The Court also notes that Duque‘s designation as member of the governing Boards of
the GSIS, PHILHEALTH, ECC and HDMF entitles him to receive per diem, a form of additional
compensation that is disallowed by the concept of an ex officio position by virtue of its clear
contravention of the proscription set by Section 2, Article IX-A of the 1987 Constitution. This
situation goes against the principle behind an ex officio position, and must, therefore, be held
unconstitutional.
Apart from violating the prohibition against holding multiple offices, Duque‘s
designation as member of the governing Boards of the GSIS, PHILHEALTH, ECC and HDMF
impairs the independence of the CSC. Under Section 17, Article VII of the Constitution, the
President exercises control over all government offices in the Executive Branch. An office that is
legally not under the control of the President is not part of the Executive Branch. (Funa v. The
Chairman, Civil Service Commission, G.R. No. 191672, November 25, 2014)
Article XI
During their tenure, (the Ombudsman and his Deputies)
shall be subject to the same
disqualifications and prohibitions as provided for in Section 2 of Article 1X-A of this Constitution.
(Article XI, Section 8)
Section 8. The Ombudsman and his Deputies shall be natural-born citizens of the
Philippines, and at the time of their appointment, at least forty years old, of recognized
probity and independence, and members of the Philippine Bar, and must not have been
candidates for any elective office in the immediately preceding election. The Ombudsman must
have, for ten years or more, been a judge or engaged in the practice of law in the
Philippines.
Section 11. The Ombudsman and his Deputies shall serve for a term of seven years
without reappointment. They shall not be qualified to run for any office in the election
immediately succeeding their cessation from office.
[Note: Section 2. No member of a Constitutional Commission shall, during his tenure,
hold any other office or employment. Neither shall he engage in the practice of any
profession or in the active management or control of any business which, in any way,
may be affected by the functions of his office, nor shall he be financially interested,
directly or indirectly, in any contract with, or in any franchise or privilege granted by the
Government, any of its subdivisions, agencies, or instrumentalities, including
government-owned or controlled corporations or their subsidiaries. (Article IX-A)]
167
A sentence by final judgment for a crime involving moral turpitude is a ground for
disqualification under Section 12 of the Omnibus Election Code: xxx. Moral turpitude is defined
as everything which is done contrary to justice, modesty, or good morals; an act of baseness,
vileness or depravity in the private and social duties which a man owes his fellowmen, or to
society in general. Although not every criminal act involves moral turpitude, the Court is
guided by one of the general rules that crimes mala in se involve moral turpitude while crimes
mala prohibita do not. xxx. In Zari v. Flores (183 Phil. 27 [1979]), we likewise listed libel as one of
the crimes involving moral turpitude. xxx.In the present case, Pichay admits his conviction for
four counts of libel. xxx. Having been convicted of the crime of libel, Pichay is disqualified
under Section 12 of the Omnibus Election Code for his conviction for a crime involving moral
turpitude. xxx. Under Section 12, the disqualification shall be removed after the expiration of a
period of five years from his service of sentence. xxx. Thus, Pichay is disqualified to become a
Member of the House of Representatives until then. Considering his ineligibility due to his
disqualification under Section 12, which became final on 1 June 2009, Pichay made a false
material representation as to his eligibility when he filed his certificate of candidacy on 9
October 2012 for the 2013 elections. Pichay's disqualification under Section 12 is a material fact
involving the eligibility of a candidate under Sections 74 and 78 of the Omnibus Election Code.
xxx. In Fermin v. Comelec (595 Phil. 449 [2008]), we likened a proceeding under Section 78 to a
quo warranto proceeding under Section 253 of the Omnibus Election Code since they both deal
with the eligibility or qualification of a candidate, with the distinction mainly in the fact that a
Section 78 petition is filed before proclamation, while a petition for quo warranto is filed after
proclamation of the winning candidate. This is also similar to a quo warranto petition contesting
the election of a Member of the House of Representatives on the ground of ineligibility or
disloyalty to the Republic of the Philippines filed before the HRET. xxx. In the present case,
Pichay misrepresented his eligibility in his certificate of candidacy because he knew that he had
been convicted by final judgment for a crime involving moral turpitude. Thus, his
representation that he was eligible for elective public office constitutes false material
representation as to his qualification or eligibility for the office. (Ty-Delgado v. House of
Representatives Electoral Tribunal, G.R. No. 219603, January 26, 2016)
VIII. IMMUNITY OF THE PRESIDENT, PRIVILEGES OF SENATORS AND
MEMBERS OF THE HOUSE OF REPRESENTATIVES
At the outset, we stress the settled principle that a sitting head of state enjoys immunity
from suit during his actual tenure. (Kilusang Mayo Uno v. Aquino, G.R. No. 210761, June 28, 2016)
By no stretch of the imagination can these crimes, especially plunder which carries the
death penalty, be covered by the alleged mantle of immunity of a non-sitting president.
Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts
and wrapping him with the post-tenure immunity from liability for unlawful acts and
omissions. The rule is that unlawful acts of public officials are not acts of the State, and the
officer who acts illegally is not acting as such but stands in the same footing as any other
trespasser. (Estrada v. Desierto, G.R. Nos. 146710-15, 146738, March 2, 2001, 353 SCRA 452)
Settled is the doctrine that the President, during his tenure of office or actual
incumbency, may not be sued in any civil or criminal case, and there is no need to provide for it
168
in the Constitution or law. It will degrade the dignity of the high office of the President, the
Head of State, if he can be dragged into court litigations while serving as such. Furthermore, it
is important that he be freed from any form of harassment, hindrance or distraction to enable
him to fully attend to the performance of his official duties and functions. Unlike the legislative
and judicial branch, only one constitutes the executive branch and anything which impairs his
usefulness in the discharge of the many great and important duties imposed upon him by the
Constitution necessarily impairs the operation of the Government. (Rubrico v. Arroyo, G.R. No.
183871, February 18, 2010)
Conversely, this presidential privilege of immunity cannot be invoked by a non-sitting
president even for acts committed during his or her tenure. (Lozada v. Arroyo, G.R. Nos. 18437980, April 24, 2012)
[Note: Pursuant to the doctrine of command responsibility, the President, as the Commander-inChief of the AFP, can be held liable for affront against the petitioner‘s rights to life, liberty and security as
long as substantial evidence exist to show that he or she had exhibited involvement in or can be imputed
with knowledge of the violations, or had failed to exercise necessary and reasonable diligence in
conducting the necessary investigations required under the rules. The Court also stresses that rule that
the presidential immunity from suit exists only in concurrence with the president‘s incumbency.
(Rodriguez v. Macapagal Arroyo, G.R. No. 191805, November 15, 2011, citing Estrada v. Desierto, G.R. Nos.
146710-15, 146738, March 2, 2001, 353 SCRA 452)]
[Note; The President and the Vice-President can be respondents in election protests filed with the
Supreme Court as ―the sole judgethe sole judge of all contests relating to (their) election, returns, and
qualifications (Article Vii, Section 4), and can be respondents in impeachment suits (Article XI, Section2)]
At the time the present complaint was filed, respondents and three other commissioners
were all lawyers. As an impeachable officer who is at the same time a member of the Bar,
respondent Borra must first be removed from office via the constitutional route of impeachment
before he may be held to answer administratively for his supposed errant resolutions and
actions. (Marcoleta v. Borra, A.C. No. 7732, March 30, 2009)
At the outset, the Court, guided by its pronouncements in Jarque v. Ombudsman (A.C.
No. 4509, December 5, 1995, 250 SCRA xi), In Re: Raul M. Gonzales (A.M. No. 88-4-5433, April 15,
1988, 160 SCRA 771) and Cuenco v. Fernan (A.C. No. 3135, February 17, 1988, 158 SCRA 29), has
laid down the rule that an impeachable officer who is a member of the Bar cannot be disbarred
without first being impeached. (Marcoleta v. Borra, A.C. No. 7732, March 30, 2009)
X. PROCESS OF LEGISLATION
Section 26.
1.
Every bill passed by the Congress shall embrace only one subject which shall be expressed in
the title thereof.
Among the purposes of this provision is to prevent hodge-podge or log-rolling legislation, or
any act containing several subjects dealing with unrelated matters representing diverse
169
interests, the main object of such combination being to unite the members of the legislature who
favor any one of the subjects in support of the whole act.
[Note: Log-rolling legislation refers to the process in which several provisions supported by an
individual legislator or minority of legislators are combined into a single piece of legislation supported by
a majority of legislators on a quid pro quo basis: no one provision may command majority support, but
the total package will. (Belgica v. Executive Secretary, G.R. No. 208566, November 19, 2013)
It is also intended to prevent surprise or fraud upon the legislature, as in the case of Lidasan v. COMELEC
(21 SCRA 496), where a law entitled ―An Act Creating the Municipality of Dianaton in the Province of
Lanao del Sur‖ was annulled after it was shown that said municipality comprised not only barrios in
Lanao del Sur but also two municipalities dismembered from the adjacent province of Cotabato.
(Interestingly, even the Congressman from Cotabato voted in favor of the law, only to discover later the
prejudice to his province.)
Finally, this provision seeks to fairly apprise the people of the subjects of the legislation, as in PHILCONSA v.
Gimenez (15 SCRA 479), where the Supreme Court declared as unconstitutional a law innocently entitled
―An Act Amending Subsection (c), Section Twelve, of Commonwealth Act Numbered Thirty Hundred
Ninety Six‖ which was revealed upon closer examination to be a clandestine attempt of the Congress to
grant special retirement privileges to its members.]
[Note: The word ―Code‖ sufficiently alerts the people to the existence of the many varied if
related subjects the measure (so entitled) embraces.]
A law converting Mandaluyong into a city was assailed because it also created a
separate legislative district. The Supreme Court upheld the law stressing that the rule should be
given ―a practical rather than a technical construction. It should suffice ―if the title expresses the
general subject and all the provisions are germane to the general subject.‖ (Tobias v. Abalos, G.R.
No. 114783, December 3, 1994, 239 SCRA 106)
The requirement is satisfied if the title is comprehensive enough to include subjects
related to the general purpose which the statute seeks to achieve. The title of a law does not
have to be an index of its contents and will suffice if the matters embodied in the text are
relevant to each other and may be inferred from the title. Moreover, a title which declares a
statute to be an act to amend a specified code is sufficient and the precise nature of the
amendatory act need not be further stated. The assailed provisions are germane to the subject
matter of
RA 9369 which is to amend RA 7166 and BP 881, among others. (BANAT v.
COMELEC, G.R. No. 177508, August 7, 2009, 595 SCRA 477)
First, the title of RA No. 9164, ―An Act Providing for Synchronized Barangay and
Sangguniang Kabataang Elections, amending Republic Act No. 7160, as amended, otherwise
known as the Local Government Code of 1991,‖ states the law‘s general subject matter – the
amendment of the LGC to synchronize the barangay and SK elections and for other purposes.
To achieve synchronization of the barangay and SK elections, the reconciliation of the varying
lengths of the terms of office of barangay officials and SK officials is necessary. Second, the
congressional debates show that the legislators and the public they represent were fully
informed of the purposes, nature and scope of the law‘s provisions. Finally, to require the
inclusion of term limitation in the title of RA No. 9164 is to make the title an index of all the
170
subject matters dealt with by law; this is not what the constitutional requirement
contemplates. (COMELEC v. Cruz, G.R. No. 186616, November 20, 2009, 605 SCRA 167)
Before the Court is a special civil action for certiorari and prohibition assailing the
constitutionality of Section 12 (Substitution of Candidates) and Section 14 (Repealing Clause)
(also Section 67, on the ipso facto resignation of incumbents upon their filing of their certificates of
candidacy for other positions, except for President and Vice-President) of Republic Act No. (R.A.)
9006, otherwise known as the Fair Election Act… After a thorough review of the arguments
raised, we find that petitioner and petitioners-in-intervention were unable to present a
compelling reason that would surpass the strong presumption of validity and constitutionality
in favor of the Fair Election Act. They have not put forward any gripping justification to reverse
our ruling in Fariñas, in which we have already ruled that the title and the objectives of R.A.
9006 are comprehensive enough to include subjects other than the lifting of the ban on the use
of media for election propaganda. (Fariñas v. Executive Secretary, G.R. Nos. 147387 & 152161, 10
December 2003, 417 SCRA 503, cited in Giron v. Commission on Elections, G.R. No. 188179,
January 22, 2013, 689 SCRA 97)
… the assailed Section 12 (Substitution of Candidates) and Section 14 (Repealing Clause)
are indeed germane to the subject expressed in the title of R.A. 9006: An Act to Enhance the
Holding of Free, Orderly, Honest, Peaceful and Credible Elections through Fair Election
Practices. The title was worded broadly enough to include the measures embodied in the
assailed sections. Consequently, we dismiss the Petition and the petitions-in-intervention for
failure to establish a clear breach of the Constitution. (Giron v. Commission on Elections, G.R. No.
188179, January 22, 2013, 689 SCRA 97)
The RH Law does not violate the one subject/one bill rule… a textual analysis of the
various provisions of the law shows that both "reproductive health" and "responsible
parenthood" are interrelated and germane to the overriding objective to control the population
growth… Considering the close intimacy between "reproductive health" and "responsible
parenthood" which bears to the attainment of the goal of achieving "sustainable human
development" as stated under its terms, the Court finds no reason to believe that Congress
intentionally sought to deceive the public as to the contents of the assailed legislation. (Imbong v.
Ochoa, G.R. No. 204819, April 8, 2014)
2.
No bill passed by either House shall become a law unless it has passed three readings on
separate days, and printed copies thereof in its final form have been distributed to its
Members three days before its passage, except when the President certifies to the necessity of
its immediate enactment to meet a public calamity or emergency. Upon the last reading of a
bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately
thereafter, and the yeas and nays entered in the Journal.
(Note: Article VII, Section 10 - The Congress shall, at ten o'clock in the morning of the third day
after the vacancy in the offices of the President and Vice-President occurs, convene in
accordance with its rules without need of a call and within seven days, enact a law calling for a
special election to elect a President and a Vice-President to be held not earlier than forty-five
days nor later than sixty days from the time of such call. The bill calling such special election
shall be deemed certified under paragraph 2, Section 26, Article V1 of this Constitution and
171
shall become law upon its approval on third reading by the Congress. Appropriations for the
special election shall be charged against any current appropriations and shall be exempt from
the requirements of paragraph 4, Section 25, Article V1 of this Constitution. The convening of
the Congress cannot be suspended nor the special election postponed. No special election shall
be called if the vacancy occurs within eighteen months before the date of the next presidential
election.)
Presidential certification, e.g., economic emergency, does away with the requirements of
three readings on separate days and distribution of final copies three days before enactment.
(Tolentino v. Secretary of Finance, 235 SCR 630)
Although not provided for in the Constitution, Congress has established the so-called
Conference Committee, composed of representatives from the Senate and the House of
Representatives, which is a ―mechanism for compromising differences‖ between their
respective versions of a bill or joint resolution. It has been ruled that ―it is within the power of
a conference committee to include in its report an entirely new provision that is not found either
in the House bill or in the Senate bill.‖ (Philippine Judges Association v. Prado, G.R. No. 105371
November 11, 1993, 227 SCRA 203)
Moreover, ―if the committee can propose an amendment consisting of one or two
provisions, there is no reason why it cannot propose several provisions, collectively considered
as an ‗amendment in the nature of a substitute,‘ so long as such amendment is germane to the
subject of the bills before the committee. After all, its report was not final but needed the
approval of both houses of Congress to become valid as an act of the legislative department.
The charge that in this case the Conference Committee acted as a third legislative chamber is
thus without any basis.‖ (Tolentino v. Secretary of Finance, G. R. No. 115455, 235 SCRA 630)
[Note: It bears emphasis that whatever changes may be agreed upon by the Conference
Committee need not undergo another ―three readings‖ in the Senate and the House of Representatives.
―Art. VI, § 26(2) must, therefore, be construed as referring only to bills introduced for the first time in
either house of Congress, not to the conference committee report. For if the purpose of requiring three
readings is to give members of Congress time to study bills, it cannot be gainsaid that H. No. 11197 was
passed in the House after three readings; that in the Senate it was considered on first reading and then
referred to a committee of that body; that although the Senate committee did not report out the House
bill, it submitted a version (S. No. 1630) which it had prepared by ‗taking into consideration‘ the House
bill; that for its part the Conference Committee consolidated the two bills and prepared a compromise
version; that the Conference Committee Report was thereafter approved by the House and the Senate,
presumably after appropriate study by their members. We cannot say that, as a matter of fact, the
members of Congress were not fully informed of the provisions of the bill. The allegation that the
Conference Committee usurped the legislative power of Congress is, in our view, without warrant in fact
and in law.‖ (Tolentino v. Secretary of Finance, G. R. No. 115455, 235 SCRA 630; Datu Michael Abas Kida v.
Senate of the Philippines, 659 SCRA 270)]
Section 27.
1.
Every bill passed by the Congress shall, before it becomes a law, be presented to the President.
If he approves the same he shall sign it; otherwise, he shall veto it and return the same with
his objections to the House where it originated, which shall enter the objections at large in its
Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the
172
Members of such House shall agree to pass the bill, it shall be sent, together with the
objections, to the other House by which it shall likewise be reconsidered, and if approved by
two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes
of each House shall be determined by yeas or nays, and the names of the Members voting for
or against shall be entered in its Journal. The President shall communicate his veto of any bill
to the House where it originated within thirty days after the date of receipt thereof, otherwise,
it shall become a law as if he had signed it.
A bill becomes a law when (a) the President signs it; (b) when the President vetoes it (and
returns the same with his objections to the House where it originated) but the veto is overridden
by 2/3 vote of all the members of each House and (c) when the President does not act upon the
measure within 30 days after it shall have been presented to him.
(Note: Pocket Veto – when Congress adjourns during the period given to the President to approve or reject
a bill. This principle is not applicable in the Philippines.)
Every bill passed by Congress must be presented to the President for approval or veto. In
the absence of presentment to the President, no bill passed by Congress can become a law. (The
so-called ―rule on presentment‖ pertains to the submission of a bill to the President for his
appropriate action. (Article VI, 27 (1)) (Macalintal v. COMELEC, G.R. 157013, July 10, 2003;
Abakada Guro Party List v. Purisima, G.R. No. 166715 August 14, 2008)
2.
The President shall have the power to veto any particular item or items in an appropriation,
revenue, or tariff bill, but the veto shall not affect the item or items to which he does not
object.
Partial veto – the general rule is that the President is required to approve entirely or
disapprove in toto all bills presented to him, except with respect to appropriations bills, as
provided for in the second paragraph of Section 27 of Article VI.
Macapagal approved the appropriation but vetoed the condition attached to the same. The
Supreme Court considered his veto of the condition as invalid. (Bolinao Electronic Corporation v.
Valencia, 11 SCRA 486)
[Note: In contrast, what beckons constitutional infirmity are appropriations which merely provide for
a singular lump-sum amount to be tapped as a source of funding for multiple purposes. Since such
appropriation type necessitates the further determination of both the actual amount to be expended and
the actual purpose of the appropriation which must still be chosen from the multiple purposes stated in
the law, it cannot be said that the appropriation law already indicates a "specific appropriation of money
and hence, without a proper line-item which the President may veto.‖ As a practical result, the President
would then be faced with the predicament of either vetoing the entire appropriation if he finds some of
its purposes wasteful or undesirable, or approving the entire appropriation so as not to hinder some of its
legitimate purposes. (Belgica v. Executive Secretary, G.R. No. 208566, November 19, 2013)]
[Note: For the President to exercise his item-veto power, it necessarily follows that there
exists a proper "item" which may be the object of the veto. An item, as defined in the field of
appropriations, pertains to "the particulars, the details, the distinct and severable parts of the
appropriation or of the bill." Further, it is significant to point out that an item of appropriation
must be an item characterized by singular correspondence – meaning an allocation of a
173
specified singular amount for a specified singular purpose, otherwise known as a "line-item."
(Belgica v. Executive Secretary, G.R. No. 208566, November 19, 2013)]
[Note: Paragraph (1) refers to the general veto power of the President and if exercised would
result in the veto of the entire bill, as a general rule. Paragraph (2) is what is referred to as the item-veto
power or the line-veto power. It allows the exercise of the veto over a particular item or items in an
appropriation, revenue, or tariff bill. As specified, the President may not veto less than all of an item of an
Appropriations Bill. In other words, the power given the executive to disapprove any item or items in an
Appropriations Bill does not grant the authority to veto a part of an item and to approve the remaining
portion of the same item. xxx.
The terms item and provision in budgetary legislation and practice are concededly different. An
item in a bill refers to the particulars, the details, the distinct and severable parts . . . of the bill (Bengzon,
supra, at 916). It is an indivisible sum of money dedicated to a stated purpose (Commonwealth v.
Dodson, 11 S.E., 2d 120, 124, 125, etc., 176 Va. 281). The United States Supreme Court, in the case of
Bengzon v. Secretary of Justice (299 U.S. 410, 414, 57 S.Ct 252, 81 L. Ed., 312) declared "that an ‗item‘ of an
appropriation bill obviously means an item which in itself is a specific appropriation of money, not some
general provision of law, which happens to be put into an appropriation bill."
It is our considered opinion that, notwithstanding the elimination in Article VI, Section 27 (2) of the
1987 Constitution of any reference to the veto of a provision, the extent of the President‘s veto power as
previously defined by the 1935 Constitution has not changed. This is because the eliminated proviso
merely pronounces the basic principle that a distinct and severable part of a bill may be the subject of a
separate veto (Bengzon v. Secretary of Justice, 62 Phil., 912, 916 (1926); 2 BERNAS, Joaquin, S.J., The
Constitution of the Republic of the Philippines, 1st ed., 154-155, [1988]). xxx.
Considering that the vetoed provisions are not, in the budgetary sense of the term, conditions or
restrictions, the case of Bolinao Electronics Corporation v. Valencia (supra), invoked by petitioners,
becomes inapplicable. In that case, a public works bill contained an item appropriating a certain sum for
assistance to television stations, subject to the condition that the amount would not be available to places
where there were commercial television stations. Then President Macapagal approved the appropriation
but vetoed the condition. When challenged before this Court, it was held that the veto was ineffectual and
that the approval of the item carried with it the approval of the condition attached to it. In contrast with
the case at bar, there is no condition, in the budgetary sense of the term, attached to an appropriation or
item in the appropriation bill which was struck out. For obviously, Sections 55 (FY ‗89) and 16 (FY ‗90)
partake more of a curtailment on the power to augment from savings; in other words, "a general
provision of law, which happens to be put in an appropriation bill" (Bengzon v. Secretary of Justice, supra).
xxx.
When Sections 55 (FY ‗89) and 16 (FY ‗90), therefore, prohibit the restoration or increase by
augmentation of appropriations disapproved or reduced by Congress, they impair the constitutional and
statutory authority of the President and other key officials to augment any item or any appropriation
from savings in the interest of expediency and efficiency. The exercise of such authority in respect of
disapproved or reduced items by no means vests in the Executive the power to rewrite the entire budget,
as petitioners contend, the leeway granted being delimited to transfers within the department or branch
concerned, the sourcing to come only from savings.
More importantly, it strikes us, too, that for such a special power as that of augmentation from
savings, the same is merely incorporated in the General Appropriations Bill. An Appropriations Bill is
"one the primary and specific aim of which is to make appropriation of money from the public treasury"
174
(Bengzon v. Secretary of Justice, 292 U.S., 410, 57 S.Ct. 252). It is a legislative authorization of receipts and
expenditures. The power of augmentation from savings, on the other hand, can by no means be
considered a specific appropriation of money. It is a non-appropriation item inserted in an appropriation
measure.
The same thing must be said of Section 55 (FY ‗89), taken in conjunction with Section 12, and
Section 16 (FY ‗90), which prohibit the restoration or increase by augmentation of appropriations
disapproved and/or reduced by Congress. They are non-appropriation items, an appropriation being a
setting apart by law of a certain sum from the public revenue for a specific purpose (Bengzon v. Secretary
of Justice, 62 Phil. 912, 916 [1936]). It bears repeating that they are more of a substantive expression of a
legislative objective to restrict the power of augmentation granted to the President and other key officials.
They are actually matters of general law and more properly the subject of a separate legislation that will
embody, define and delimit the scope of the special power of augmentation from savings instead of being
inappropriately incorporated annually in the Appropriation Act. To sanction this practice would be to
give the Legislature the freedom to grant or withhold the power from the Executive and other officials,
and thus put in yearly jeopardy the exercise of that power.
If, indeed, by the later enactments of Section 55 (FY ‗89) and Section 16 (FY ‗90), Congress, as
petitioners argue, intended to amend or repeal Pres. Decree No. 1177, with all the more reason should it
have so provided in a separate enactment, it being basic that implied repeals are not favored. For the
same reason, we cannot subscribe to petitioners‘ allegation that Pres. Decree No. 1177 has been revoked
by the 1987 Constitution. The 1987 Constitution itself provides for the continuance of laws, decrees,
executive orders, proclamations, letters of instructions, and other executive issuances not inconsistent
with the Constitution until amended, repealed, or revoked (1987 Constitution, Article XVIII, Section 3).
If, indeed, the legislature believed that the exercise of the veto powers by the executive were
unconstitutional, the remedy laid down by the Constitution is crystal clear. A Presidential veto may be
overriden by the votes of two-thirds of members of Congress (1987 Constitution, Article VI, Section 27[1],
supra). But Congress made no attempt to override the Presidential veto. Petitioners‘ argument that the
veto is ineffectual so that there is "nothing to override" (citing Bolinao) has lost force and effect with the
executive veto having been herein upheld. (Gonzales v. Macaraig, G.R. No. 87636. November 19, 1990)]
[Note: Accordingly, the item referred to by Section 25(5) of the Constitution is the last and
indivisible purpose of a program in the appropriation law, which is distinct from the expense category or
allotment class. There is no specificity, indeed, either in the Constitution or in the relevant GAAs that the
object of augmentation should be the expense category or allotment class. In the same vein, the President
cannot exercise his veto power over an expense category; he may only veto the item to which that
expense category belongs to… Nonetheless, this modified interpretation does not take away the caveat
that only DAP projects found in the appropriate GAAs may be the subject of augmentation by legally
accumulated savings. (Araullo v. Aquino, G.R. No. 209287, February 3, 2015)]
Power of Appropriation
The appropriation must be for a public purpose.
See Pascual v. Secretary of Public Works (110 Phil. 331), where the Supreme Court nullified
an appropriation measure for the construction of a road inside a private subdivision, even if
said roads were subsequently turned over to the Philippine government. The property sought
to be improved with the public funds was private in nature at the time the appropriation was
175
made. The circumstance that the roads were later donated to the government did not cure the
basic defect of the appropriation as it was null and void ab initio.
[Note: Therefore, the use of LGU funds for the widening and improvement of privately-owned
sidewalks is unlawful as it directly contravenes Section 335 of RA 7160. This conclusion finds further
support from the language of Section 17 of RA 7160 which mandates LGUs to efficiently and effectively
provide basic services and facilities. The law speaks of infrastructure facilities intended primarily to
service the needs of the residents of the LGU and "which are funded out of municipal funds." It particularly
refers to "municipal roads and bridges" and "similar facilities." Applying the rules of ejusdem generis, the
phrase "similar facilities" refers to or includes infrastructure facilities like sidewalks owned by the LGU.
Thus, RA 7160 contemplates that only the construction, improvement, repair and maintenance of
infrastructure facilities owned by the LGU may be bankrolled with local government funds. Clearly, the
question of ownership of the open spaces (including the sidewalks) in Marikina Greenheights
Subdivision is material to the determination of the validity of the challenged appropriation and
disbursement made by the City of Marikina. Similarly significant is the character of the direct object of
the expenditure, that is, the sidewalks. Whether V.V. Soliven, Inc. has retained ownership of the open
spaces and sidewalks or has already donated them to the City of Marikina, and whether the public has
full and unimpeded access to the roads and sidewalks of Marikina Greenheights Subdivision, are factual
matters. There is a need for the prior resolution of these issues before the validity of the challenged
appropriation and expenditure can be determined. (Albon v. Fernando, G.R. No. 148357, June 30, 2006)]
The amount appropriated should be determinate or determinable.
An appropriation made by law under the contemplation of Section 29(1), Article VI of
the 1987 Constitution exists when a provision of law (a) sets apart a determinate or
determinable amount of money and (b) allocates the same for a particular public purpose… the
2013 PDAF Article cannot be properly deemed as a legal appropriation under the said
constitutional provision precisely because it contains post-enactment measures which
effectively create a system of intermediate appropriations. These intermediate appropriations
are the actual appropriations meant for enforcement and since they are made by individual
legislators after the GAA is passed, they occur outside the law… the real appropriation made
under the 2013 PDAF Article is not the P24.79 Billion allocated for the entire PDAF, but rather
the post-enactment determinations made by the individual legislators which are, to repeat,
occurrences outside of the law. .. the 2013 PDAF Article does not constitute an "appropriation
made by law" since it, in its truest sense, only authorizes individual legislators to appropriate in
violation of the non-delegability principle. (Belgica v. Executive Secretary, G.R. No. 208566,
November 19, 2013)
Section 24. All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills
of local application, and private bills, shall originate exclusively in the House of Representatives, but
the Senate may propose or concur with amendments.
An appropriation bill is one the primary and specific purpose of which is to authorize the
release of public funds from the treasury. (See Article VI, 29[1] – No money shall be paid out of
the Treasury except in pursuance of an appropriation made by law.) (Bengzon v. Secretary of
Justice, 299 U.S. 410)
176
A revenue bill is one that levies taxes and raises funds for the government (U.S. v.
Norton, 91 U.S. 566), while a tariff bill specifies the rates or duties to be imposed on imported
articles. (Black 4th rev. ed. 1628)
A bill increasing the public debt is illustrated by one floating bonds for public subscription
redeemable after a certain period.
A bill of local application is one involving purely local or municipal matters, like a charter
of a city.
Private bills are illustrated by a bill granting honorary citizenship to a distinguished
foreigner.
All of these bills must ―originate exclusively‖ from or must be initiated by the House of
Representatives, but the Senate has the power to propose or concur with amendments to such
bills initiated by the lower house, and may even introduce amendments by substitution, which
may entirely replace the bill initiated in the House of Representatives. (Tolentino v. Secretary of
Finance, 235 SCRA 630)
Section 25.
1.
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.
Under Section 22 of Article VII, 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.
The budget is only a proposal. The Congress may reduce the budget.
Section 3. The Judiciary shall enjoy fiscal autonomy. Appropriations for the
Judiciary may not be reduced by the legislature below the amount appropriated
for the previous year and, after approval, shall be automatically and regularly
released. (Article VIII)
2.
No provision or enactment shall be embraced in the general appropriations bill unless it relates
specifically to some particular appropriation therein. Any such provision or enactment shall be
limited in its operation to the appropriation to which it relates.
This provision prohibits ―riders‖ in general appropriations laws, as in the case of Garcia v. Mata (65
SCRA 520), where the Supreme Court annulled certain provisions incorporated in a general
appropriations law dealing with the activation and retirement of reserve officers of the Armed Forces.
(Note: Article VI, Section 26 (1) provides that ―Every bill passed by the Congress shall embrace only one
subject which shall be expressed in the title thereof.‖)
177
3.
4.
5.
The procedure in approving appropriations for the Congress shall strictly follow the procedure for
approving appropriations for other departments and agencies.
A special appropriations bill shall specify the purpose for which it is intended, and shall be
supported by funds actually available as certified by the National Treasurer, or to be raised by a
corresponding revenue proposal therein.
No law shall be passed authorizing any transfer of appropriations; however, the President, the
President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the
Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to
augment any item in the general appropriations law for their respective offices from savings in
other items of their respective appropriations.
It bears emphasizing that the exception in favor of the high officials named in Section
25(5), Article VI of the Constitution limiting the authority to transfer savings only to augment
another item in the GAA is strictly but reasonably construed as exclusive. (Nazareth v. Villar,
G.R. No. 188635, January 29, 2013, 689 SCRA 385)
―Clearly and indubitably, the prohibition against the transfer of appropriations is the
general rule. Consequently, the payment of the Magna Carta benefits for CY 2001 without a
specific item or provision in the GAA and without due authority from the President to utilize
the DOST‘s savings in other items for the purpose was repugnant to R.A. No. 8439, the
Constitution, and the re-enacted GAA for 2001.‖ (Nazareth v. Villar (689 SCRA 385)
The individual members of Congress may only determine the necessity of the
realignment of savings in the allotments for their operating expenses because they are in the
best position to know whether there are savings available in some items and whether there are
deficiencies in other items of their operating expenses that need augmentation. However, it is
the Senate President and the Speaker of the House of Representatives who shall approve the
realignment. (Philippine Constitution Association v. Enriquez, G.R. No. 113105, August 19, 1994,
235 SCRA 506)
The Chief of Staff of the Armed Forces of the Philippines may not be given authority to
transfer funds under this article because the realignment of savings to augment items in the
general appropriations law for the executive branch must and can be exercised only by the
President pursuant to a specific law. (Philippine Constitution Association v. Enriquez, G.R. No.
113105, August 19, 1994, 235 SCRA 506)
[Note: As compared to the previously quoted Article VIII, Section 3; Article IX, Part A,
Section 5; and Article XI, Section 14 of the 1987 Constitution on the Judiciary, the constitutional
commissions, and the Office of the Ombudsman, respectively, Article XIII, Section 17(4) on the
Commission of Human Rights (CHR) evidently does not contain the first sentence on the
express grant of fiscal autonomy, and reproduces only the second sentence on the automatic
and regular release of its approved annual appropriations. (Commission on Human Rights
Employees’ Association v. Commission on Human Rights, G.R. No. 155336, July 21, 2006, 528 Phil.
658, 675)]
[Note: Consequently, this Court concludes that the 1987 Constitution extends to
respondent a certain degree of fiscal autonomy through the privilege of having its approved
annual appropriations released automatically and regularly. However, it withholds from
178
respondent fiscal autonomy, in its broad or extensive sense, as granted to the Judiciary,
constitutional commissions, and the Office of the Ombudsman. Operative herein is the rule of
statutory construction, expressio unius est exclusio alterius, wherein the express mention of one
person, thing, or consequence implies the exclusion of all others. The rule proceeds from the
premise that the legislature (or in this case, the ConCom) would not have made specific
enumerations in a statute (or the Constitution) had the intention not been to restrict its meaning
and to confine its terms to those expressly mentioned. (Commission on Human Rights Employees’
Association v. Commission on Human Rights, G.R. No. 155336, July 21, 2006, 528 Phil. 658, 675)]
The Senate President and the Speaker of the House of Representatives, as the case may
be, shall approve the realignment (of savings). However, ―[B]efore giving their stamp of
approval, these two officials will have to see to it that: (1) The funds to be realigned or
transferred are actually savings in the items of expenditures from which the same are to be
taken; and (2) The transfer or realignment is for the purpose of augmenting the items of
expenditure to which said transfer or realignment is to be made.‖ (Philippine Constitution
Association v. Enriquez, G.R. No. 113105, August 19, 1994, 235 SCRA 506)
[Note: There are two essential requisites in order that a transfer of appropriation with the
corresponding funds may legally be effected. First, there must be savings in the programmed
appropriation of the transferring agency. Second, there must be an existing item, project or activity with
an appropriation in the receiving agency to which the savings will be transferred. (Sanchez v. Commission
on Audit, G.R. No. 127545, April 23, 2008, 552 SCRA 471)]
[Note: Under these provisions, the authority granted to the President was subject to two essential
requisites in order that a transfer of appropriation from the agency‘s savings would be validly effected.
The first required that there must be savings from the authorized appropriation of the agency. The
second demanded that there must be an existing item, project, activity, purpose or object of expenditure
with an appropriation to which the savings would be transferred for augmentation purposes only.
(Nazareth v. Villar, G.R. No. 188635, January 29, 2013, 689 SCRA 385)]
[Note: The funds which may, by law, be transferred should be from savings, and the transfer
should be for the purpose of augmenting the item to which the transfer is to be made. (Demetria v. Alba,
148 SCRA 208)]
Savings occur when estimated expenditures are not spent, e.g. ―(a) the PAPs (projects,
activities or programs) for which the appropriation had been authorized was completed, finally
discontinued, or abandoned; or (b) there were vacant positions and leaves of absence without
pay; or (c) the required or planned targets, programs and services were realized at a lesser cost
because of the implementation of measures resulting in improved systems and efficiencies.‖
The ―act or practice‖ of transferring funds ―prior to the end of the fiscal year,‖ which did not
meet any of those three instances, is unconstitutional. (Araullo v. Aquino, G.R. No. 209287, July 1,
2014)
Thus, while there may be no specific amount earmarked for the IAD-ODESLA from the
total amount appropriated by Congress in the annual budget for the Office of the President, the
necessary funds for the IAD-ODESLA may be properly sourced from the President's own office
budget without committing any illegal appropriation. After all, there is no usurpation of the
legislature's power to appropriate funds when the President simply allocates the existing funds
179
previously appropriated by Congress for his office. (Pichay v. Office of the Deputy Executive
Secretary for Legal Affairs Investigative and Adjudication Division, G.R. No. 196425, July 24, 2012,
677 SCRA 408)
6.
Discretionary funds appropriated for particular officials shall be disbursed only for public
purposes to be supported by appropriate vouchers and subject to such guidelines as may be
prescribed by law.
7.
If, by the end of any fiscal year, the Congress shall have failed to pass the general appropriations
bill for the ensuing fiscal year, the general appropriations law for the preceding fiscal year shall
be deemed re-enacted and shall remain in force and effect until the general appropriations bill is
passed by the Congress.
Section 29.
1.
No money shall be paid out of the Treasury except in pursuance of an appropriation made by
law.
Article VI Section 29 (1) of the 1987 Constitution firmly declares that: "No money shall be
paid out of the Treasury except in pursuance of an appropriation made by law." This
constitutional edict requires that the GAA be purposeful, deliberate, and precise in its
provisions and stipulations. As such, the requirement under Section 20 of R.A. No. 8439 that the
amounts needed to fund the Magna Carta benefits were to be appropriated by the GAA only
meant that such funding must be purposefully, deliberately, and precisely included in the GAA.
The funding for the Magna Carta benefits would not materialize as a matter of course simply by
fiat of R.A. No. 8439, but must initially be proposed by the officials of the DOST as the
concerned agency for submission to and consideration by Congress. That process is what
complies with the constitutional edict. R.A. No. 8439 alone could not fund the payment of the
benefits because the GAA did not mirror every provision of law that referred to it as the source
of funding. It is worthy to note that the DOST itself acknowledged the absolute need for the
appropriation in the GAA. Otherwise, Secretary Uriarte, Jr. would not have needed to request
the OP for the express authority to use the savings to pay the Magna Carta benefits. (Nazareth v.
Villar, G.R. No. 188635, January 29, 2013)
2.
No public money or property shall be appropriated, applied, paid, or employed, directly or
indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian
institution, or system of religion, or of any priest, preacher, minister, other religious teacher, or
dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the
armed forces, or to any penal institution, or government orphanage or leprosarium.
This provision ―does not inhibit the use of public property for religious purposes when the
religious character of such use is merely incidental to a temporary use which is available
indiscriminately to the public.‖ (People v. Fernandez, C.A. G.R. No. L01128 [1945])
Stamp featuring map of the Philippines, promoting the country as a tourism destination in
relation to a religious event was considered by the Supreme Court as not unlawful, since,
among others, it focused on the tourism aspect of the event, not its religious aspect. (Aglipay v.
Ruiz, 64 Phil. 201)
180
Religious image bought with private funds by a barangay official not unlawful. (Garces v.
Estenzo, 104 SCRA 510)
There will be no violation of the establishment clause if, first, the statute has a secular
legislative purpose; second, its principal or primary effect is one that neither advances nor
inhibits religion; and third, it does not foster an ―excessive government entanglement with
religion.‖ (Lemon v. Kurtzman, 403 U.S. 602)
3.
All money collected on any tax levied for a special purpose shall be treated as a special fund
and paid out for such purpose only. If the purpose for which a special fund was created has
been fulfilled or abandoned, the balance, if any, shall be transferred to the general funds of
the Government.
Section 30. No law shall be passed increasing the appellate jurisdiction of the Supreme Court as
provided in this Constitution without its advice and concurrence.
Taking all the foregoing circumstances in their true legal roles and effects, therefore,
Section 27 of Republic Act No. 6770 cannot validly authorize an appeal to this Court from
decisions of the Office of the Ombudsman in administrative disciplinary cases. It consequently
violates the proscription in Section 30, Article VI of the Constitution against a law which
increases the Appellate jurisdiction of this Court. xxx. As a consequence of our ratiocination that
Section 27 of Republic Act No. 6770 should be struck down as unconstitutional, and in line with
the regulatory philosophy adopted in appeals from quasi-judicial agencies in the 1997 Revised
Rules of Civil Procedure, appeals from decisions of the Office of the Ombudsman in
administrative disciplinary cases should be taken to the Court of Appeals under the provisions
of Rule 43. (Fabian v. Desierto, G.R. No. 129742, September 16, 1998, 295 SCRA 470)
Section 27 of R.A. No. 6770 had the effect, not only of increasing the appellate
jurisdiction of this Court without its advice and concurrence in violation of Section 30, Article
VI of the Constitution; it was also inconsistent with Section 1, Rule 45 of the Rules of Court
which provides that a petition for review on certiorari shall apply only to a review of
―judgments or final orders of the Court of Appeals, the Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court, or other courts authorized by law.‖ (Ruivivar v. Ombudsman,
G.R. No. 165012, September 16, 2008)
Since the second paragraph of Section 14, RA 6770 limits the remedy against ―decision
or findings‖ of the Ombudsman to a Rule 45 appeal and thus – similar to the fourth paragraph
of Section 27, RA 6770 – attempts to effectively increase the Supreme Court‘s appellate
jurisdiction without its advice and concurrence, it is therefore concluded that the former
provision is also unconstitutional and, perforce, invalid. (Carpio-Morales v. Court of Appeals, G.R.
No. 217126-27, November 10, 2015)
Section 31. No law granting a title of royalty or nobility shall be enacted.
Section 32. The Congress shall, as early as possible, provide for a system of initiative and referendum,
and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or
reject any act or law or part thereof passed by the Congress or local legislative body after the
registration of a petition therefor signed by at least ten per centum of the total number of registered
181
voters, of which every legislative district must be represented by at least three per centum of the
registered voters thereof.
Republic Act No. 6735
Sec. 3. Definition of Terms. — For purposes of this Act, the following terms shall mean:
(a) "Initiative" is the power of the people to propose amendments to the Constitution or to
propose and enact legislations through an election called for the purpose.
There are three (3) systems of initiative, namely:
a.1 Initiative on the Constitution which refers to a petition proposing
amendments to the Constitution;
a.2. Initiative on statutes which refers to a petition proposing to enact a
national legislation; and
a.3. Initiative on local legislation which refers to a petition proposing to
enact a regional, provincial, city, municipal, or barangay law, resolution
or ordinance.
(b) "Indirect initiative" is exercise of initiative by the people through a proposition sent
to Congress or the local legislative body for action.
(c) "Referendum" is the power of the electorate to approve or reject a legislation through
an election called for the purpose. It may be of two classes, namely:
c.1. Referendum on statutes which refers to a petition to approve or reject
an act or law, or part thereof, passed by Congress; and
c.2. Referendum on local law which refers to a petition to approve or
reject a law, resolution or ordinance enacted by regional assemblies and
local legislative bodies.
(d) "Proposition" is the measure proposed by the voters.
(e) "Plebiscite" is the electoral process by which an initiative on the Constitution is
approved or rejected by the people.
(f) "Petition" is the written instrument containing the proposition and the required
number of signatories. It shall be in a form to be determined by and submitted to the
Commission on Elections, hereinafter referred to as the Commission. xxx.
Sec. 10. Prohibited Measures. — The following cannot be the subject of an initiative or
referendum petition:
182
(a) No petition embracing more than one (1) subject shall be submitted to the electorate;
and
(b) Statutes involving emergency measures, the enactment of which are specifically vested
in Congress by the Constitution, cannot be subject to referendum until ninety (90) days after
its effectivity.
Sec. 11. Indirect Initiative. — Any duly accredited people's organization, as defined by law,
may file a petition for indirect initiative with the House of Representatives, and other legislative
bodies. The petition shall contain a summary of the chief purposes and contents of the bill that
the organization proposes to be enacted into law by the legislature.
The procedure to be followed on the initiative bill shall be the same as the enactment of any
legislative measure before the House of Representatives except that the said initiative bill shall
have precedence over the pending legislative measures on the committee. xxx
III
Local Initiative and Referendum
Sec. 13. Procedure in Local Initiative. — (a) Not less than two thousand (2,000) registered voters
in case of autonomous regions, one thousand (1,000) in case of provinces and cities, one
hundred (100) in case of municipalities, and fifty (50) in case of barangays, may file a petition
with the Regional Assembly or local legislative body, respectively, proposing the adoption,
enactment, repeal, or amendment, of any law, ordinance or resolution.
(b) If no favorable action thereon is made by local legislative body within (30) days from
its presentation, the proponents through their duly authorized and registered
representative may invoke their power of initiative, giving notice thereof to the local
legislative body concerned.
(c) The proposition shall be numbered serially starting from one (1). The Secretary of
Local Government or his designated representative shall extend assistance in the
formulation of the proposition.
(d) Two or more propositions may be submitted in an initiative. xxx.
Sec. 15. Limitations on Local Initiatives. — (a) The power of local initiative shall not be
exercised more than once a year.
(b) Initiative shall extend only to subjects or matters which are within the legal powers
of the local legislative bodies to enact.
(c) If at any time before the initiative is held, the local legislative body shall adopt in toto the
proposition presented, the initiative shall be cancelled. However, those against such action
may, if they so desire, apply for initiative in the manner herein provided.
Sec. 16. Limitations Upon Local Legislative Bodies. — Any proposition or ordinance or
resolution approved through the system of initiative and referendum as herein provided shall
183
not be repealed, modified or amended, by the local legislative body concerned within six (6)
months from the date therefrom, and may be amended, modified or repealed by the local
legislative body within three (3) years thereafter by a vote of three-fourths (3/4) of all its
members: Provided, however, that in case of barangays, the period shall be one (1) year after the
expiration of the first six (6) months.
XI. NATURAL RESOURCES
(NATIONALIZATION PRINCIPLE FOR NATURAL RESOURCES AND
ECONOMIC ACTIVITIES)
The principles and state policies enumerated in Article II and some sections of Article
XII are not self-executing provisions. (Bureau of Fisheries v. Commission on Audit, G.R. No. 169815,
August 13, 2008)
Section 1. The goals of the national economy are a more equitable distribution of opportunities,
income, and wealth; a sustained increase in the amount of goods and services produced by the nation
for the benefit of the people; and an expanding productivity as the key to raising the quality of life for
all, especially the underprivileged.
The State shall promote industrialization and full employment based on sound agricultural
development and agrarian reform, through industries that make full of efficient use of human and
natural resources, and which are competitive in both domestic and foreign markets. However, the
State shall protect Filipino enterprises against unfair foreign competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given
optimum opportunity to develop. Private enterprises, including corporations, cooperatives, and
similar collective organizations, shall be encouraged to broaden the base of their ownership.
Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception of agricultural lands, all other natural resources
shall not be alienated. The exploration, development, and utilization of natural resources shall be
under the full control and supervision of the State. The State may directly undertake such activities, or
it may enter into co-production, joint venture, or production-sharing agreements with Filipino
citizens, or corporations or associations at least 60 per centum of whose capital is owned by such
citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not
more than twenty-five years, and under such terms and conditions as may provided by law. In cases of
water rights for irrigation, water supply, fisheries, or industrial uses other than the development of
waterpower, beneficial use may be the measure and limit of the grant.
The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and
exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as
well as cooperative fish farming, with priority to subsistence fishermen and fish workers in rivers,
lakes, bays, and lagoons.
The President may enter into agreements with foreign-owned corporations involving either technical
or financial assistance for large-scale exploration, development, and utilization of minerals,
petroleum, and other mineral oils according to the general terms and conditions provided by law,
based on real contributions to the economic growth and general welfare of the country. In such
184
agreements, the State shall promote the development and use of local scientific and technical
resources.
The President shall notify the Congress of every contract entered into in accordance with this
provision, within thirty days from its execution.
The national territory comprises the Philippine archipelago, with all the islands
and waters embraced therein, and all other territories over which the Philippines
has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial
domains, including its territorial sea, the seabed, the subsoil, the insular shelves,
and other submarine areas. The waters around, between, and connecting the
islands of the archipelago, regardless of their breadth and dimensions, form part
of the internal waters of the Philippines. (Constitution, Article I, Section 1)
Under the Regalian doctrine, all lands of the public domain belong to the State and the
latter is the source of any asserted right to ownership in land. Thus, the State presumably owns
all lands not otherwise appearing to be clearly within private ownership. To overcome such
presumption, incontrovertible evidence must be shown by the applicant that the land subject of
registration is alienable and disposable. (Republic of the Philippines v. Roche, G.R. No. 175846, July
6, 2010)
Mining Rights
An MPSA (Mineral Production Sharing Agreement) is one of the mineral agreements
innovated by the 1987 Constitution by which the State takes on a broader and more dynamic
role in the exploration, development and utilization of the country‘s mineral resources. By such
agreements, the government does not become a mere licensor, concessor or lessor of mining
resources—but actually assumes "full control and supervision" in the exploration, development
and utilization of the concerned mining claims in consonance with Section 2, Article XII of the
Constitution. The policy introduced by the 1987 Constitution, therefore, represents a significant
shift in the hitherto existing relations between the government and mining claimants. This
considerable change in the former system of mining leases under previous mining laws, in turn,
makes it difficult for this Court to fathom that petitioner and Benguet contemplated the
execution of MPSAs as part of their Operating Agreement. To hold otherwise, would simply
stretch the limits of reason and human foresight. Accordingly, this Court agrees with the
finding of the DENR and the Court of Appeals that MPSA-P-III-16 was filed by Benguet
without any valid authorization and, therefore, cannot be considered as a valid MPSA
application. (Dizon Copper Silver Mines, Inc. v. Dizon, G.R. No. 183573, July 16, 2012)
Our conclusion is that, as the mining claim under consideration no longer formed part of
the public domain when the provisions of Article XII of the Constitution became effective, it
does not come within the prohibition against the alienation of natural resources; and the
petitioner has the right to a patent therefor upon compliance with the terms and conditions
prescribed by law… In Republic v. Court of Appeals, we stated that mining rights acquired under
the Philippine Bill of 1902 and prior to the effectivity of the 1935 Constitution were vested rights
that could not be impaired even by the Government. Indeed, the mining patents of Yinlu were
issued pursuant to the Philippine Bill of 1902 and were subsisting prior to the effectivity of the
1935 Constitution. Consequently, Yinlu and its predecessors-in-interest had acquired vested
185
rights in the disputed mineral lands that could not and should not be impaired even in light of
their past failure to comply with the requirement of registration and annual work obligations.
(Yinlu Bicol Mining Corporation v. Trans-Asia Oil and Energy Development Corporation, G.R. No.
207942, January 12, 2015)
… petitioners, being foreign corporations, are not entitled to Mineral Production Sharing
Agreements (MPSAs). In reaching its conclusion, this Court upheld with approval the appellate
court's finding that there was doubt as to petitioners' nationality since a 100% Canadian-owned
firm, MBMI Resources, Inc. (MBMI), effectively owns 60% of the common stocks of the
petitioners by owning equity interest of petitioners' other majority corporate shareholders…
The application of the Grandfather Rule is justified by the circumstances of the case to
determine the nationality of petitioners… the use of the Grandfather Rule as a "supplement" to
the Control Test is not proscribed by the Constitution or the Philippine Mining Act of 1995. The
Grandfather Rule implements the intent of the Filipinization provisions of the Constitution…
The Grandfather Rule, standing alone, should not be used to determine the Filipino ownership
and control in a corporation, as it could result in an otherwise foreign corporation rendered
qualified to perform nationalized or partly nationalized activities. Hence, it is only when the
Control Test is first complied with that the Grandfather Rule may be applied. Put in another
manner, if the subject corporation‘s Filipino equity falls below the threshold 60%, the
corporation is immediately considered foreign-owned, in which case, the need to resort to the
Grandfather Rule disappears. On the other hand, a corporation that complies with the 60-40
Filipino to foreign equity requirement can be considered a Filipino corporation if there is no
doubt as to who has the "beneficial ownership" and "control" of the corporation. In that instance,
there is no need fora dissection or further inquiry on the ownership of the corporate
shareholders in both the investing and investee corporation or the application of the
Grandfather Rule. As a corollary rule, even if the 60-40 Filipino to foreign equity ratio is
apparently met by the subject or investee corporation, a resort to the Grandfather Rule is
necessary if doubt exists as to the locus of the "beneficial ownership" and "control." In this case,
a further investigation as to the nationality of the personalities with the beneficial ownership
and control of the corporate shareholders in both the investing and investee corporations is
necessary. (Narra Nickel Mining and Development Corporation v. Redmont Consolidated Mines
Corporation, G.R. No. 195580, January 28, 2015)
Service Contracts
With the foregoing discussion in mind, this Court finds that R.A. No. 7942 is invalid
insofar as said Act authorizes service contracts. Although the statute employs the phrase
financial and technical agreements in accordance with the 1987 Constitution, it actually treats
these agreements as service contracts that grant beneficial ownership to foreign contractors
contrary to the fundamental law. In sum, the Court finds the following provisions of R.A. No.
7942 to be violative of Section 2, Article XII of the Constitution xxx. (La Bugal-Blaan Tribal
Association, Inc. v. Ramos, G.R. No. 127882. January 27, 2004)
This Court has previously settled the issue of whether service contracts are still allowed
under the 1987 Constitution. In La Bugal, we held that the deletion of the words ―service
contracts‖ in the 1987 Constitution did not amount to a ban on them per se. In fact, in that
decision, we quoted in length, portions of the deliberations of the members of the Constitutional
186
Commission (ConCom) to show that in deliberating on paragraph 4, Section 2, Article XII, they
were actually referring to service contracts as understood in the 1973 Constitution, albeit with
safety measures to eliminate or minimize the abuses prevalent during the martial law regime, to
wit: xxx
Such service contracts may be entered into only with respect to minerals,
petroleum and other mineral oils. The grant thereof is subject to several
safeguards, among which are these requirements:
(1) The service contract shall be crafted in accordance with a general law that will
set standard or uniform terms, conditions and requirements, presumably to
attain a certain uniformity in provisions and avoid the possible insertion of terms
disadvantageous to the country.
(2) The President shall be the signatory for the government because, supposedly
before an agreement is presented to the President for signature, it will have been
vetted several times over at different levels to ensure that it conforms to law and
can withstand public scrutiny.
(3) Within thirty days of the executed agreement, the President shall report it to
Congress to give that branch of government an opportunity to look over the
agreement and interpose timely objections, if any.
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. (Resident Marine
Mammals of the Protected Seascape Tanon Strait, e.g., Toothed Whales, Dolphins, Porpoises, and other
Cetacean Species, Joined in and Represented herein by Human Beings v. Reyes, G.R. No. 180771, April
21, 2015)
As this Court has held in La Bugal, our Constitution requires that the President himself
be the signatory of service agreements with foreign-owned corporations involving the
exploration, development, and utilization of our minerals, petroleum, and other mineral oils.
This power cannot be taken lightly. (Resident Marine Mammals of the Protected Seascape Tanon
Strait, e.g., Toothed Whales, Dolphins, Porpoises, and other Cetacean Species, Joined in and Represented
herein by Human Beings v. Reyes, G.R. No. 180771, April 21, 2015)
Section 3. Lands of the public domain are classified into agricultural, forest or timber, mineral lands
and national parks. Agricultural lands of the public domain may be further classified by law
according to the uses to which they may be devoted. Alienable lands of the public domain shall be
limited to agricultural lands. Private corporations or associations may not hold such alienable lands of
the public domain except by lease, for a period not exceeding twenty-five years, renewable for not
more than twenty-five years, and not to exceed one thousand hectares in area. Citizens of the
Philippines may lease not more than five hundred hectares, or acquire not more than twelve hectares
thereof, by purchase, homestead, or grant.
Taking into account the requirements of conservation, ecology, and development, and subject to the
requirements of agrarian reform, the Congress shall determine, by law, the size of lands of the public
domain which may be acquired, developed, held, or leased and the conditions therefor.
187
Lands of the public domain are classified into agricultural, forest or timber [1935
Constitution] and national parks [1987 Constitution]. Only agricultural lands may be alienated,
but a prior positive act of the Government, declaring land as alienable and disposable, by way
of proclamation, executive order, administrative action, report, statute, or certification, is
required. (Secretary of the Department of Environment and Natural Resources v. Yap, G.R. No.
167707, October 8, 2008)
Forest lands are outside the commerce of man and unsusceptible of private
appropriation in any form. A certificate of title is void when it covers property of public domain
classified as forest, timber or mineral lands. The contention that LBP has an interest over the
subject land as a mortgagee has no merit. The mortgagor, Lourdes Farms, Inc. from which LBP
supposedly obtained its alleged interest has never been the owner of the mortgaged land. (Land
Bank of the Philippines v. Republic of the Philippines, G.R. No. 150824, February 4, 2008)
The 1987 Constitution absolutely prohibits private corporations from acquiring any kind
of alienable land of the public domain. The length of possession of the land by the corporation
cannot be tacked on to complete the statutory 30 years acquisitive prescriptive period. Only an
individual can avail of such acquisitive prescription since both the 1973 and 1987 Constitutions
prohibit corporations from acquiring lands of the public domain. (Republic of the Philippines v.
T.A.N. Properties, G.R. No. 154953, June 26, 2008)
[Note: It can, therefore, be noticed that the power of a corporation sole to purchase real property,
like the power exercised in the case at bar, it is not restricted although the power to sell or mortgage
sometimes is, depending upon the rules, regulations, and discipline of the church concerned represented
by said corporation sole. If corporations sole can purchase and sell real estate for its church, charitable,
benevolent, or educational purposes, can they register said real properties? As provided by law, lands
held in trust for specific purposes me be subject of registration (section 69, Act 496), and the capacity of a
corporation sole, like petitioner herein, to register lands belonging to it is acknowledged, and title thereto
may be issued in its name (Bishop of Nueva Segovia vs. Insular Government, 26 Phil. 300-1913). Indeed it is
absurd that while the corporations sole that might be in need of acquiring lands for the erection of
temples where the faithful can pray, or schools and cemeteries which they are expressly authorized by
law to acquire in connection with the propagation of the Roman Catholic Apostolic faith or in furtherance
of their freedom of religion they could not register said properties in their name. As professor Javier J.
Nepomuceno very well says "Man in his search for the immortal and imponderable, has, even before the
dawn of recorded history, erected temples to the Unknown God, and there is no doubt that he will
continue to do so for all time to come, as long as he continues 'imploring the aid of Divine Providence'"
(Nepomuceno's Corporation Sole, VI Ateneo Law Journal, No. 1, p. 41, September, 1956). Under the
circumstances of this case, We might safely state that even before the establishment of the Philippine
Commonwealth and of the Republic of the Philippines every corporation sole then organized and
registered had by express provision of law the necessary power and qualification to purchase in its name
private lands located in the territory in which it exercised its functions or ministry and for which it was
created, independently of the nationality of its incumbent unique and single member and head, the
bishop of the dioceses. It can be also maintained without fear of being gainsaid that the Roman Catholic
Apostolic Church in the Philippines has no nationality and that the framers of the Constitution, as will be
hereunder explained, did not have in mind the religious corporations sole when they provided that 60
per centum of the capital thereof be owned by Filipino citizens. (Roman Catholic Apostolic Administrator of
Davao, Inc. v. Land Registration Commission, G.R. No. L-8451, December 20, 1957)]
188
Section 4. The Congress shall, as soon as possible, determine, by law, the specific limits of forest lands
and national parks, marking clearly their boundaries on the ground. Thereafter, such forest lands and
national parks shall be conserved and may not be increased nor diminished, except by law. The
Congress shall provide for such period as it may determine, measures to prohibit logging in
endangered forests and watershed areas.
Section 5. The State, subject to the provisions of this Constitution and national development policies
and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to
ensure their economic, social, and cultural well-being.
The Congress may provide for the applicability of customary laws governing property rights or
relations in determining the ownership and extent of ancestral domain.
The State recognizes and promotes the rights of indigenous cultural communities
within the framework of national unity and development. (Constitution, Article
II, Section 22)
The State shall recognize, respect, and protect the rights of indigenous cultural
communities to preserve and develop their cultures, traditions, and institutions.
It shall consider these rights in the formulation of national plans and policies.
(Constitution, Article XIV, Section 17)
The Congress may create a consultative body to advise the President on policies
affecting indigenous cultural communities, the majority of the members of which
shall come from such communities. (Constitution, Article XVI, Section 12)
Ancestral domains are all areas belonging to ICCs/IPs held under a claim of ownership,
occupied or possessed by ICCs/IPs by themselves or through their ancestors, communally or
individually since time immemorial, continuously until the present, except when interrupted by
war, force majeure or displacement by force, deceit, stealth or as a consequence of government
projects or any other voluntary dealings with government and/or private individuals or
corporations. Ancestral domains comprise lands, inland waters, coastal areas, and natural
resources therein and includes ancestral lands, forests, pasture, residential, agricultural, and
other lands individually owned whether alienable or not, hunting grounds, burial grounds,
worship areas, bodies of water, mineral and other natural resources. They also include lands
which may no longer be exclusively occupied by ICCs/IPs but from which they traditionally
had access to for their subsistence and traditional activities, particularly the home ranges of
ICCs/IPs who are still nomadic and/or shifting cultivators. (See Separate Opinion of J. Puno,
Cruz v. Secretary of Environment and Natural Resources, G.R. No. 135385, December 6, 2000)
[Note: Thus, ancestral lands and ancestral domains are not part of the lands of the public domain.
They are private and belong to the ICCs/IPs. Section 3 of Article XII on National Economy and
Patrimony of the 1987 Constitution classifies lands of the public domain into four categories: (a)
agricultural, (b) forest or timber, (c) mineral lands, and (d) national parks. Section 5 of the same Article
XII mentions ancestral lands and ancestral domains but it does not classify them under any of the said
four categories. To classify them as public lands under any one of the four classes will render the entire
IPRA law a nullity. The spirit of the IPRA lies in the distinct concept of ancestral domains and ancestral
lands. The IPRA addresses the major problem of the ICCs/IPs which is loss of land. Land and space are
189
of vital concern in terms of sheer survival of the ICCs/IPs. (See Separate Opinion of J. Puno, Cruz v.
Secretary of Environment and Natural Resources, G.R. No. 135385, December 6, 2000)]
Section 6. The use of property bears a social function, and all economic agents shall contribute to the
common good. Individuals and private groups, including corporations, cooperatives, and similar
collective organizations, shall have the right to own, establish, and operate economic enterprises,
subject to the duty of the State to promote distributive justice and to intervene when the common
good so demands.
The State shall apply the principles of agrarian reform or stewardship, whenever
applicable in accordance with law, in the disposition or utilization of other
natural resources, including lands of the public domain under lease or
concession suitable to agriculture, subject to prior rights, homestead rights of
small settlers, and the rights of indigenous communities to their ancestral lands.
The State may resettle landless farmers and farmworkers in its own agricultural
estates which shall be distributed to them in the manner provided by law.
(Constitution, Article XIII, Section 6)
Section 7. Save in cases of hereditary succession, no private lands shall be transferred or conveyed
except to individuals, corporations, or associations qualified to acquire or hold lands of the public
domain.
If land is invalidly transferred to an alien who subsequently becomes a Filipino citizen
or transfers it to a Filipino, the flaw in the original transaction is considered cured and the title
of the transferee is rendered valid. (United Church Board for World Ministries v. Sebastian, G.R. No.
L-34672, March 30, 1988, 159 SCRA 446, cited in Borromeo v. Descallar, G.R. No. 159310, February
24, 2009)
[Note: In Muller v. Muller (500 SCRA 65), wherein the respondent, a German national, was
seeking reimbursement of funds claimed by him to be given in trust to his petitioner wife, a Philippine
citizen, for the purchase of a property in Antipolo, the Court, in rejecting the claim, ruled that:
Respondent was aware of the constitutional prohibition and expressly admitted his knowledge thereof to
this Court. He declared that he had the Antipolo property titled in the name of the petitioner because of
the said prohibition. His attempt at subsequently asserting or claiming a right on the said property
cannot be sustained. The Court of Appeals erred in holding that an implied trust was created and
resulted by operation of law in view of petitioner's marriage to respondent. Save for the exception
provided in cases of hereditary succession, respondent's disqualification from owning lands in the
Philippines is absolute. Not even an ownership in trust is allowed. Besides, where the purchase is made
in violation of an existing statute and in evasion of its express provision, no trust can result in favor of the
party who is guilty of the fraud. To hold otherwise would allow circumvention of the constitutional
prohibition. (Ho v. Gui, G.R. No. 130115, July 16, 2008)
What are the rights of an alien (and his successor-in-interest) who acquired real properties in the
country as against his former Filipina girlfriend in whose sole name the properties were registered under
the Torrens system? It is settled that registration is not a mode of acquiring ownership. It is only a means
of confirming the fact of its existence with notice to the world at large. Certificates of title are not a source
of right. The mere possession of a title does not make one the true owner of the property. (Borromeo v.
Descallar, G.R. No. 159310, February 24, 2009)
190
The transfer of land from Agro-Macro Development Corporation to Jambrich, who is an
Austrian, would have been declared invalid if challenged, had not Jambrich conveyed the properties to
petitioner who is a Filipino citizen. Since the ban on aliens is intended to preserve the nation‘s land for
future generations of Filipinos, that aim is achieved by making lawful the acquisition of real estate by
aliens who became Filipino citizens by naturalization or those transfers made by aliens to Filipino
citizens. As the property in dispute is already in the hands of a qualified person, a Filipino citizen, there
would be no more public policy to be protected. The objective of the constitutional provision to keep our
lands in Filipino hands has been achieved. (Borromeo v. Descallar, G.R. No. 159310, February 24, 2009)
Clearly, since Lot No. 398 has already been transferred to private respondents who are Filipino
citizens, the prior invalid sale to Lee Liong can no longer be assailed. Hence, reversion proceedings will
no longer prosper since the land is now in the hands of Filipino citizens. (Republic of the Philippines v.
Register of Deeds of Roxas City, G.R. No. 158230, July 16, 2008)
Under Republic Act (R.A.) No. 4726, otherwise known as the Condominium Act, foreign
nationals can own Philippine real estate through the purchase of condominium units or townhouses
constituted under the Condominium principle with Condominium Certificates of Title. Considering that
the rights and liabilities of the parties under the Contract to Sell is covered by the Condominium Act
wherein petitioner as unit owner was simply a member of the Condominium Corporation and the land
remained owned by respondent, then the constitutional proscription against aliens owning real property
does not apply to the present case. (Hulst v. PR Builders, Inc., G.R. No. 156364, September 25, 2008)]
As can be gleaned from the contract, the lease in favor of Grilli was for a period of fifty
(50) years, automatically extended for another fifty (50) years upon the expiration of the original
period. Moreover, it strictly prohibited Fullido from selling, donating, or encumbering her land
to anyone without the written consent of Grilli. xxx. The said contracts attempted to guise
themselves as a lease, but a closer scrutiny of the same revealed that they were intended to
transfer the dominion of a land to a foreigner in violation of Section 7, Article XII of the 1987
Constitution. Even if Fullido voluntary executed the same, no amount of consent from the
parties could legalize an unconstitutional agreement. The lease contract and the MOA do not
deserve an iota of validity and must be rightfully struck down as null and void for being
repugnant to the fundamental law. These void documents cannot be the source of rights and
must be treated as mere scraps of paper. (Fullido v. Gino Grilli, G.R. No. 215014, February 29,
2016)
Consequently, only Filipino citizens, or corporations or associations whose capital is
60% owned by Filipinos citizens, are constitutionally qualified to own private lands.
Upholding this nationalization policy, the Court has voided not only outright
conveyances of land to foreigners, but also arrangements where the rights of ownership were
gradually transferred to foreigners. In Lui Shui, we considered a 99-year lease agreement, which
gave the foreigner-lessee the option to buy the land and prohibited the Filipino owner-lessor
from selling or otherwise disposing the land, amounted to a virtual transfer of ownership whereby the owner divests himself in stages not only of
the right to enjoy the land (Jus possidendi, jus utendi, jus fruendi, and jus abutendi) but also
of the right to dispose of it (jus disponendi) — rights the sum total of which make up
ownership. [Emphasis supplied]
191
In the present case, PNOC submits that a similar scheme is apparent from the
agreement's terms, but a review of the overall circumstances leads us to reject PNOC's claim.
The agreement was executed to enable Keppel to use the land for its shipbuilding and
ship repair business. The industrial/commercial purpose behind the agreement differentiates
the present case from Lui She where the leased property was primarily devoted to residential
use. Undoubtedly, the establishment and operation of a shipyard business involve significant
investments. Keppel's uncontested testimony showed that it incurred P60 million costs solely
for preliminary activities to make the land suitable as a shipyard, and subsequently introduced
improvements worth P177 million. Taking these investments into account and the nature of the
business that Keppel conducts on the land, we find it reasonable that the agreement's terms
provided for an extended duration of the lease and a restriction on the rights of Lusteveco.
We observe that, unlike in Lui She, Lusteveco was not completely denied its ownership
rights during the course of the lease. It could dispose of the lands or assign its rights thereto,
provided it secured Keppel's prior written consent. That Lusteveco was able to convey the land
in favour of PNOC during the pendency of the lease should negate a finding that the
agreement's terms amounted to a virtual transfer of ownership of the land to Keppel. (Philippine
National Oil Company v. Keppel Philippines Holdings, Inc., G.R. No. 202050, July 25, 2016)
Section 8. Notwithstanding the provisions of Section 7 of this Article, a natural-born citizen of the
Philippines who has lost his Philippine citizenship may be a transferee of private lands, subject to
limitations provided by law.
Section 9. The Congress may establish an independent economic and planning agency headed by the
President, which shall, after consultations with the appropriate public agencies, various private
sectors, and local government units, recommend to Congress, and implement continuing integrated
and coordinated programs and policies for national development.
Until the Congress provides otherwise, the National Economic and Development Authority shall
function as the independent planning agency of the government.
Section 10. The Congress shall, upon recommendation of the economic and planning agency, when the
national interest dictates, reserve to citizens of the Philippines or to corporations or associations at
least sixty per centum of whose capital is owned by such citizens, or such higher percentage as
Congress may prescribe, certain areas of investments. The Congress shall enact measures that will
encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy and patrimony, the
State shall give preference to qualified Filipinos.
The State shall regulate and exercise authority over foreign investments within its national
jurisdiction and in accordance with its national goals and priorities .
In other words, the 1987 Constitution does not rule out the entry of foreign investments,
goods, and services. While it does not encourage their unlimited entry into the country, it does
not prohibit them either. In fact, it allows an exchange on the basis of equality and reciprocity,
frowning only on foreign competition that is unfair. The key, as in all economies in the world,
192
is to strike a balance between protecting local businesses and allowing the entry of foreign
investments and services.
More importantly, Section 10, Article XII of the 1987 Constitution gives Congress the
discretion to reserve to Filipinos certain areas of investments upon the recommendation of the
NEDA and when the national interest requires. Thus, Congress can determine what policy to
pass and when to pass it depending on the economic exigencies. It can enact laws allowing the
entry of foreigners into certain industries not reserved by the Constitution to Filipino citizens.
In this case, Congress has decided to open certain areas of the retail trade business to foreign
investments instead of reserving them exclusively to Filipino citizens. The NEDA has not
opposed such policy.
The control and regulation of trade in the interest of the public welfare is of course an
exercise of the police power of the State. A person‘s right to property, whether he is a Filipino
citizen or foreign national, cannot be taken from him without due process of law. In 1954,
Congress enacted the Retail Trade Nationalization Act or R.A. 1180 that restricts the retail
business to Filipino citizens. In denying the petition assailing the validity of such Act for
violation of the foreigner‘s right to substantive due process of law, the Supreme Court held that
the law constituted a valid exercise of police power. The State had an interest in preventing
alien control of the retail trade and R.A. 1180 was reasonably related to that purpose. That law
is not arbitrary.
Here, to the extent that R.A. 8762, the Retail Trade Liberalization Act, lessens the
restraint on the foreigners‘ right to property or to engage in an ordinarily lawful business, it
cannot be said that the law amounts to a denial of the Filipinos‘ right to property and to due
process of law. Filipinos continue to have the right to engage in the kinds of retail business to
which the law in question has permitted the entry of foreign investors.
Certainly, it is not within the province of the Court to inquire into the wisdom of R.A.
8762 save when it blatantly violates the Constitution. But as the Court has said, there is no
showing that the law has contravened any constitutional mandate. The Court is not convinced
that the implementation of R.A. 8762 would eventually lead to alien control of the retail trade
business. Petitioners have not mustered any concrete and strong argument to support its thesis.
xxx.
In sum, petitioners have not shown how the retail trade liberalization has prejudiced
and can prejudice the local small and medium enterprises since its implementation about a
decade ago. (Espina v. Zamora, G.R. No. 143855, September 21, 2010)
Thus, in numerous laws Congress has reserved certain areas of investments to Filipino
citizens or to corporations at least sixty percent of the "capital" of which is owned by Filipino
citizens. (Heirs of Wilson Gamboa v. Finance Secretary ,G.R. No. 176579, October 9, 2012)
As explained in the April 21, 2012 Decision, the "doubt" that demands the application of
the Grandfather Rule in addition to or in tandem with the Control Test is not confined to, or
more bluntly, does not refer to the fact that the apparent Filipino ownership of the corporation‘s
equity falls below the 60% threshold. Rather, "doubt" refers to various indicia that the
193
"beneficial ownership" and "control" of the corporation do not in fact reside in Filipino
shareholders but in foreign stakeholders. As provided in DOJ Opinion No. 165, Series of 1984,
which applied the pertinent provisions of the Anti-Dummy Law in relation to the minimum
Filipino equity requirement in the Constitution, "significant indicators of the dummy status"
have been recognized in view of reports "that some Filipino investors or businessmen are being
utilized or [are] allowing themselves to be used as dummies by foreign investors" specifically in
joint ventures for national resource exploitation. These indicators are:
1. That the foreign investors provide practically all the funds for the joint
investment undertaken by these Filipino businessmen and their foreign partner;
2. That the foreign investors undertake to provide practically all the technological
support for the joint venture;
3. That the foreign investors, while being minority stockholders, manage the
company and prepare all economic viability studies. (Narra Nickel Mining and
Development Corporation v. Redmont Consolidated Mines Corporation, G.R. No.
195580, January 28, 2015)
In Narra Nickel Mining and Development, Corp. v. Redmont Consolidated Mines, Corp. (G.R.
No. 195580, April 21, 2014), the Court held that the "control test" is the prevailing mode of
determining whether or not a corporation is Filipino. Under the "control test," shares belonging
to corporations or partnerships at least 60% of the capital of which is owned by Filipino citizens
shall be considered as of Philippine nationality. It is only when based on the attendant facts and
circumstances of the case, there is, in the mind of the Court, doubt in the 60-40 Filipino-equity
ownership in the corporation, that it may apply the "grandfather rule.‖ xxx. Applying the
control test, 60% of SMTC's 226,000,000 shares, that is 135,600,000 shares, must be Filipinoowned. From the above-table, it is clear that SMTC reached this threshold amount to qualify as
a Filipino-owned corporation. (Querubin v. Commission on Elections, G.R. No. 218787, December
8, 2015)
Section 11. No franchise, certificate, or any other form of authorization for the operation of a public
utility shall be granted except to citizens of the Philippines or to corporations or associations
organized under the laws of the Philippines, at least sixty per centum of whose capital is owned by
such citizens; nor shall such franchise, certificate, or authorization be exclusive in character or for a
longer period than fifty years. Neither shall any such franchise or right be granted except under the
condition that it shall be subject to amendment, alteration, or repeal by the Congress when the
common good so requires. The State shall encourage equity participation in public utilities by the
general public. The participation of foreign investors in the governing body of any public utility
enterprise shall be limited to their proportionate share in its capital, and all the executive and
managing officers of such corporation or association must be citizens of the Philippines.
The term ―capital‖ in Section 11, Article XII of the Constitution refers only to shares of
stock entitled to vote in the election of directors, and thus in the present case only to common
shares, and not to the total outstanding capital stock comprising both common and non-voting
preferred shares. Considering that common shares have voting rights which translate to control, as
opposed to preferred shares which usually have no voting rights, the term “capital” in Section 11, Article
XII of the Constitution refers only to common shares. However, if the preferred shares also have the
194
right to vote in the election of directors, then the term ―capital‖ shall include such preferred
shares because the right to participate in the control or management of the corporation is
exercised through the right to vote in the election of directors. In short, the term ―capital‖ in
Section 11, Article XII of the Constitution refers only to shares of stock that can vote in the
election of directors. Mere legal title is insufficient to meet the 60 percent Filipino-owned
―capital‖ required in the Constitution. Full beneficial ownership of 60 percent of the
outstanding capital stock, coupled with 60 percent of the voting rights, is required. The legal
and beneficial ownership of 60 percent of the outstanding capital stock must rest in the hands of
Filipino nationals in accordance with the constitutional mandate. Otherwise, the corporation is
―considered as non-Philippine national[s].‖ To construe broadly the term ―capital‖ as the total
outstanding capital stock, including both common and non-voting preferred shares, grossly
contravenes the intent and letter of the Constitution that the ―State shall develop a self-reliant
and independent national economy effectively controlled by Filipinos.‖ A broad definition
unjustifiably disregards who owns the all-important voting stock, which necessarily equates to
control of the public utility. (Gamboa v. Finance Secretary, G.R. No. 176579, June 28, 2011)
This provision, which mandates the Filipinization of public utilities, requires that any
form of authorization for the operation of public utilities shall be granted only to "citizens of the
Philippines or to corporations or associations organized under the laws of the Philippines at
least sixty per centum of whose capital is owned by such citizens." "The provision is [an
express] recognition of the sensitive and vital position of public utilities both in the national
economy and for national security." (See xxx Smith, Bell and Co. v. Natividad, 40 Phil. 136, 148
(1919); Luzon Stevedoring Corporation v. Anti-Dummy Board, 150-B Phil. 380, 403-404 [1972])
The 1987 Constitution reserves the ownership and operation of public utilities
exclusively to (1) Filipino citizens, or (2) corporations or associations at least 60 percent of
whose "capital" is owned by Filipino citizens. Hence, in the case of individuals, only Filipino
citizens can validly own and operate a public utility. In the case of corporations or associations,
at least 60 percent of their "capital" must be owned by Filipino citizens. In other words, under
Section 11, Article XII of the 1987 Constitution, to own and operate a public utility a
corporation‘s capital must at least be 60 percent owned by Philippine nationals. (Heirs of Wilson
Gamboa v. Finance Secretary,G.R. No. 176579, October 9, 2012)
Since the constitutional requirement of at least 60 percent Filipino ownership applies not
only to voting control of the corporation but also to the beneficial ownership of the corporation,
it is therefore imperative that such requirement apply uniformly and across the board to all
classes of shares, regardless of nomenclature and category, comprising the capital of a
corporation. Under the Corporation Code, capital stock consists of all classes of shares issued to
stockholders, that is, common shares as well as preferred shares, which may have different
rights, privileges or restrictions as stated in the articles of incorporation.
The Constitution expressly declares as State policy the development of an economy
"effectively controlled" by Filipinos. Consistent with such State policy, the Constitution
explicitly reserves the ownership and operation of public utilities to Philippine nationals, who
are defined in the Foreign Investments Act of 1991 as Filipino citizens, or corporations or
associations at least 60 percent of whose capital with voting rights belongs to Filipinos. The
FIA‘s implementing rules explain that "[f]or stocks to be deemed owned and held by Philippine
195
citizens or Philippine nationals, mere legal title is not enough to meet the required Filipino
equity. Full beneficial ownership of the stocks, coupled with appropriate voting rights is
essential." In effect, the FIA clarifies, reiterates and confirms the interpretation that the term
"capital" in Section 11, Article XII of the 1987 Constitution refers to shares with voting rights, as
well as with full beneficial ownership. This is precisely because the right to vote in the election
of directors, coupled with full beneficial ownership of stocks, translates to effective control of a
corporation.
Any other construction of the term "capital" in Section 11, Article XII of the Constitution
contravenes the letter and intent of the Constitution. Any other meaning of the term "capital"
openly invites alien domination of economic activities reserved exclusively to Philippine
nationals. Therefore, respondents‘ interpretation will ultimately result in handing over effective
control of our national economy to foreigners in patent violation of the Constitution, making
Filipinos second-class citizens in their own country. (Heirs of Wilson Gamboa v. Finance
Secretary,G.R. No. 176579, October 9, 2012)
Although the ruling (in Gamboa v. Teves) was made in the context of ownership and
operation of public utilities, the same should be applied to the ownership of public and private
lands, since the same proportion of Filipino ownership is required and the same nationalist
policy pervades.
The uncontested fact is that, as of November 2000, Keppel's capital is 60% Filipinoowned. However, there is nothing in the records showing the nature and composition of
Keppel's shareholdings, i.e., whether its shareholdings are divided into different classes, and
60% of each share class is legally and beneficially owned by Filipinos - understandably because
when Keppel exercised its option to buy the land in 2000, the Gamboa ruling had not yet been
promulgated. The Court cannot deny Keppel its option to buy the land by retroactively
applying the Gamboa ruling without violating Keppel's vested right. Thus, Keppel's failure to
prove the nature and composition of its shareholdings in 2000 could not prevent it from validly
exercising its option to buy the land.
Nonetheless, the Court cannot completely disregard the effect of the Gamboa ruling; the
60% Filipino equity proportion is a continuing requirement to hold land in the Philippines.
Even in Gamboa, the Court prospectively applied its ruling, thus enabling the public utilities to
meet the nationality requirement before the Securities and Exchange Commission commences
administrative investigation and cases, and imposes sanctions for noncompliance on erring
corporations. In this case, Keppel must be allowed to prove whether it meets the required
Filipino equity ownership and proportion in accordance with the Gamboa ruling before it can
acquire full title to the land. (Philippine National Oil Company v. Keppel Philippines Holdings, Inc.,
G.R. No. 202050, July 25, 2016)
The decretal portion of the Gamboa Decision follows the definition of the term "capital"
in the body of the decision, to wit: "xxx we xxx rule that the term 'capital' in Section 11, Article
XII of the 1987 Constitution refers only to shares of stock entitled to vote in the election of
directors, and thus in the present case only to common shares, and not to the total outstanding
capital stock (common and non-voting preferred shares)." xxx. Further, the Court noted that the
foregoing interpretation is consistent with the intent of the framers of the Constitution to place
196
in the hands of Filipino citizens the control and management of public utilities; and, as revealed
in the deliberations of the Constitutional Commission, "capital" refers to the voting stock or
controlling interest of a corporation.
In this regard, it would be apropos to state that since Filipinos own at least 60% of the
outstanding shares of stock entitled to vote directors, which is what the Constitution precisely
requires, then the Filipino stockholders control the corporation, i.e., they dictate corporate
actions and decisions, and they have all the rights of ownership including, but not limited to,
offering certain preferred shares that may have greater economic interest to foreign investors as the need for capital for corporate pursuits (such as expansion), may be good for the
corporation that they own. Surely, these "true owners" will not allow any dilution of their
ownership and control if such move will not be beneficial to them.
As owners of the corporation, the economic benefits will necessarily accrue to them.
There is thus no logical reason why Filipino shareholders will allow foreigners to have greater
economic benefits than them. It is illogical to speculate that they will create shares which have
features that will give greater economic interests or benefits than they are holding and not
benefit from such offering, or that they will allow foreigners to profit more than them from their
own corporation - unless they are dummies. But, Commonwealth Act No. 108, the Anti-Dummy
Law, is NOT in issue in these petitions. Notably, even if the shares of a particular public utility
were owned 100% Filipino, that does not discount the possibility of a dummy situation from
arising. Hence, even if the 60-40 ownership in favor of Filipinos rule is applied separately to
each class of shares of a public utility corporation, as the petitioners insist, the rule can easily be
side-stepped by a dummy relationship. In other words, even applying the 60-40 Filipino foreign
ownership rule to each class of shares will not assure the lofty purpose enunciated by
petitioners. (Roy v. Herbosa, G.R. No. 207246, November 22, 2016)
In PAL v. Civil Aeronautics Board, this Court enunciated: Congress has granted certain
administrative agencies the power to grant licenses for, or to authorize the operation of certain
public utilities… It is generally recognized that a franchise may be derived indirectly from the
state through a duly designated agency, and to this extent, the power to grant franchises has
frequently been delegated, even to agencies other than those of a legislative nature. In
pursuance of this, it has been held that privileges conferred by grant by local authorities as
agents for the state constitute as much a legislative franchise as though the grant had been made
by an act of the Legislature... It is thus clear that Congress does not have the sole authority to
grant franchises for the operation of public utilities. (Hontiveros-Baraquel v. Toll Regulatory Board,
G.R. No. 181293, February 23, 2015)
It is clear that the law limits the grant of water rights only to Filipino citizens and
juridical entities duly qualified by law to exploit and develop water resources, including private
corporations with sixty percent of their capital owned by Filipinos. In the case of Angat River,
the NWRB has issued separate water permits to MWSS, NPC and NIA.
Foreign ownership of a hydropower facility is not prohibited under existing laws. The
construction, rehabilitation and development of hydropower plants are among those
infrastructure projects which even wholly-owned foreign corporations are allowed to undertake
under the Amended Build-Operate-Transfer (Amended BOT) Law (R.A. No. 7718). (Initiatives
197
for Dialogue and Empowerment through Alternative Legal Services, Inc. v. Power Sector Assets and
Liabilities Management Corporation, G.R. No. 192088, October 9, 2012)
Section 12. The State shall promote the preferential use of Filipino labor, domestic materials and
locally produced goods, and adopt measures that help make them competitive.
Section 13. The State shall pursue a trade policy that serves the general welfare and utilizes all forms
and arrangements of exchange on the basis of equality and reciprocity.
Section 14. The sustained development of a reservoir of national talents consisting of Filipino
scientists, entrepreneurs, professionals, managers, high-level technical manpower and skilled workers
and craftsmen in all fields shall be promoted by the State. The State shall encourage appropriate
technology and regulate its transfer for the national benefit. The practice of all professions in the
Philippines shall be limited to Filipino citizens, save in cases prescribed by law.
Note that the law may allow aliens to practice their professions in the Philippines.
[Note: It is clear, therefore, that the privileges provided in the Treaty invoked by the applicant
are made expressly subject to the laws and regulations of the contracting State in whose territory it is
desired to exercise the legal profession; and Section 1 of Rule 127, in connection with Sections 2, 9, and 16
thereof, which have the force of law, require that before anyone can practice the legal profession in the
Philippine he must first successfully pass the required bar examinations. xxx. The aforementioned
Treaty, concluded between the Republic of the Philippines and the Spanish State could not have been
intended to modify the laws and regulations governing admission to the practice of law in the
Philippines, for the reason that the Executive Department may not encroach upon the constitutional
prerogative of the Supreme Court to promulgate rules for admission to the practice of law in the
Philippines, the power to repeal, alter or supplement such rules being reserved only to the Congress of
the Philippines. [In Re Garcia, August 15, 1961, 2 SCRA 984])
Section 14, Article XII of the Constitution refers to the privilege of a natural person to
exercise his profession in the Philippines. On the other hand, under Article IV of R.A. No. 4566,
even partnerships, corporations and organizations can qualify for a contractor's license through
its responsible officer. The "profession" under the aforesaid provision refers to the practice of
natural persons of a certain field in which they are trained, certified, and licensed. Being a
licensed contractor does not automatically qualify within the ambit of the Constitution as a
"profession" per se. A contractor under R.A. No. 4566 does not refer to a specific practice of
profession, i.e. architecture, engineering, medicine, accountancy and the like. (Philippine
Contractors Accreditation Board v. Manila Water Company, G.R. No. 217590, March 10, 2020)
Section 15. The Congress shall create an agency to promote the viability and growth of cooperatives as
instruments for social justice and economic development.
Section 16. The Congress shall not, except by general law, provide for the formation, organization, or
regulation of private corporations. Government-owned or controlled corporations may be created or
established by special charters in the interest of the common good and subject to the test of economic
viability.
Section 17. In times of national emergency, when the public interest so requires, the State may, during
the emergency and under reasonable terms prescribed by it, temporarily take over or direct the
operation of any privately-owned public utility or business affected with public interest.
198
Proclamation 1017 does not authorize the President during the emergency to
temporarily take over or direct the operation of any privately owned public utility or business
affected with public interest without authority from Congress. (David v. Arroyo, G.R.
No.171396, May 3, 2006, 489 SCRA 161)
Section 18. The State may, in the interest of national welfare or defense, establish and operate vital
industries and, upon payment of just compensation, transfer to public ownership utilities and other
private enterprises to be operated by the Government.
Section 19. The State shall regulate or prohibit monopolies when the public interest so requires. No
combinations in restraint of trade or unfair competition shall be allowed.
Private monopolies are not necessarily prohibited. The use of the word "regulate" in the
Constitution indicates that some monopolies, properly regulated, are allowed. Regulate means
includes the power to control, to govern, and to restrain, but regulate should not be construed
as synonymous with suppress or prohibit (Kwong Sing vs. City of Manila, 41 Phil. 108).
"Competition can best regulate a free economy. Like all basic beliefs, however, that principle
must accommodate hard practical experience. There are areas where for special reasons the
force of competition, when left wholly free, might operate too destructively to safeguard the
public interest. Public utilities are an instance of that consideration." (Oleck, Modern
Corporation Law, Vol. IV, p. 197). By their very nature, certain public services or public utilities
such as those which supply water, electricity, transportation, telegraph, etc. must be given
exclusive franchises if public interest is to be served. Such exclusive franchises are not violative
of the law against monopolies (Anglo-Fil Trading Corporation vs. Lazaro, supra).
In the case at bar, the area affected is maritime transportation in the port of Cebu. The
operations there, particularly arrastre and stevedoring, affect not only the City of Cebu, the
principal port in the South, but also the economy of the whole country as well. Any prolonged
disjunction of the services being rendered there will prejudice not only inter-island and
international trade and commerce. Operations in said port are therefore imbued with public
interest and are subject to regulation and control for the public good and welfare. PPA's policy
of integration through compulsory merger may not even be in this instance considered as
promoting a monopoly because the fact of the matter is that while the sole operator permitted
by PPA to engage in the arrastre and stevedoring operations in the port of Cebu is only USDI,
actually USDI is comprised of the eleven (11) port services contractors that previously used said
ports but decided to merge and ultimately constituted themselves as USDI.
But over and above the platter of whether the monopoly has been created, the
overriding and more significant consideration is public interest. Accordingly, We hold that
PPA's policy of integration is not violative of any constitutional and legal provision on
monopolies. (Philippine Port Authority v. Mendoza, G.R. No. L-48304, September 11, 1985)
In short, we find that the grant of a concession agreement to an entity, as a winning
bidder, for the exclusive development, operation, and maintenance of any or all of the Projects,
does not by itself create a monopoly violative of the provisions of the Constitution. Anglo-Fil
Trading Corporation teaches that exclusivity is inherent in the grant of a concession to a private
entity to deliver a public service, where Government chooses not to undertake such service.
Otherwise stated, while the grant may result in a monopoly, it is a type of monopoly not
199
violative of law. This is the essence of the policy decision of the Government to enter into
concessions with the private sector to build, maintain and operate what would have otherwise
been government-operated services, such as airports. In any case, the law itself provides for
built-in protections to safeguard the public interest, foremost of which is to require public
bidding. Under the BOT Law, for example, a private-public pat1nership (PPP) agreement may
be undertaken through public bidding, in cases of solicited proposals, or through "Swiss
challenge" (also known as comparative bidding), in cases of unsolicited proposals.
In any event, the Constitution provides that the State may, by law, prohibit or regulate
monopolies when the public interest so requires. Petitioner has failed to point to any provision in
the law, which specifically prohibits the bundling of bids, a detail supplied by the respondent
DOTC as implementing agency for the PPP program for airports. Our examination of the
petition and the relevant statute, in fact, provides further support for the dismissal of the
present action. (Gios-Samar, In. v. Department of Transportation and Communication and Civil
Aviation Authority, G.R. No. 217158, March 12, 2019)
A weak and developing country like the Philippines cannot risk a downstream oil
industry controlled by a foreign oligopoly that can run riot. Oil is our most socially sensitive
commodity and for it to be under the control of a foreign oligopoly without effective
competitors is a clear and present danger. A foreign oil oligopoly can undermine the security of
the nation; it can exploit the economy if greed becomes its creed; it will have the power to drive
the Filipino to a prayerful pose. Under a deregulated regime, the people's only hope to check
the overwhelming power of the foreign oil oligopoly lies on a market where there is fair
competition. With prescience, the Constitution mandates the regulation of monopolies and
interdicts unfair competition. Thus, the Constitution provides a shield to the economic rights of
our people, especially the poor. It is the unyielding duty of this Court to uphold the supremacy
of the Constitution not with a mere wishbone but with a backbone that should neither bend nor
break. (Tatad v. Secretary of Department of Energy, G.R. No. 124360, December 3, 1997)
Indeed, in Tatad we ruled that a law which imposes substantial barriers to the entry and
exit of new players in our downstream oil industry may be struck down for being violative of
Section 19, Article XII of the Constitution. However, we went on to say in that case that ―if they
are insignificant impediments, they need not be stricken down.‖ As we stated in our August 20,
2008 Decision, petitioner failed to convincingly prove that there is a substantial barrier to the
entry of new brands in the cigarette market due to the classification freeze provision. We further
observed that several new brands were introduced in the market after the assailed law went
into effect thus negating petitioner‘s sweeping claim that the classification freeze provision is an
insurmountable barrier to the entry of new brands. We also noted that price is not the only
factor affecting competition in the market for there are other factors such as taste, brand loyalty,
etc. (British American Tobacco v. Camacho, G.R. No. 163583, April 15, 2009)
Section 20. The Congress shall establish an independent central monetary authority, the members of
whose governing board must be natural-born Filipino citizens, of known probity, integrity, and
patriotism, the majority of whom shall come from the private sector. They shall also be subject to such
other qualifications and disabilities as may be prescribed by law. The authority shall provide policy
direction in the areas of money, banking, and credit. It shall have supervision over the operations of
200
banks and exercise such regulatory powers as may be provided by law over the operations of finance
companies and other institutions performing similar functions.
Until the Congress otherwise provides, the Central Bank of the Philippines operating under existing
laws, shall function as the central monetary authority.
The Constitution expressly grants the BSP, as the country‘s central monetary authority,
the power of supervision over the operation of banks, while leaving with Congress the
authority to define the BSP‘s regulatory powers over the operations of finance companies and
other institutions performing similar functions. Under R.A. No. 7653, the BSP‘s powers and
functions include (i) supervision over the operation of banks; (ii) regulation of operations of
finance companies and non-bank financial institutions performing quasi banking functions; (iii)
sole power and authority to issue currency within the Philippine territory; (iv) engaging in
foreign exchange transactions; (v) making rediscounts, discounts, loans and advances to
banking and other financial institutions to influence the volume of credit consistent with the
objective of achieving price stability; (vi) engaging in open market operations; and (vii) acting as
banker and financial advisor of the government. (Bank of Commerce v. Planters Development Bank,
G.R. Nos. 154470-71, September 24, 2012)
In United Coconut Planters Bank v. E. Ganzon, Inc. (G.R. No. 168859, June 30, 2009, 591
SCRA 321, 338-341], the Court considered the BSP as an administrative agency (See also
Busuego v. Court of Appeals, 364 Phil. 116, 127, 129-130 [1999]) exercising quasi-judicial functions
through its Monetary Board. (Bank of Commerce v. Planters Development Bank, G.R. Nos. 15447071, September 24, 2012)
…the BSP Monetary Board is an independent central monetary authority and a body
corporate with fiscal and administrative autonomy, mandated to provide policy directions in
the areas of money, banking, and credit. It has the power to issue subpoena, to sue for contempt
those refusing to obey the subpoena without justifiable reason, to administer oaths and compel
presentation of books, records and others, needed in its examination, to impose fines and other
sanctions and to issue cease and desist order. Section 37 of Republic Act No. 7653, in particular,
explicitly provides that the BSP Monetary Board shall exercise its discretion in determining
whether administrative sanctions should be imposed on banks and quasi-banks, which
necessarily implies that the BSP Monetary Board must conduct some form of investigation or
hearing regarding the same. A priori, having established that the BSP Monetary Board is indeed
a quasi-judicial body exercising quasi-judicial functions, then its decision in MB Resolution No.
1139 cannot be the proper subject of declaratory relief. (Monetary Board v. Philippine Veterans
Bank, G.R. No. 189571, January 21, 2015)
Section 21. Foreign loans may only be incurred in accordance with law and the regulation of the
monetary authority. Information on foreign loans obtained or guaranteed by the Government shall be
made available to the public.
The President may contract or guarantee foreign loans on behalf of the Republic
of the Philippines with the prior concurrence of the Monetary Board, and subject
to such limitations as may be provided by law. The Monetary Board shall, within
thirty days from the end of every quarter of the calendar year, submit to the
Congress a complete report of its decision on applications for loans to be
201
contracted or guaranteed by the Government or government-owned and
controlled corporations which would have the effect of increasing the foreign
debt, and containing other matters as may be provided by law. (Constitution,
Article VII, Section 20)
Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving
public interest. (Constitution, Article II, Section 28)
Section 22. Acts which circumvent or negate any of the provisions of this Article shall be considered
inimical to the national interest and subject to criminal and civil sanctions, as may be provided by
law.
XII. AMENDMENT AND REVISION OF THE CONSTITUTION
Article XVII
Section 1. Any amendment to, or revision of, this Constitution may be proposed by:
1.
The Congress, upon a vote of three-fourths of all its Members; or
a constitutional convention.
Section 2. Amendments to this Constitution may likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of the total number of registered voters, of
which every legislative district must be represented by at least three per centum of the registered
voters therein. No amendment under this section shall be authorized within five years following the
ratification of this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.
The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete, inadequate,
or wanting in essential terms and conditions insofar as initiative on amendments to the
Constitution is concerned. Its lacunae on this substantive matter are fatal and cannot be cured
by empowering the COMELEC to promulgate such rules and regulations as may be necessary
to carry out the purposes of [the] Act. (Santiago v. Commission on Elections, G.R. No. 127325,
March 19, 1997)
Even then, the present initiative violates Section 5(b) of RA 6735 which requires that the
"petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of
the total number of registered voters as signatories." Section 5(b) of RA 6735 requires that the
people must sign the "petition xxx as signatories." (Lambino v. Commission on Elections, G.R. No.
174153, October 25, 2006)
Two essential elements must be present. First, the people must author and thus sign the
entire proposal. No agent or representative can sign on their behalf. Second, as an initiative
upon a petition, the proposal must be embodied in a petition. The full text of the proposed
amendments may be either written on the face of the petition, or attached to it. If so attached,
202
the petition must state the fact of such attachment. (Lambino v. Commission on Elections, G.R.
No. 174153, October 25, 2006)
Courts have long recognized the distinction between an amendment and a revision of a
constitution. One of the earliest cases that recognized the distinction described the fundamental
difference in this manner:
[T]he very term "constitution" implies an instrument of a permanent and abiding nature,
and the provisions contained therein for its revision indicate the will of the people that the
underlying principles upon which it rests, as well as the substantial entirety of the instrument,
shall be of a like permanent and abiding nature. On the other hand, the significance of the term
"amendment" implies such an addition or change within the lines of the original instrument as
will effect an improvement, or better carry out the purpose for which it was framed.
Revision broadly implies a change that alters a basic principle in the constitution, like
altering the principle of separation of powers or the system of checks-and-balances. There is
also revision if the change alters the substantial entirety of the constitution, as when the change
affects substantial provisions of the constitution. On the other hand, amendment broadly refers
to a change that adds, reduces, or deletes without altering the basic principle involved. Revision
generally affects several provisions of the constitution, while amendment generally affects only
the specific provision being amended.
In California where the initiative clause allows amendments but not revisions to the
constitution just like in our Constitution, courts have developed a two-part test: the quantitative
test and the qualitative test. The quantitative test asks whether the proposed change is "so
extensive in its provisions as to change directly the 'substantial entirety' of the constitution by
the deletion or alteration of numerous existing provisions." The court examines only the
number of provisions affected and does not consider the degree of the change.
The qualitative test inquires into the qualitative effects of the proposed change in the
constitution. The main inquiry is whether the change will "accomplish such far reaching
changes in the nature of our basic governmental plan as to amount to a revision." Whether there
is an alteration in the structure of government is a proper subject of inquiry. Thus, "a change in
the nature of [the] basic governmental plan" includes "change in its fundamental framework or
the fundamental powers of its Branches." A change in the nature of the basic governmental plan
also includes changes that "jeopardize the traditional form of government and the system of
check and balances."
Under both the quantitative and qualitative tests, the Lambino Group's initiative is a
revision and not merely an amendment. Quantitatively, the Lambino Group's proposed changes
overhaul two articles - Article VI on the Legislature and Article VII on the Executive - affecting a
total of 105 provisions in the entire Constitution. Qualitatively, the proposed changes alter
substantially the basic plan of government, from presidential to parliamentary, and from a
bicameral to a unicameral legislature.
A change in the structure of government is a revision of the Constitution, as when the
three great co-equal branches of government in the present Constitution are reduced into two.
203
This alters the separation of powers in the Constitution. A shift from the present BicameralPresidential system to a Unicameral-Parliamentary system is a revision of the Constitution.
Merging the legislative and executive branches is a radical change in the structure of
government. xxx.
We can visualize amendments and revisions as a spectrum, at one end green for
amendments and at the other end red for revisions. Towards the middle of the spectrum, colors
fuse and difficulties arise in determining whether there is an amendment or revision. The
present initiative is indisputably located at the far end of the red spectrum where revision
begins. The present initiative seeks a radical overhaul of the existing separation of powers
among the three co-equal departments of government, requiring far-reaching amendments in
several sections and articles of the Constitution.
Where the proposed change applies only to a specific provision of the Constitution
without affecting any other section or article, the change may generally be considered an
amendment and not a revision. For example, a change reducing the voting age from 18 years to
15 years47 is an amendment and not a revision. Similarly, a change reducing Filipino ownership
of mass media companies from 100 percent to 60 percent is an amendment and not a revision.48
Also, a change requiring a college degree as an additional qualification for election to the
Presidency is an amendment and not a revision.
The changes in these examples do not entail any modification of sections or articles of
the Constitution other than the specific provision being amended. These changes do not also
affect the structure of government or the system of checks-and-balances among or within the
three branches. These three examples are located at the far green end of the spectrum, opposite
the far red end where the revision sought by the present petition is located.
However, there can be no fixed rule on whether a change is an amendment or a revision.
A change in a single word of one sentence of the Constitution may be a revision and not an
amendment. For example, the substitution of the word "republican" with "monarchic" or
"theocratic" in Section 1, Article II of the Constitution radically overhauls the entire structure of
government and the fundamental ideological basis of the Constitution. Thus, each specific
change will have to be examined case-by-case, depending on how it affects other provisions, as
well as how it affects the structure of government, the carefully crafted system of checks-andbalances, and the underlying ideological basis of the existing Constitution.
Since a revision of a constitution affects basic principles, or several provisions of a
constitution, a deliberative body with recorded proceedings is best suited to undertake a
revision. A revision requires harmonizing not only several provisions, but also the altered
principles with those that remain unaltered. Thus, constitutions normally authorize deliberative
bodies like constituent assemblies or constitutional conventions to undertake revisions. On the
other hand, constitutions allow people's initiatives, which do not have fixed and identifiable
deliberative bodies or recorded proceedings, to undertake only amendments and not revisions.
(Lambino v. Commission on Elections, G.R. No. 174153, October 25, 2006)
204
Section 3. The Congress may, by a vote of two-thirds of all its Members, call a constitutional
convention, or by a majority vote of all its Members, submit to the electorate the question of calling
such a convention.
Section 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid
when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty
days nor later than ninety days after the approval of such amendment or revision.
Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in
a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the
certification by the Commission on Elections of the sufficiency of the petition.
There is in this provision nothing to indicate that the "election" therein referred to is a
"special," not a general, election. The circumstance that three previous amendments to the
Constitution had been submitted to the people for ratification in special elections merely shows
that Congress deemed it best to do so under the circumstances then obtaining. It does not
negate its authority to submit proposed amendments for ratification in general elections.
(Gonzales v. Commission on Elections, G.R. No. L-28196, November 9, 1967)
In issue in Tolentino v. Commission on Elections (41 SCRA 702) was ―whether the
Constitutional Convention of 1971 had the power to call for a plebiscite for the ratification by
the people of a partial constitutional amendment. The amendment was the proposal to lower
the voting age to 18 but with the caveat that (t)his partial amendment, which refers only to age
qualification for the exercise of suffrage shall be without prejudice to other amendments that
will be proposed in the future by the 1971 Constitutional Convention on other portions of the
amended Section or on other portions of the entire Constitution. The Court ruled in the
negative, emphasizing the necessity for the voter to be afforded sufficient time and information
to appraise the amendment xxx.
B
INTERNATIONAL LAW
I. SOURCES OF INTERNATIONAL LAW
The primary sources of international law are either primary or subsidiary.
The primary sources are international treaties and conventions, international customs,
and general principles of law.
The subsidiary sources are decisions of courts and teaching of publicists. (Article 38 of
the International Court of Justice)
Customary international law or international custom is a source of international law. It
is defined as the "general and consistent practice of states recognized and followed by them
from a sense of legal obligation." (Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011)
205
Generally accepted principles of international law, by virtue of the incorporation clause
of the Constitution, form part of the laws of the land even if they do not derive from treaty
obligations. (Mijares v. Ranada, G.R. No. 139325, April 12, 2005, 455 SCRA 397)
They refer to norms of general or customary international law which are binding on all
states, i.e., renunciation of war as an instrument of national policy, the principle of sovereign
immunity, a person's right to life, liberty and due process, and pacta sunt servanda, among
others. Clearly, customary international law is deemed incorporated into our domestic system.
(Mijares v. Rañada, G.R. No. 139325, April 12, 2005, 455 SCRA 397, cited in Pharmaceutical and
Health Care Association of the Philippines v. Duque, G.R. No. 173034, October 9, 2007)
[Note: "Generally accepted principles of international law" are based not only on international
custom, but also on "general principles of law recognized by civilized nations," as the phrase is
understood in Article 38.1 paragraph (c) of the ICJ Statute. Justice, fairness, equity and the policy against
discrimination, which are fundamental principles underlying the Bill of Rights and which are "basic to
legal systems generally," support the notion that the right against enforced disappearances and the
recognition of foreign judgments, were correctly considered as "generally accepted principles of
international law" under the incorporation clause. (See Mijares v. Rañada, G.R. No. 139325, April 12, 2005,
455 SCRA 397; Razon v. Tagitis, G.R. No. 182498, December 3, 2009)]
[Note: "General principles of law recognized by civilized nations" are principles "established by a
process of reasoning" or judicial logic, based on principles which are "basic to legal systems generally,"
such as "general principles of equity, i.e., the general principles of fairness and justice," and the "general
principle against discrimination" which is embodied in the "Universal Declaration of Human Rights, the
International Covenant on Economic, Social and Cultural Rights, the International Convention on the
Elimination of All Forms of Racial Discrimination, the Convention Against Discrimination in Education,
the Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation." These
are the same core principles which underlie the Philippine Constitution itself, as embodied in the due
process and equal protection clauses of the Bill of Rights. (Poe-Llamanzares v. COMELEC. G.R. No. 221697,
March 8, 2016)]
Under the 1987 Constitution, an international law can become part of the sphere of
domestic law either by transformation or incorporation. The transformation method requires
that an international law be transformed into a domestic law through a constitutional
mechanism such as local legislation. On the other hand, generally accepted principles of
international law, by virtue of the incorporation clause of the Constitution, form part of the laws
of the land even if they do not derive from treaty obligations. Generally accepted principles of
international law include international custom as evidence of a general practice accepted as law,
and general principles of law recognized by civilized nations. International customary rules are
accepted as binding as a result from the combination of two elements: the established,
widespread, and consistent practice on the part of States; and a psychological element known as
the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter element is a
belief that the practice in question is rendered obligatory by the existence of a rule of law
requiring it. "General principles of law recognized by civilized nations" are principles
"established by a process of reasoning" or judicial logic, based on principles which are "basic to
legal systems generally," such as "general principles of equity, i.e., the general principles of
fairness and justice," and the "general principle against discrimination" which is embodied in
the "Universal Declaration of Human Rights, the International Covenant on Economic, Social
and Cultural Rights, the International Convention on the Elimination of All Forms of Racial
206
Discrimination, the Convention Against Discrimination in Education, the Convention (No. 111)
Concerning Discrimination in Respect of Employment and Occupation." These are the same
core principles which underlie the Philippine Constitution itself, as embodied in the due
process and equal protection clauses of the Bill of Rights. (Poe-Llamanzares v. Commission on
Elections, G.R. Nos. 221697 & 221698-700, March 8, 2016)
Some legal scholars and judges look upon certain "general principles of law" as a
primary source of international law because they have the "character of jus rationale" and are
"valid through all kinds of human societies." (Judge Tanaka in his dissenting opinion in the 1966
South West Africa Case, 1966 I.C.J. 296). O'Connell holds that certain principles are part of
international law because they are "basic to legal systems generally" and hence part of the jus
gentium. These principles, he believes, are established by a process of reasoning based on the
common identity of all legal systems. If there should be doubt or disagreement, one must look
to state practice and determine whether the municipal law principle provides a just and
acceptable solution. (See Pharmaceutical and Health Care Association of the Philippines v. Duque,
G.R. No. 173034, October 9, 2007)
The classical formulation in international law sees those customary rules accepted as
binding result from the combination [of] two elements: the established, widespread, and
consistent practice on the part of States; and a psychological element known as the opinion juris
sive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the
practice in question is rendered obligatory by the existence of a rule of law requiring it. (Mijares
v. Ranada, G.R. No. 139325, April 12, 2005, 455 SCRA 397; Poe-Llamanzares v. COMELEC. G.R.
No. 221697, March 8, 2016)
In order to establish the customary status of a particular norm, two elements must
concur: State practice, the objective element; and opinio juris sive necessitates, the subjective
element. (Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011)
State practice refers to the continuous repetition of the same or similar kind of acts or
norms by States. It is demonstrated upon the existence of the following elements: (1) generality;
(2) uniformity and consistency; and (3) duration. While, opinio juris, the psychological element,
requires that the state practice or norm "be carried out in such a way, as to be evidence of a
belief that this practice is rendered obligatory by the existence of a rule of law requiring it."
(Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011)
"The term ‗jus cogens’ means the ‗compelling law.‘" Corollary, "a jus cogens norm holds
the highest hierarchical position among all other customary norms and principles." As a result,
jus cogens norms are deemed "peremptory and non-derogable." (Bayan Muna v. Romulo ,G.R. No.
159618, February 1, 2011)
When applied to international crimes, "jus cogens crimes have been deemed so
fundamental to the existence of a just international legal order that states cannot derogate from
them, even by agreement." These jus cogens crimes relate to the principle of universal
jurisdiction, i.e., "any state may exercise jurisdiction over an individual who commits certain
heinous and widely condemned offenses, even when no other recognized basis for jurisdiction
exists.‖ ―The rationale behind this principle is that the crime committed is so egregious that it is
207
considered to be committed against all members of the international community" and thus
granting every State jurisdiction over the crime.‖ (Bayan Muna v. Romulo, G.R. No. 159618,
February 1, 2011)
[Note: According to the Supreme Court in Bayan Muna v. Romulo (G.R. No. 159618, February 1,
2011) ―the International Criminal Court, as an international tribunal, found in the Rome Statute is not
declaratory of customary international law‖ because ―the first element of customary international law,
i.e., ‗established, widespread, and consistent practice on the part of States,‘ does not, under the premises,
appear to be obtaining as reflected in this simple reality: As of October 12, 2010, only 114 States have
ratified the Rome Statute, subsequent to its coming into force eight (8) years earlier, or on July 1, 2002.
The fact that 114 States out of a total of 194 countries in the world, or roughly 58.76%, have ratified the
Rome Statute casts doubt on whether or not the perceived principles contained in the Statute have
attained the status of customary law and should be deemed as obligatory international law. The numbers
even tend to argue against the urgency of establishing international criminal courts envisioned in the
Rome Statute.]
Sates may be bound by treaties which they yet unratified or signed if the treaties contain
rights and obligations which are considered to be generally accepted principles of international
law. (Poe-Llamanzares v. COMELEC. G.R. No. 221697, March 8, 2016)
"Soft law" does not fall into any of the categories of international law set forth in Article 38,
Chapter III of the 1946 Statute of the International Court of Justice. It is, however, an expression of nonbinding norms, principles, and practices that influence state behavior. Certain declarations and
resolutions of the UN General Assembly fall under this category. The most notable is the UN Declaration
of Human Rights, which this Court has enforced in various cases, specifically, Government of Hongkong
Special Administrative Region v. Olalia, Mejoff v. Director of Prisons, Mijares v. Rañada and Shangri-la
International Hotel Management, Ltd. v. Developers Group of Companies, Inc.. Pharmaceutical and Health
Care Association of the Philippines v. Duque, G.R. No. 173034, October 9, 2007)
Article 38 of the Statute of the International Court of Justice (ICJ) lists the sources of
international law. The report does not fall under any of the foregoing enumerated sources. It
cannot even be considered as the "teachings of highly qualified publicists." A highly qualified
publicist is a scholar of public international law and the term usually refers to legal scholars or
"academic writers." It has not been shown that the authors of this report are highly qualified
publicists. The report used may not have any weight or value under international law. (Bayan
Muna v. Romulo, G.R. No. 159618, February 1, 2011)
II. RELATIONSHIP WITH DOMESTIC LAW
Moreover, as explained in Poe-Llamanzares v. COMELEC (G.R. No. 221697, March 8,
2016), ―under the 1987 Constitution, an international law can become part of the sphere of
domestic law either by transformation or incorporation. The transformation method requires
that an international law be transformed into a domestic law through a constitutional
mechanism such as local legislation. On the other hand, generally accepted principles of
international law, by virtue of the incorporation clause of the Constitution, form part of the laws
of the land even if they do not derive from treaty obligations.‖
208
We observe the doctrine of incorporation as expressed in Article II, Section 2, of our
Constitution, which provides: ―The Philippines renounces war as an instrument of national
policy, adopts the generally accepted principles of international law as part of the law of the
land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with
all nations. Said provision embodies the incorporation method. (Pharmaceutical and Health Care
Association of the Philippines v. Duque, G.R. No. 173034, October 9, 2007) In a significant number
of cases, our Supreme Court has applied the generally accepted principles of international law
notwithstanding that they had not been previously transformed into statutory or municipal
law. An example is Peralta v. Director of Prisons, (75 Phil. 287), on the powers of the belligerent
occupant.
We also observe the doctrine of transformation. Article VII, Section 21 of the
Constitution provides that "[n]o treaty or international agreement shall be valid and effective
unless concurred in by at least two-thirds of all the members of the Senate." Thus, treaties or
conventional international law must go through a process prescribed by the Constitution for it
to be transformed into municipal law that can be applied to domestic conflicts. (Pharmaceutical
and Health Care Association of the Philippines v. Duque, G.R. No. 173034, October 9, 2007)
For an international rule to be considered as customary law, it must be established that
such rule is being followed by states because they consider it obligatory to comply with such
rules (opinio juris). Accordingly, absent ―any evidence to prove that the WHA Resolutions,
although signed by most of the member states, were in fact enforced or practiced by at least a
majority of the member states‖ or proof ―any compliance by member states with said WHA
Resolutions was obligatory in nature,‖ it would be clear that ―legislation is necessary to
transform the provisions of the WHA Resolutions into domestic law. The provisions of the
WHA Resolutions cannot be considered as part of the law of the land that can be implemented
by executive agencies without the need of a law enacted by the legislature. (Pharmaceutical and
Health Care Association of the Philippines v. Duque, G.R. No. 173034, October 9, 2007)
Treaties become part of the law of the land through transformation pursuant to Article
VII, Section 21 of the Constitution which provides that "[n]o treaty or international agreement
shall be valid and effective unless concurred in by at least two-thirds of all the members of the
Senate." Thus, treaties or conventional international law must go through a process prescribed
by the Constitution for it to be transformed into municipal law that can be applied to domestic
conflicts. (Pharmaceutical and Health Care Association of the Philippines v. Duque, G.R. No. 173034,
October 9, 2007)
Thus, in Mijares v. Rañada, (G.R. No. 139325, April 12, 2005, 455 SCRA 397), the Court declared
that, while it may be true that ―there is no obligatory rule derived from treaties or conventions
that requires the Philippines to recognize foreign judgments, or allow a procedure for the
enforcement thereof,‖ it is also true ―however‖ that ―generally accepted principles of
international law, by virtue of the incorporation clause of the Constitution, form part of the laws
of the land even if they do not derive from treaty obligations. The classical formulation in
international law sees those customary rules accepted as binding result from the combination
two elements: the established, widespread, and consistent practice on the part of States; and a
psychological element known as the opinion juris sive necessitates (opinion as to law or
209
necessity). Implicit in the latter element is a belief that the practice in question is rendered
obligatory by the existence of a rule of law requiring it.‖
―This is a significant proposition, as it acknowledges that the procedure and requisites
outlined in Section 48, Rule 39 derive their efficacy not merely from the procedural rule, but by
virtue of the incorporation clause of the Constitution. Rules of procedure are promulgated by
the Supreme Court, and could very well be abrogated or revised by the high court itself. Yet the
Supreme Court is obliged, as are all State components, to obey the laws of the land, including
generally accepted principles of international law which form part thereof, such as those
ensuring the qualified recognition and enforcement of foreign judgments.‖
As held in Razon, Jr. v. Tagitis, (G.R. No. 182498, December 3, 2009, 606 SCRA 598),
although ―the Philippines has neither signed nor ratified the Convention, so that the country is not yet
committed to enact any law penalizing enforced disappearance as a crime,‖ ― the absence of a specific
penal law, however, is not a stumbling block for action from this Court, as heretofore mentioned;
underlying every enforced disappearance is a violation of the constitutional rights to life, liberty and
security that the Supreme Court is mandated by the Constitution to protect through its rule-making
powers.‖
The Court stressed that ―as a matter of human right and fundamental freedom and as a
policy matter made in a UN Declaration, the ban on enforced disappearance cannot but have its
effects on the country, given our own adherence to "generally accepted principles of
international law as part of the law of the land."
It has been opined that “a treaty is, in its nature, a contract between two nations, not a
legislative act. It does not generally effect, of itself, the object to be accomplished; especially, so
far as its operation is infra-territorial; but is carried into execution by the sovereign power of the
respective parties to the instrument. In the United States, a different principle is established.
―Our constitution declares a treaty to be the law of the land. It is, consequently, to be
regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of
itself, without the aid of any legislative provision. But when the terms of the stipulation import
a contract—when either of the parties engages to perform a particular act, the treaty addresses
itself to the political, not the judicial department; and the legislature must execute the contract,
before it can become a rule for the court.‖ (Chief Justice Marshall, Foster v. Neilson, 27 U.S. (2
Pet.) 253, 313–14 (1829). See THE FEDERALIST No. 75 (J. Cooke ed. 1961), 504–505)
The fact that international law has been made part of the law of the land does not by any
means imply the primacy of international law over national law in the municipal sphere. Under
the doctrine of incorporation as applied in most countries, rules of international law are given a
standing equal, not superior, to national legislation. (Philip Morris, Inc. v. Court of Appeals, 224
SCRA 576, 593 [1993])
Tax treaties can be applied to govern the transactions of non-resident foreign
corporations in our jurisdiction pursuant to the cardinal principle that treaties have the force
and effect of law in this jurisdiction. (Commissioner of Internal Revenue v. Goodyear Philippines,
Inc., G.R. No. 216130, August 3, 2016)
210
Lastly, the effect of the prohibition against the referral decking system is beyond the
authority of this Court to consider. The wisdom of this prohibition has been decided by
Congress, through the enactment of RA No. 10022. Our role in this case is merely to determine
whether our government has the authority to enact the law's prohibition against the referral
decking system, and whether this prohibition is being implemented legally. Beyond these lies
the realm of policy that, under our Constitution's separation of powers, this Court cannot cross.
(Association of Medical Clinics for Overseas Workers, Inc. v. GCC Approved Medical Centers
Association, Inc., G.R. No. 207132, December 6, 2016)
While the principles of sovereign independence and equality have been recognized in
Philippine jurisprudence, our recognition of this principle does not extend to the exemption of
States and their affiliates from compliance with Philippine regulatory laws. (Association of
Medical Clinics for Overseas Workers, Inc. v. GCC Approved Medical Centers Association, Inc., G.R.
No. 207132, December 6, 2016)
The Madrid Protocol does not amend or modify the IP Code on the acquisition of
trademark rights considering that the applications under the Madrid Protocol are still examined
according to the relevant national law. In that regard, the IPOPHL will only grant protection to
a mark that meets the local registration requirements. (Intellectual Property Association of the
Philippines v. Ochoa, G.R. No. 204605, July 19, 2016)
In the context of municipal law, a law takes precedence as against a treaty obligation, for a
treaty may never curtail or restrict the scope of the police power. (Ichong v. Hernandez, 101 Phil.
155)
[Note: In Ichong vs. Hernandez, the petitioner sought to enjoin the enforcement of the Retail Trade
Nationalization Law on the ground, among others, that it was inconsistent with the treaty of amity
between the Philippines and China, the United Nations Charter and the Universal Declaration of Human
Rights. The Supreme Court saw no conflict. ―But even supposing that the law infringes upon the said
treaty,‖ it continued, ―the treaty is always subject to qualification or amendment by a subsequent law
(U.S. v. Thompson, 258 Fed. 257, 260), and the same may never curtail or restrict the scope of the police
power of the State. (Palston v. Pennsylvania, 58 L. ed. 539).‖ (101 Phil. 1155)]
―A state that has contracted valid international obligations is bound to make in its
legislations those modifications that may be necessary to ensure the fulfillment of the
obligations undertaken.‖ (Tañada v. Angara, 388 Phil. 546, 592 [1997], 272 SCRA 18)
As has been observed by US constitutional scholars, a treaty has greater ―dignity‖ than an
executive agreement, because its constitutional efficacy is beyond doubt, a treaty having behind
it the authority of the President, the Senate, and the people; a ratified treaty, unlike an executive
agreement, takes precedence over any prior statutory enactment. (Bayan Muna v. Romulo, G.R.
No. 159618, February 1, 2011, 641 SCRA 244)
Thus, laws and issuances must ensure that the reliefs granted under tax treaties are
accorded to the parties entitled thereto. The BIR must not impose additional requirements that
would negate the availment of the reliefs provided for under international agreements.
211
(Deutsche Bank AG Manila Branch v. Commissioner of Internal Revenue, G.R. No. 188550, August 19,
2013, 704 SCRA 216)
[Note: Likewise, it must be stressed that there is nothing in RMO No. 1-2000 which would indicate
a deprivation of entitlement to a tax treaty relief for failure to comply with the 15-day period. We
recognize the clear intention of the BIR in implementing RMO No. 1-2000, but the CTA‘s outright denial
of a tax treaty relief for failure to strictly comply with the prescribed period is not in harmony with the
objectives of the contracting state to ensure that the benefits granted under tax treaties are enjoyed by
duly entitled persons or corporations. (Deutsche Bank AG Manila Branch v. Commissioner of Internal
Revenue, G.R. No. 188550, August 19, 2013, 704 SCRA 216)]
[Note: Bearing in mind the rationale of tax treaties, the period of application for the availment of
tax treaty relief as required by RMO No. 1-2000 should not operate to divest entitlement to the relief as it
would constitute a violation of the duty required by good faith in complying with a tax treaty. The denial
of the availment of tax relief for the failure of a taxpayer to apply within the prescribed period under the
administrative issuance would impair the value of the tax treaty. At most, the application for a tax treaty
relief from the BIR should merely operate to confirm the entitlement of the taxpayer to the relief.
(Deutsche Bank AG Manila Branch v. Commissioner of Internal Revenue, G.R. No. 188550, August 19, 2013, 704
SCRA 216)]
[Note: The obligation to comply with a tax treaty must take precedence over the objective of RMO
No. 1-2000. Logically, noncompliance with tax treaties has negative implications on international
relations, and unduly discourages foreign investors. While the consequences sought to be prevented by
RMO No. 1-2000 involve an administrative procedure, these may be remedied through other system
management processes, e.g., the imposition of a fine or penalty. But we cannot totally deprive those who
are entitled to the benefit of a treaty for failure to strictly comply with an administrative issuance
requiring prior application for tax treaty relief. (Deutsche Bank AG Manila Branch v. Commissioner of Internal
Revenue, G.R. No. 188550, August 19, 2013, 704 SCRA 216)]
Article VII, Section 21 of the Constitution provides:
SECTION 21. 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.
This provision states the second of two ways through which international obligations
become binding. Article II, Section 2 of the Constitution deals with international obligations that
are incorporated, while Article VII, Section 21 deals with international obligations that become
binding through ratification.
"Valid and effective" means that treaty provisions that define rights and duties as well as
definite prestations have effects equivalent to a statute. Thus, these specific treaty provisions
may amend statutory provisions. Statutory provisions may also amend these types of treaty
obligations. (Air Canada v. Commissioner of Internal Revenue, G.R. No. 169507, January 11, 2016)
[Note: We only deal here with bilateral treaty state obligations that are not international obligations
erga omnes. We are also not required to rule in this case on the effect of international customary norms
especially those with jus cogens character. (Air Canada v. Commissioner of Internal Revenue, G.R. No. 169507,
January 11, 2016)]
212
[Note: The Republic of the Philippines-Canada Tax Treaty was ratified on December 21, 1977 and
became valid and effective on that date. On the other hand, the applicable provisions relating to the
taxability of resident foreign corporations and the rate of such tax found in the National Internal Revenue
Code became effective on January 1, 1998. Ordinarily, the later provision governs over the earlier one. In
this case, however, the provisions of the Republic of the Philippines-Canada Tax Treaty are more specific
than the provisions found in the National Internal Revenue Code. These rules of interpretation apply
even though one of the sources is a treaty and not simply a statute. (Air Canada v. Commissioner of Internal
Revenue, G.R. No. 169507, January 11, 2016)]
Foundlings are likewise citizens under international law. Under the 1987 Constitution, an
international law can become part of the sphere of domestic law either by transformation or
incorporation. The transformation method requires that an international law be transformed
into a domestic law through a constitutional mechanism such as local legislation. On the other
hand, generally accepted principles of international law, by virtue of the incorporation clause of
the Constitution, form part of the laws of the land even if they do not derive from treaty
obligations. (Poe-Llamanzares v. Commission on Elections, G.R. Nos. 221697 & 221698-700, March 8,
2016)
[Note: Generally accepted principles of international law include international custom as evidence
of a general practice accepted as law, and general principles of law recognized by civilized nations.
International customary rules are accepted as binding as a result from the combination of two elements:
the established, widespread, and consistent practice on the part of States; and a psychological element
known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter element is
a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it.
"General principles of law recognized by civilized nations" are principles "established by a process of
reasoning" or judicial logic, based on principles which are "basic to legal systems generally," such as
"general principles of equity, i.e., the general principles of fairness and justice," and the "general principle
against discrimination" which is embodied in the "Universal Declaration of Human Rights, the
International Covenant on Economic, Social and Cultural Rights, the International Convention on the
Elimination of All Forms of Racial Discrimination, the Convention Against Discrimination in Education,
the Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation." These
are the same core principles which underlie the Philippine Constitution itself, as embodied in the due
process and equal protection clauses of the Bill of Rights. (Poe-Llamanzares v. Commission on Elections, G.R.
Nos. 221697 & 221698-700, March 8, 2016)]
While the principles of sovereign independence and equality have been recognized in
Philippine jurisprudence, our recognition of this principle does not extend to the exemption of
States and their affiliates from compliance with Philippine regulatory laws. (Association of
Medical Clinics for Overseas Workers, Inc. v. GCC Approved Medical Centers Association, Inc., G.R.
No. 207132, December 6, 2016)
A political refugee who applies for naturalization be granted citizenship despite
questions on his compliance with the ―lucrative income‖ qualification and the statutory
disqualification founded on the reciprocity rule as prescribed in the pertinent naturalization law
by reason of the provisions of the 1951 Convention Relating to the Status of Refugees and the
1967 Protocol Relating to the Status of Refugees, to which the Philippines is a signatory, which
requires states ―to ensure the facility of their local integration including naturalization.‖ His ―status as
a refugee has to end with the attainment of Filipino citizenship, in consonance with Philippine
statutory requirements and international obligations. Indeed, the Naturalization Law must be
213
read in light of the developments in international human rights law specifically the granting of
nationality to refugees and stateless persons.‖ (Karbasi v. Republic, G.R. No. 216130, August 3,
2016)
As emphasized in Tañada v. Angara (G.R. No. 118295 May 2, 1997), ―when the
Philippines joined the United Nations as one of its 51 charter members, it consented to restrict
its sovereign rights under the "concept of sovereignty as auto-limitation." Thus –
Apart from the UN Treaty, the Philippines has entered into many other international
pacts — both bilateral and multilateral — that involve limitations on Philippine sovereignty. xxx.
In the foregoing treaties, the Philippines has effectively agreed to limit the exercise of its
sovereign powers of taxation, eminent domain and police power. The underlying consideration
in this partial surrender of sovereignty is the reciprocal commitment of the other contracting
states in granting the same privilege and immunities to the Philippines, its officials and its
citizens. xxx.
The point is that, as shown by the foregoing treaties, a portion of sovereignty may be
waived without violating the Constitution, based on the rationale that the Philippines "adopts the
generally accepted principles of international law as part of the law of the land and adheres to the
policy of . . . cooperation and amity with all nations."
[Note: As further explained by the Supreme Court in Nicolas v. Romulo (G.R. No. 175888,
February 11, 2009, 578 SCRA 438, as cited in Bayan Muna v. Romulo, G.R. No. 159618, 1 February 2011, 641
SCRA 244), ―a case involving the implementation of the criminal jurisdiction provisions of the RP-US
Visiting Forces Agreement‖ –
By their nature, treaties and international agreements actually have a limiting effect on
the otherwise encompassing and absolute nature of sovereignty. By their voluntary act, nations
may decide to surrender or waive some aspects of their state power or agree to limit the exercise
of their otherwise exclusive and absolute jurisdiction. The usual underlying consideration in this
partial surrender may be the greater benefits derived from a pact or a reciprocal undertaking of
one contracting party to grant the same privileges or immunities to the other. On the rationale
that the Philippines has adopted the generally accepted principles of international law as part of
the law of the land, a portion of sovereignty may be waived without violating the Constitution.
Such waiver does not amount to an unconstitutional diminution or deprivation of jurisdiction of
Philippine courts.]
214